DK (Return-Ethic Serb- Upheld SK-Accommodation) Croatia CG  UKIAT 00153
Date of hearing: 20th October 2003
Date Determination notified: 20 November 2003
|Secretary of State for the Home Department||RESPONDENT|
The Adjudicator's decision
"However, unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either Convention."
"This last provision is of significance, not only because it gives a clear steer to Tribunals that they should avoid remitting cases to special adjudicators, no doubt because such remission will involve delay, but also because it indicates that the Tribunal has, where possible, to conduct any determination which will enable it finally to dispose of an appeal itself.
Particularly when determining appeals brought where it is necessary to give consideration to the general situation in particular parts of the world, it is important for Tribunals, when appropriate, to give their views as to that situation, so far as relevant, to claims for asylum in that part of the world.
In administering the asylum jurisdiction, the Tribunal (whether it be a special adjudicator or an Appeal Tribunal) has to consider not only whether the individual asylum seeker has the necessary subjective fear to be regarded as someone who is entitled to asylum, but in addition it has to be satisfied that that fear is well-founded. Whether or not that fear is well-founded involves applying an objective standard, a standard which will depend upon the state of affairs in that particular country as well as the circumstances of the individual asylum seeker.
It will be beneficial to the general administration of asylum appeals for special adjudicators to have the benefit of the views of a Tribunal in other cases on the general situation in a particular part of the world, as long as that situation has not changed in the meantime. Consistency in the treatment of asylum seekers is important insofar as objective considerations, not directly affected by the circumstances of the individual asylum seeker, are involved."
"Their homes in Croatia have either been destroyed or taken over by Croats or any tenancy rights which they may have had have been removed. They have lost and cannot regain employment. There is chronic unemployment and economic hardship but the Serbs are at the bottom of the heap. The present regime has failed to recognise and so to 'convalidate' their pension rights which should have continued to accrue while the Serbs were in control. While it is recognised and to an extent accepted that central Government is trying to uphold minority rights and encourage the return of ethnic Serbs who had fled Croatia and who for good reason failed to return while the HDZ under Tudjman was in control, it is contended that the Government's instructions are being frustrated at local level by continuing discrimination, by judicial and bureaucratic incompetence and failures and by unwillingness or inability to remedy the situation. In addition … there is, it is said, a real risk that prosecutions for alleged war crimes will be pursued on the basis of collective responsibility notwithstanding that individuals cannot themselves be proved to have done anything which could properly be regarded as a war crime."
"We have, we hope, cited enough to identify the real difficulties and discrimination that undoubtedly face Serbs if returned. The Government has the right intentions but is still being frustrated at lower levels. However, the Government is undoubtedly taking steps to improve the situation and in June 2002 the UNHCR/Stability Pact for South Croatian Europe under the heading 'Return Programme of the Government of Croatia' states:
'UNHCR continues to support directly the return Programme of the Government of Croatia, accepting and assisting with the processing of return applications. …'
While [returning] numbers are small in the context of the total of Serbs who fled, it is clear that the UNHCR is still encouraging return. And later in the same report it notes that the Government of Croatia has 'agreed to accept all persons who sign a waiver that they will accept collective accommodation if their housing is not habitable or if there is no host who will accept them. In particular, the Government of Croatia indicated that it would prioritise Croatian Serbs being evicted from BH (Bosnia-Herzegovina) for return and provision of accommodation'. It is further noted that the Croatian Government had 'undertaken to assist returnees in their reintegration by providing a basic assistance depending on monthly income for a six-month period following confirmed returnee status, although in practice, a lack of funds has caused delays. The assistance includes cash grants, medical coverage and other legal and social benefits'. It may be said with some force that the situation on the ground is not so satisfactory since there are bureaucratic delays and obstructions because of local officials' reluctance to follow the Government's lead. We recognise that, but remain of the view that, whatever the pressures on it and notwithstanding its obvious concern to cease to have to be concerned to assist those who would otherwise be refugees, the UNHCR would not encourage return if persuaded that there would be persecution contrary to the Refugee Convention or, indeed, treatment contrary to Article 3 of the European Convention on Human Rights.
