KX (Mixed marriages-Roma-Albanian - Januzi applied) Serbia and Montenegro (Kosovo) CG  UKAIT 00072
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 9 May 2006
Date Determination notified: 20 September 2006
|Secretary of State for the Home Department||RESPONDENT|
For the appellant : Mr G Denholm, Counsel Instructed by Sunny Leong & Co Solicitors
For the respondent: Mr P Deller, Home Office Presenting Officer
DETERMINATION AND REASONS
Where there is a visible difference in skin colour and the Roma partner speaks no, or accented, Albanian, Roma-Albanian mixed marriages and relationships akin to marriage in Serbia and Montenegro (Kosovo) put both parties at risk. The country background evidence now distinguishes between the risk to Roma and their partners, who remain at risk because they are perceived by the Albanian community as traitors and Serb collaborators, and Ashkaelia and Egyptians whose position is not as serious.
Roma-Albanian couples cannot access the protection either of the Roma enclaves or the Albanian community and unless either party will normally be perceived as a member of the other community, the parties to such a relationship are at general risk of persecution or serious harm from individuals in both communities because the risk is from non-state actors and there is, in general, insufficient protection from either Serbia and Montenegro (Kosovo) state bodies or from K-FOR and other NGOs.
This determination updates and replaces (in relation to Roma-Albanian relationships) the Tribunal's decisions in FM (IFA–mixed marriage–Albanian-Ashkaelian) Kosovo CG  UKIAT 00013, SK and others (Roma in Kosovo-update) Serbia and Montenegro CG  UKIAT 00023, BS (IFA –mixed ethnicity) Kosovo CG  UKIAT 04254, FD (Kosovo-Roma) Kosovo CG  UKIAT 00214 and AB (Ashkaelia) Kosovo CG  UKIAT 00188.
"[KX's] claim to face risk as the 'partner' of a Roma woman could not reasonably be dismissed on the basis that they are not married given the length of time they have been living together. However the appeal could not succeed on the basis of risk to the 'partner' herself given that she chose to withdraw her [asylum] application and let her case proceed as a dependant of [KX]."
Second stage reconsideration hearing
"Whether [KX] and [AB] would face a real risk of persecution on return to Kosovo on account of
(i) [AB's] ethnicity as a Roma gypsy, and
(ii) Their mixed marriage (that being an additional risk category recognised by UNHCR and indeed other parts of the objective evidence including the CIPU report)."
Evidence before Tribunal
Agreed facts and matters
"(a) [KX] is an ethnic Albanian; [AB] is a Roma gypsy.
(b) They married in August 1998 but the marriage is not formally registered.
(c) They did not cohabit in Kosovo because of a perceived threat to them based upon their relationship.
(d) [KX] fled Kosovo in late 1998 and the parties were reunited in Macedonia before travelling on to the UK.
(e) They arrived in the UK in September 1999.
(f) They have lived together as man and wife ever since.
(g) They intend to live together on return to Kosovo."
Oral evidence of AB (KX's wife)
"23. If I return with my wife to a country where there is a reasonable degree of likelihood that she will be subjected to further grave physical abuse for racial reasons that puts me in a situation where there is a reasonable degree of risk that I will be persecuted. It is possible to persecute a husband or a member of a family by what you do to other members of his immediate family. The essential task for the decision taken in these sorts of circumstances is to consider what is reasonably likely to happen to the wife and whether that is reasonably likely to affect the husband in such a way as to amount to persecution of him."
"14. Against the described developments and constraints for ethnic minorities UNHCR is concerned in particular for Kosovan, Serb and Roma communities as well as for ethnic Albanians in a minority situation. Therefore the Office maintains and reiterates the position that members of these groups should continue to benefit from international protection in countries of asylum under the 1951 Convention or complementary forms of protection depending on the circumstances of claims. For these groups and individuals, return should only take place on a strictly voluntary basis in safety and dignity in a coordinated and gradual manner such return to be sustainable needs to be supported by reintegration assistance.
