Upper Tribunal (Immigration and asylum chamber), 2009-03-16, [2009] UKAIT 11 (SI (mixed Serb/Roma parentage))
| Jurisdiction | UK Non-devolved |
| Judge | Mr A L McGeachy, Mr C Thursby, Dr R Kekic |
| Status | Reported |
| Date | 16 March 2009 |
| Published date | 05 May 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 09 October 2008 |
| Subject Matter | mixed Serb/Roma parentage |
| Appeal Number | [2009] UKAIT 11 |
SI (mixed Serb/Roma parentage) Kosovo CG [2009] UKAIT 00011
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
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Heard at Field House |
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On 9 October 2008 Prepared 16 October 2008 |
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Before
SENIOR IMMIGRATION JUDGE MCGEACHY
SENIOR IMMIGRATION JUDGE KEKIC
MR C THURSBY
Between
si
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Hawkin, of Counsel, instructed by Messrs Cranbrook Solicitors
For the Respondent: Mr J Gulvin, Home Office Presenting Officer
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Although there is clear evidence of discrimination against minorities and in particular Roma in Kosovo, the evidence does not demonstrate that there is a real risk that a member of a minority group would face persecution for a Convention reason or treatment contrary to his rights under Article 3 of the ECHR. There is a sufficiency of protection in Kosovo for minorities - including those who have mixed Roma/ Serb parentage - in terms of Regulation 4 (2) of the Refugee or Person in Need of International Protection Regulations 2006.
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The guidance given in SK (Roma in Kosovo – update) Serbia and Montenegro [2005] UKIAT 23, FD (Kosovo – Roma) Serbia and Montenegro [2004] UKIAT 00214 and ES (Ashkaelians, mixed-Ashkaelian ethnicity) Serbia and Montenegro (Kosovo) CG [2006] UKAIT 71 is confirmed and the judgment of the Court of Appeal in Hysi [2005] EWCA Civ 711 is followed.
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Although there were increased tensions among minorities before and after the Declaration of Independence in February 2008 there is no evidence that the anticipated increase in violence materialised or that there ceased to be a sufficiency of protection for minorities in Kosovo.
DETERMINATION AND REASONS
1. The appellant, a Kosovan, who was born on 10 June 1976, arrived in Britain on 11 July 1998, claiming asylum two days later. He was interviewed in July 2002 and again in August 2007. His application was refused on 31 August 2007, directions being made for his removal to Kosovo.
2. The appellant appealed. His appeal was heard by Immigration Judge Robinson on 11 October 2007 and dismissed. Reconsideration of that decision was ordered by Senior Immigration Judge Perkins on 27 November 2007.
3. In paragraph 2 of his determination the Immigration Judge summarised the appellant’s claim. He wrote:-
“2. …He states that his mother was a Serbian and his father was of Roma origin. Both his parents described themselves as Kosovan. In June 1998 Serbian soldiers came to his village. They began killing families and setting fire to houses. They came to his house at night. He heard shots and ran for his life. He was shot in the leg. His father was killed. He left Kosovo soon afterwards and came to the United Kingdom.”
4. In paragraph 7 of the determination the Immigration Judge noted that the appellant said that he did not speak Roma or Serbian as his father had not wanted him to learn those languages. His first and only language is Albanian. In paragraph 25 the Immigration Judge recorded that the appellant had said that his father had worked in Peje, had been accused of being a spy and had been killed. The appellant also said that he had been sent threatening letters before his father was killed.
5. The Immigration Judge found that a statement made in 1998 which had been put to the appellant in 2002 had not been made by the appellant. He therefore did not accept the respondent’s claims that the appellant’s credibility was damaged by discrepancies between what it was claimed the appellant had said in that statement and what he had said at interview. In paragraphs 28 and 29 the Immigration Judge set out his findings of fact as follows:-
“28. I find that the appellant’s core story is believable and that he has dealt with the issues raised in the refusal letter some of which were based on another case. I reach my conclusions on the basis that the appellant is a person of mixed ethnicity and his father, who was of Serbian ethnicity, was killed during the civil war by persons who accused him of being a spy.