"As will no doubt be apparent, we are satisfied that there has been no worsening of the situation since we decided S and in any event the material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the European Convention on Human Rights. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused by it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian Government, despite the difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection. It follows that we accept the submissions made by Mr Wilken, set out in detail in his skeleton argument and more particularly in Annex 2 to it. Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by a proper control of immigration."
"Despite the hardship that the claimant will undoubtedly suffer resulting from the fighting in his country, he does not show any special circumstances which mean that he can establish that he should be given the benefit of either Convention. For the reasons which we have given, therefore, we take the view that the adjudicator's conclusion was wrong and this appeal must be allowed."
The new material
"During the reporting period from November 2002 to July 2003, the Croatian Government's efforts within most parts of the Mission's mandate were characterised by increasing determination in comparison to previous reporting periods. While this report again highlights long-standing Mission concerns in core areas, there are enough preliminary indicators to suggest that this reporting period could be a turning point with regard to the Government's stated commitment to address the issues within the Mission's mandate.
There has been progress in the legislative and administrative framework for return, but implementation of many decisions remains laggard, due in part to the absence of a suitable working body for Government and international community interaction.
There has not been any significant increase in the pace of return of occupied private property after the adoption of legislative changes in August 2002. In April the Government adopted a decision on compensation to owners of occupied housing who still cannot repossess their homes, but the payment of such compensation had not yet started by the beginning of July. Problems remain with regard to multiple or illegally occupied properties, including cross-border cases in Bosnia and Herzegovina. Other problems relate to the lack of enforcement of eviction orders and looting of properties prior to the departure of temporary occupants.
Government efforts at property reconstruction are advancing well and reconstruction assistance is becoming widely available to minority beneficiaries. The Mission and its international partners have encouraged the Government to complete the remaining 26,000 reconstruction applications by the end of 2003, the bulk of which are from Serbs.
The Government's acknowledgement in early 2003 that a remedy should be found for returnees who previously lived in apartments with occupancy/tenancy rights was a significant positive development."
"Notable action taken by the Government in June to initiate a system of housing care for former holders of occupancy/tenancy rights who wish to return to Croatia is an important step in resolving a significant barrier to return.
Yet the return of refugees and displaced persons of Serb ethnicity is now taking place at a slower pace than in previous years. During the first six months of 2002, 6,026 minority returnees were registered, while during the first five months of 2003 the number was only 3,070. Further, current research suggests that while most Croat returnees have re-established themselves, only about two thirds of present minority refugee return can be considered 'sustainable'. Minority Serb returnees and displaced persons cite housing problems and the lack of employment possibilities along with legal, administrative and psychological obstacles as hindrances to their return and reintegration into Croatian society.
The housing problems experienced by minority returnees and potential returnees are largely a consequence of the need to reconstruct up to 20,000 houses for Serb applicants, the slow process of private property repossession, and the absence, until recently, of any solutions to the issue of terminated occupancy/tenancy rights. While the Prime Minister's call in June for all refugees to return to Croatia was a notable step forward, this needs to be followed up by a more concerted demonstration of political will and action in order to overcome the discriminatory legacy of the pre-2000 Government and to establish a more positive atmosphere conducive to the return of refugees and displaced persons among receiving communities.
By contrast, the return of the Croat majority to their pre-war domiciles is essentially completed."
"In June 2003, the number of heavily damaged or destroyed Serb properties under state-sponsored reconstruction was several times higher than in the entire preceding seven post-war years."
Some 1,500 houses for Serbs were under construction and it had been stated by the Deputy Prime Minister in mid-2003 that Serbs owned 75 percent of the houses to be reconstructed during 2003. The Human Rights Watch Report welcomed this improvement in the previously discriminatory process.
Article 3 submissions
MR JUSTICE OUSELEY