Upper Tribunal (Immigration and asylum chamber), 2006-09-18, [2006] UKAIT 71 (ES (Ashkaelians, Mixed ashkaelians ethnicity))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr C P O'Brian, Mr C Thursby |
| Status | Reported |
| Date | 18 September 2006 |
| Published date | 20 September 2006 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 05 May 2006 |
| Subject Matter | Ashkaelians, Mixed ashkaelians ethnicity |
| Appeal Number | [2006] UKAIT 71 |
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Asylum and Immigration Tribunal
ES (Ashkaelians, mixed Ashkaelian ethnicity) Serbia and Montenegro (Kosovo) CG
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 5 May 2006
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On 18 September 2006 |
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Before
SENIOR Immigration Judge STOREY
Mr c p o’brian
Mr c thursby
Between
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr R Roebuck, Counsel, instructed by Zelin & Zelin Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer
i) Persons of Ashkaelian ethnicity or mixed Ashkaelian ethnicity do not in general face a real risk of persecution or treatment contrary to Article 3 on return to Kosovo.
ii) This decision replaces as current guidance FM (IFA – Mixed Marriage – Albanian – Ashkaelian) Kosovo CG [2004] UKIAT 00081 and AB (Ashkaelia) Serbia and Montenegro CG [2004] UKIAT 00188. It also replaces FD (Kosovo-Roma) CG [2004] UKIAT 00214 insofar as that decision has any ongoing bearing on the issue of risk to Ashkaelia and persons of mixed ethnicity generally.
DETERMINATION AND REASONS
1. The appellant, born on 22 August 1984, is a national of Serbia and Montenegro from Kosovo. He is of mixed ethnicity, his father being Ashkaelian, his mother Albanian. As we shall see, the background evidence contains numerous variations in how “Ashkaeli” and “Ashkaelian” are spelt, but we adopt the spelling most commonly utilised by the Tribunal. The appellant arrived in the United Kingdom on 21 July 1999 and applied for asylum. His application was refused on 6 December 2001. Being a minor he was however, granted exceptional leave to remain for twelve months. He applied for this to be extended. On 20 May 2004 the respondent refused to vary his leave. He appealed on asylum and human rights grounds. His appeal was heard by the Adjudicator, Mr L.J.R. Lobo. In a determination notified on 21 December 2004 he allowed the appellant's appeal on asylum and human rights grounds (including Article 8).
2. By virtue of transitional provisions made under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 the permission to appeal which was granted to the respondent took effect as an order for reconsideration. On 13 March 2006 an AIT panel consisting of Mr P.S. Aujla, Immigration Judge, Mrs M.L. Roe and Mr D.R. Bremmer JP, found that there was a material error of law. Their reasons were as follows:
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The Secretary of State for the Home Department (the Respondent) applies with permission of the Tribunal for reconsideration of the determination of an Adjudicator (Mr L J R Lobo) allowing the Appellant's appeal on both asylum and human rights grounds against the Respondent's decision of 20 May 2004 refusing to vary the Appellant's leave to enter or remain.
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The Appellant, born on 22 August 1984, is a citizen of Serbia and Montenegro (Kosovo). He arrived in the United Kingdom on 21 July 1999 and claimed asylum on arrival. The Respondent refused his claim for the reasons set out in his letters of 06 December 2001 and 20 of May 2004. However, he granted him exceptional leave to remain until 21 August 2002. The Respondent refused to vary the Appellant’s leave to enter or remain on 20 May 2004. The Appellant appealed against the Respondent's decision. The Adjudicator heard the appeal on 07 December 2004 and allowed it in his determination promulgated on 21 December 2004. The Respondent appealed against the Adjudicator's decision. The Tribunal granted permission to appeal on 07 February 2005.
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Permission to appeal was granted by the Immigration Appeal Tribunal. Following the commencement of the appeal provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and by virtue of article 5 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, the grant of permission takes effect as an order for reconsideration of the Appellant’s appeal limited to the grounds upon which permission to appeal was granted.
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The Appellant claimed to be a refugee. He stated that he belonged to a mixed ethnicity. His father was Ashkaelian and his mother was Albanian. His family were persecuted by the Serbian authorities due to the Albanian links. In August 1998 Serbian police officers came to his home in search of evidence of KLA support. They beat the Appellant and his father and the house was ransacked. The same incident occurred in January 1999 and in March 1999. The Appellant was ordered to leave Kosovo. He hid in neighbouring forest. A month later his home was burnt down and he decided to flee Kosovo to avoid further incidents. The Appellant came to the United Kingdom with his cousin. He feared persecution from the Serbian authorities if returned.
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The Adjudicator set out his findings on asylum in paragraphs 19 and 20 of the determination. He stated that the Appellant would be easily recognised as belonging to mixed ethnicity and he therefore would be at risk on return. He also considered article 8 and found that the Appellant had an established family life with his cousin and that he also had an established private life. His removal would constitute an interference which would not be proportionate. He dealt with the proportionality issue in paragraphs 28 and 29. He allowed the appeal on both asylum and human rights grounds.
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Both representatives agreed that there was a material error of law on the part of the Adjudicator in respect of his asylum determination. We agreed. The Respondent had placed before the Adjudicator at the hearing a copy of the country guidance decision of the Tribunal in FD (Kosovo - Roma) CG [2004] UKIAT 00214 in which the Tribunal clearly stated that the evidence as a whole did not justify the conclusion that the ethnic discrimination and violence to which Roma were at times subjected from other groups was of a level or frequency to mean that it constituted a real risk of persecution for a Convention reason. They agreed that the Adjudicator had allowed the asylum appeal whilst ignoring the country guidance decision. We were satisfied that there was a material error of law on the part of the Adjudicator.
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There was no dispute between the parties before us as to the need for this matter to be adjourned for further reconsideration. The sole issue was whether or not both asylum and article 8 should be reconsidered. Mr Ouseley stated that the appeal should be considered as a whole, including article 8. Mr Richardson, however, stated that the ground of appeal which related to article 8 had only challenged the Adjudicator’s approach to article 8 (in view of DM Croatia) but had not challenged the substantive disposal of the proportionality issue by the Adjudicator.
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Mr Ouseley submitted that the Respondent’s ground 2 adequately covered the whole article 8 issue. That ground had adequately identified the error of law and therefore, since the Adjudicator’s determination of the article 8 claim by reference to his finding of family life and the proportionality exercise was flawed, the whole article 8 issue should be reconsidered.
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Mr Richardson submitted on the other hand that ground 2 did not identify an error of law in terms of attacking the Adjudicator’s substantive disposal of the article 8 issue. It only challenged his approach in that it was not in accordance with DM. He submitted that it was not open to us to set aside the Adjudicator’s disposal of the article 8 claim, however erroneous it was, since ground 2 did not specifically attack the substantive disposal. He relied on Miftari and the comments of Mr Justice Collins in Wani as to the extent of our jurisdiction. He submitted that, on the basis of ground 2, it was not open to us to interfere with the Adjudicator’s substantive decision on article 8.
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We considered the matter and came to the conclusion that Mr Richardson's submission made sense. We were satisfied without doubt that the Adjudicator’s determination of article 8, both in his finding of family life and his decision on proportionately, was completely erroneous. However, we agreed with Mr Richardson that the Respondent’s ground 2 only attacked the Adjudicator’s decision to embark on considering article 8. It did not attack the substantive decision made by the Adjudicator. If the Respondent were to invite us to set aside the article...
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