29. The appellant has described his fears for himself on return. I consider that he accurately described his feelings, that he does not ‘belong’ in Kosovo as he is not of Albanian ethnicity. Nevertheless I take the view that this does not lead inevitably to the conclusion that he has a genuine fear of persecution. He was able to continue living in his home village for two or three weeks after the death of his father. His mother remained in Kosovo and decided not to leave the country with him. I consider that the appellant would not be regarded as a Serb (he does not speak Serbian). It appears to me that there is nothing about him that would lead any person to believe that he is of mixed ethnicity. In KX, at paragraph 17(5) it was pointed out that Roma do not usually speak Albanian. The appellant clearly does and it was his first language before he left Kosovo. The appellant is not likely, in my view, to be considered either as a Serb or a Roma of mixed ethnicity. His ethnicity may well have been known in his home village. However I take the view that after a lapse of nine years the appellant would not be at risk in the event he returned to Kosovo. He has given evidence that his home village was destroyed. I take the view that he would not be recognised as a person of mixed ethnicity if he returns to one of the Kosovan cities or larger towns. He does not have a partner of a different ethnicity. He is a young man, who speaks Albanian and who left the country with many others at the time of the civil war. I conclude that he would not be at risk from the Albanian speaking majority, especially as Albanian is his first language.”
6. We consider that the comment in paragraph 28 that the appellant’s father was a Serbian is a typographical error as it has been accepted throughout that the appellant’s mother was Serbian and that his father was Roma.
Error of law in the determination of the Immigration Judge
7. On 20 February 2008 Senior Immigration Judge Nichols found that there was a material error of law in the determination of the Immigration Judge. Her reasons for that decision were as follows:
“1. This is a reconsideration of the decision of Immigration Judge Robinson who, on 11th October 2007, dismissed the appellant’s appeal on asylum and human rights grounds against the decision of the respondent on 31st August 2007 to refuse his application for asylum and to remove him to Serbia (Kosovo).
2. The appellant’s case is that his family were of mixed ethnicity. His mother was Serbian and his father of Roma origin. The Immigration Judge was referred to the Tribunal’s decision in KX (Serbia and Montenegro – Kosovo) CG [2006] UKIAT 00072, which deals with the risk to those of mixed ethnicity in Serbia and Montenegro and to the Court of Appeal decision in Hysi [2005] EWCA Civ 711. In Hysi, the Court of Appeal, who were dealing with an appellant who spoke fluent Albanian, as does this appellant, however concluded that on all of the evidence, the Tribunal had not properly assessed risk on return given that the appellant was of mixed ethnicity and that internal relocation may not be reasonable having regard to the background material. This was a case where the Court of Appeal was of the view that on the evidence, mixed ethnicity would inevitably emerge on questioning on return. The case was remitted to the Tribunal for rehearing.
3. The Tribunal ordered reconsideration in this case because as the grounds of the application submit, the Immigration Judge failed to properly consider the risk factors identified in KX and did not consider Hysi at all, despite referring to it in the determination. It was also submitted that the judge had failed to give any or sufficient weight to the latest UNHCR and Amnesty reports which clearly identified persons of mixed ethnicity as being at risk if returned.
4. Both parties agreed before me that there was a material error of law on this basis. Mr Hawkins submitted that the judge had not considered the extensive conclusions made at paragraph 70 of KX, and had relied solely on paragraph 70(5), i.e. that the appellant did speak Albanian. This was wholly inadequate, especially given that he had failed to consider Hysi where that appellant had also been able to speak Albanian, but it was nevertheless held by the Court of Appeal that risk had not been properly determined. The judge ought to have gone through all of the factors identified by the Tribunal in KX and assessed those with regard to the facts established in this case.
5. Ms Isherwood agreed. Mr Hawkin also pointed out there have been developments recently in Kosovo with the Declaration of Independence, and that it was likely that the Tribunal would need to look at the updated background material as to any increased risk for those of mixed ethnicity, and particularly in light of the fact that in this case the appellant’s mother is Serbian and his father Roma.
6. I find that there is a material error of law, because the Immigration Judge has failed to properly consider KX, a country guidance determination, which he was bound to...
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