15. With regard to Ashkaelia, Egyptian as well as Bosniak and Gorani communities, these groups appear to be better tolerated in spite of a single, but very serious incident against the Ashkaelian community in Vushtrri/Vucitrin during the March 2004 attacks. In the light of that incident the August 2004 advice from UNHCR included the Ashkaelian and Egyptian communities among those with a continuing need for international protection. However in the light of the developments since then UNHCR's position is currently that these groups may have individual valid claims for continued international protection which would need to be assessed in a comprehensive procedure."
"Persons in ethnically mixed marriages and persons of mixed ethnicity; persons perceived to have been associated with the Serbian regime after 1990."
That category remains in the current report.
17. The Appellant is not a Kosovo Albanian but he is married to one. Plainly the main groups of mixed marriages that can cause security difficulties in Kosovo are marriages between ethnic Albanians and ethnic Serbs, and the Roma who are more perceived by the Albanians as being allied to the Serbs. This is because of the continuing tension between the two communities and the need particularly for the ethnic Serbs and Roma to concentrate in their own communities for security and protection. A mixed marriage between an Albanian and a Serb could mean difficulties in both communities and greater exposure to risk.
18. The situation for Ashkaelia is however rather different. They have associated themselves traditionally with the Albanian community. The Appellant has lived in the majority Albanian community for much of his life. Having an ethnic Albanian wife would make it easier for him to identify himself with the Albanian community in the way described in the objective evidence. The evidence that they have experienced difficulties themselves in the past in Kosovo is very limited and vague. In any event UNHCR advice is only that claims from people in mixed marriages should be carefully considered. This we have done. "
Secretary of State's Submissions
Discussion and reasons
"Whether [KX] and his wife would face a real risk of persecution on return to Kosovo on account of
(i) [AB's] ethnicity as a Roma gypsy, and
(ii) Their mixed marriage (that being an additional risk category recognised by UNHCR and indeed other parts of the objective evidence including the CIPU report)."
Country background evidence on mixed marriages
"3.6.16 Conclusion. Societal discrimination against Roma in Serbia and Montenegro is widespread and some Roma may be subject to physical attacks. However, in general this discrimination does not amount to persecution and the authorities are willing to offer sufficiency of protection although the effectiveness of this protection may be limited by the actions of individual police officers/Government officials. However, internal relocation is an option and it is not unduly harsh for Roma to relocate to another part of Serbia and Montenegro where they will not face persecution."
"3.10.6 Conclusion Ethnic Albanians accused of/or perceived to have collaborated with the Serb authorities may face discrimination and ill-treatment in Kosovo. However, in the majority of cases sufficiency of protection is available and internal relocation is an option, therefore claimants from these categories of claim are unlikely to qualify for asylum or Humanitarian Protection. However, it should be noted that such cases are unlikely to be clearly unfounded.
3.10.7 Relatives of those who are accused of/or perceived to have collaborated with the Serb authorities may also face discrimination and ill-treatment in Kosovo, however, in the majority of cases sufficiency of protection is available and internal relocation is an option. Therefore claimants who apply on the basis of a relative's involvement/ or perceived collaboration with the previous Serb régime are unlikely to qualify for asylum or Humanitarian Protection. However, it should be noted that such cases are unlikely to be clearly unfounded."
"3.11 Kosovans of mixed ethnicity and those in ethnically mixed marriage
3.11.1 Many claimants will apply for asylum or make a human rights claim based on ill treatment amounting to persecution at the hands of the general ethnic Albanian population and/or their own minority group due to their mixed ethnicity or involvement in an ethnically mixed marriage.
3.11.2 Treatment. People in mixed marriages with people from ethnic minorities or children from such families may face similar difficulties as those groups. Unlike other minority groups, mixed families may be excluded from all communities and may be unable to resort to the relative security of mono-ethnic enclaves. UNHCR reiterated their position in June 2006 that persons in ethnically mixed marriages and persons of mixed ethnicity may have a well founded fear of persecution.
3.11.3 The ability to speak fluent Albanian is likely to be a factor in the degree to which any minority group are able to integrate with the majority community.
