Vallaj v Special Adjudicator
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE CHADWICK,LORD JUSTICE LONGMORE |
| Judgment Date | 24 May 2001 |
| Neutral Citation | [2001] EWCA Civ 782 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C/2000/3468 and C/2001/0109 |
| Date | 24 May 2001 |
[2001] EWCA Civ 782
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
ON APPEAL FROM CROWN OFFICE LIST
(MR JUSTICE DYSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon Brown
Lord Justice Chadwick
Lord Justice Longmore
Case Nos: C/2000/3468 and C/2001/0109
Mr A. Nicol QC & Mr M. Henderson (instructed by Ms G. Hughes of Avon and Bristol Law Centre) for the Applicant Mr Canaj
Mr I. Macdonald QC & Ms S. Harrison (instructed by Messrs A.S. Law of Liverpool L7 7EL) for the Applicant Mr Vallaj
Mr S. Catchpole (instructed by the Treasury Solicitor) for the Respondents
The applicants in these two linked cases are Kosovar Albanians who resist repatriation to Kosovo and claim asylum here. The essential background to the cases is United Nations Security Council Resolution 1244 by which the powers of government over Kosovo on 10 June 1999 became lawfully vested in UNMIK (United Nations Interim Administration Mission in Kosovo), supported by KFOR (the internal security force for Kosovo). One of UNMIK's main responsibilities was "assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo" under the supervision of UNHCR.
In March 2000 UNHCR published a report stating that the vast majority of Kosovar Albanians who had fled the conflict in Kosovo during 1998–9 had since returned (over 800,000 of them), that whilst there were certain individuals who could face danger on return (for example, those of mixed ethnic origin, those associated with the Serbian regime, and those opposed to the former KLA), most of those remaining in asylum countries no longer had immediate protection needs, and asylum claims not falling into the specified categories "may be considered in accelerated procedures" (although, of course, each claim requires individual consideration).
Neither of these applicants falls into an endangered category. Both are citizens of the Federal Republic of Yugoslavia (FRY), single men of Albanian extraction whose homes were in Kosovo. Each left his village in about March 1999 when the Serb forces invaded, and each returned in June shortly after those forces withdrew and were replaced by KFOR. Each later left Kosovo and eventually came to the UK in the back of a lorry, Canaj on 28 September 1999, Vallaj on 6 April 2000.
Canaj's asylum claim was refused by the Secretary of State on 13 January 2000. His appeal to the Special Adjudicator was allowed on 6 June 2000. The Secretary of State's further appeal to the IAT was allowed on 28 September 2000. On 25 October 2000 the IAT refused leave to appeal to this Court.
Vallaj's asylum claim was refused on 12 April 2000, the Secretary of State certifying it as manifestly unfounded and subject, therefore, to the accelerated appeals procedure. On 19 May 2000 the Special Adjudicator agreed with the certificate and dismissed the appeal. Vallaj then obtained permission to apply for judicial review of the Special Adjudicator's decision, but failed on his substantive challenge before Dyson J on 21 December 2000 and failed also to obtain the judge's permission to appeal to this Court.
Both cases came before Buxton LJ on the documents. Having refused Canaj permission to appeal, he later ordered that Canaj's renewed application be linked to Vallaj's application and both be listed together for hearing by the full court, the appeals to follow if permission were granted. In the event, with the assistance of full and helpful skeleton arguments from both sides, we heard the applications for just over a day and, without calling on the respondents, refused them. We now give our reasons for doing so.
The starting point for considering all the various points sought to be advanced on the appeals is Dyson J's careful reserved judgment in Vallaj extending to 23 pages of transcript. No purpose would be served by repeating large tracts of it here. Rather it should be taken not merely as read but as incorporated in its entirety into this judgment, the two together forming, therefore, a composite whole, this judgment simply following on from that below.
On what grounds, then, does Mr McDonald QC for Vallaj now seek to overturn Dyson J's judgment? His principal argument below, it will be noted, was that the protection being provided by UNMIK and KFOR, because it was not provided by FRY as the country of nationality, is not in law capable of amounting to protection for the purposes of article 1A(2) of the 1951 Convention by which refugees are defined:
"For the purposes of the present Convention, the term 'refugee' shall apply to any person who: … (2) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group for political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country"
This argument was rejected below on each of three grounds advanced by the respondent i.e. because "that country" encompasses either (a) any entity which has the obligation in international law within Kosovo to provide the protection envisaged by the Convention, alternatively (b) any entity which in fact provides such protection with the consent of the "country of nationality" (as UNMIK and KFOR do here with FRY's consent), alternatively (c) any entity which in fact provides such protection with or without a duty under international law to do so and with or without the consent of the country of nationality (this being the view of the IAT in their starred determination in Dyli v Home Secretary [2000] INLR 372). It was, of course, unnecessary for the judge to choose between the three alternatives: it was sufficient to accept that article 1A(2) would certainly be satisfied were protection in fact to be provided by an entity which had both the international law obligation and the country of nationality's consent. None of this, indeed, is now contested: Mr Macdonald concedes that if, as a matter of practical reality, protection is being provided by UNMIK and KFOR, then that is capable of constituting protection for the purposes of the Convention. What I understand him now to argue, however, and it may be simply a repetition or elaboration of the second of his four grounds of challenge identified in paragraph 7(b) of the judgment below, is that UNMIK and KFOR are not in fact providing the necessary protection, at any rate to the standard suggested to be required by the House of Lords in Horvath v Home Secretary [2000] 3 WLR 37Mr Macdonald relies in this regard upon Lord Clyde's speech at 397–8:
"I do not believe that any complete or comprehensive exposition can be devised which would precisely and comprehensively define the relevant level of protection. The use of words like 'sufficiency' or 'effectiveness', both of which may be seen as relative, do not provide a precise solution. Certainly no one would be entitled to an absolutely guaranteed immunity. … There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case. It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended …:
'In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders.'
… The formulation does not claim to be exhaustive or comprehensive but it seems to me to give helpful guidance."
Mr Macdonald points to the UNHCR report of March 2000 stating that "Efforts are continuing to establish effective law enforcement, including an independent judiciary. Despite all efforts, fully functioning legal, judicial, policing and administrative structures are not yet in place." (material reflected in paragraph 47 of the judgment below) and submits that the minimum protection required by the Convention is clearly still not in place in Kosovo.
I would reject this argument. It is perfectly plain that Lord Clyde did not have this type of case in mind when discussing sufficiency of protection in the very different situation arising in Horvath– persecution of Roma gypsies by skinheads in Slovakia. Indeed, were Mr Macdonald's arguments sound, one would have the very remarkable position of UNHCR (the body both responsible generally for refugees under the Convention and, at the time of the March 2000 report, a component organ of UNMIK with direct responsibilities for the resettlement of persons displaced from Kosovo) advising that most Kosovar Albanians could safely be returned and their asylum claims considered in accelerated procedures notwithstanding that the level of protection available to them was insufficient for Convention purposes.
Perhaps recognising that his argument proved too much, Mr Macdonald sought to confine it to those asylum seekers...
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