3.11.4 Sufficiency of protection …
3.11.5 In general there is sufficiency of protection for Kosovans of mixed ethnicity and those in ethnically mixed marriages. UNMIK/KPS/K-FOR are able and willing to provide protection for those that fear persecution and ensure that there is a legal mechanism for the detection, prosecution and punishment of persecutory acts. In general, an ethnically mixed claimant who speaks Albanian and can physically pass as an Albanian will be less at risk than those who do not speak Albanian and are easily distinguishable as being from a minority group.
3.11.6 Internal Relocation UNMIK regulations and the constitutional framework provide for freedom of movement throughout Kosovo; however, inter-ethnic tensions and real and perceived security concerns restricted freedom of movement for some minorities. There is in general freedom of movement for ethnic Albanians in Kosovo (outside of the Serb enclaves) and caseworkers should consider that internal relocation is normally possible, for claimants that can pass as an ethnic Albanian, to another part of Kosovo, where a claimant's ethnic background is unlikely to be known and hence where there is not a real risk of persecution, notwithstanding UNHCR and UNMIK's reservations about the return of this group to Kosovo at this time. .. However, some claimants with mixed ethnicity and/or those in ethnically mixed marriages who are easily distinguishable as a member of a minority group may face limitations on their ability to internally relocate….
3.11.8 Conclusion Kosovans of mixed ethnicity and/or those in mixed marriages may face discrimination and ill-treatment in Kosovo from either the ethnic Albanian population or from members of their own minority group or sometimes both. However, in the majority of cases claimants will identify with and be accepted as one of the ethnicities that make up their mixed ethnicity and will be treated as such by the other ethnic groups in Kosovo. In most cases language will be the key factor in identifying which group a particular claimant can be identified with.
3.11.9 Those who speak Albanian and can pass as an ethnic Albanian
In general an applicant of mixed ethnicity who speaks Albanian and can pass as an ethnic Albanian to strangers (looked like an Albanian etc) is unlikely to be identified as being of mixed ethnicity outside of his home area. Therefore, the applicant would be able to internally relocate to another area of Kosovo where his ethnicity would not be known. Claimants from this category of claim are therefore unlikely to qualify for asylum or Humanitarian Protection and are likely to be clearly unfounded.
3.11.10 Those who can not speak Albanian but who can pass as a member of a minority ethnic group
Those who do not speak Albanian but who can pass as a member of a minority ethnic group are unlikely to be identified as being of mixed ethnicity outside their home area and will be treated in the same way as other members of that minority group. Caseworkers should assess each claim in line with the relevant section of the OGN and in line with the policy for that particular ethnic group. For example a mixed ethnicity Gorani/Albanian who speaks Gorani and can pass as a Gorani will be treated as a Gorani within Kosovo and so should be assessed in line with the policy advice on Gorani contained in section 3.16 of this OGN.
3.11.11 Those who can not speak Albanian and who can not pass as a member of a minority ethnic group
A few claimants of mixed ethnicity who do not speak Albanian will also not be able to pass as a member of minority ethnic group and are likely to be identified as being of mixed ethnicity and as a result be in a worse position that those of minority ethnic groups. However there is generally a sufficiency of protection available through UNMIK/K-FOR/KPS and therefore claimants from this category of claim are unlikely to qualify for asylum or Humanitarian Protection but are unlikely to be clearly unfounded."
"Kosovo Serbs, Roma and Albanians in a minority situation
24. Given the present fragile security situation in Kosovo and serious ongoing limitations to the fundamental human rights of Kosovo Serbs, Roma and Albanians in a minority situation, UNHCR maintains its position that persons in these groups continue to be at risk of persecution, and that those minorities having sought asylum abroad should be considered as falling under the provisions of Article 1 A (2) of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Where a State feels unable to grant refugee status under the law, but the individual is not excluded from international protection, a complementary form of protection should be granted. The return of individuals belonging to these groups should only take place on a strictly voluntary basis. Individuals who express a wish to return voluntary should be able to do so freely and with the full knowledge of the current situation in Kosovo."
"Other vulnerable categories of persons
26. In the current complex situation of Kosovo, individuals from groups not mentioned above may also have a well-founded fear of persecution for reasons covered by the 1951 Convention and the 1967 Protocol. These individuals may originate from ethnic minority groups not specified as being at high risk, or may belong to other vulnerable categories of persons. Examples may include but are not limited to
• Persons in ethnically mixed-marriages and persons of mixed ethnicity;
• Persons perceived to have been associated with the SCG authorities after 1990…
27. Furthermore, asylum-seekers who do not qualify for 1951 Convention refugee status may still be protected against return if non-refoulement obligations under international or regional human rights law apply." [Emphasis added]
Expert report of Alex Standish
"In the absence of a human rights Court and a special chamber within the Supreme Court dealing with Constitutional Framework-related issues, the Ombudsperson continues to be the only functioning human rights protection mechanism in place. Due to the limited powers that his mandate brings with it, however, the Ombudsperson cannot fill the gap left by the absence of such courts."
"Combating serious crime…has proven to be difficult for the KSP [Kosovo Police Service] and the justice system. It is hampered by family or clan solidarity and by the intimidation of witnesses and judicial officials. For inter-ethnic crimes, the law enforcement mechanism is also weak…far too few perpetrators are ever brought to justice…When perpetrators remain at large, a sense of impunity prevails. Where there is freedom of movement for the perpetrators, it is hard to convince the victim that he or she enjoys the same freedom."
"The justice system failed to send out a clear message to the population condemning this type of violence. Such a response does not serve as a sufficient deterrent from engaging in public disorder on a similar massive scale and therefore does not fulfil the full potential of the preventive function of the justice system…Witness intimidation in Kosovo has affected numerous criminal proceedings in the past, particularly those of a sensitive or high profile nature."
"65. Since security for ethnic and religious minorities is a province-wide problem and cases of violence and intimidation have been documented across Kosovo, I do not consider that internal relocation could offer any degree of additional security to an ethnic Albanian who is married to a woman who could be identified as Roma, whether by her physical characteristics or her accent. In view of the small size of Kosovo's population (around two million, or less than 30% that of central London), and the very tight-knit nature of ethnic Albanian society, I think that it is unlikely that a person who is in a mixed Roma-ethnic Albanian marriage could conceal the fact. A newcomer in any post-conflict Kosovo community is likely to attract very considerable scrutiny and the local Albanian authorities can be relied upon to investigate such individuals on the grounds that they might be collaborators with the Serbs or suspected war-criminals. In addition, widespread internal displacement of people from villages and smaller towns throughout Kosovo has also increased significantly the risk of meeting former neighbours and acquaintances, thus raising the likelihood of identification of a person seeking to conceal his or her identity or ethnic origins."
"21…[the San Remo experts in 2001] considered that where the risk of being persecuted emanates from the State (including the national government and its agents) internal relocation "is not normally a relevant consideration as it can be presumed that the State is entitled to act throughout the country of origin". UNHCR Guidelines of July 2003 similarly observe (paragraph 7I (b)):
"National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available."
There can, however, be no absolute rule and it is, in my opinion, preferable to avoid the language of presumption. The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of the persecution giving rise to the claimant's well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department  EWCA Civ 74  1 WLR 1891, paragraph 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts."
" 47. The question where the issue of internal relocation is raised can, then, be defined quite simply. As Linden JA put it in Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682, 687, it is whether it would be unduly harsh to expect a claimant who is being persecuted for a Convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad. The words "unduly harsh" set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there."
(1) whether there is a risk of persecution in the claimant's 'ordinary place of domicile';
(2) if so, whether it is from agents of the state authorised or directed by the state to persecute; from agents of the state whose persecution is connived at or tolerated by the state or not restrained by the state; or by those who are not agents of the state, but whom the state does not or cannot control. it is for the decision maker to decide on the material available where, on that spectrum, the particular case falls;
(3) the closer the link between the persecution and the state, the greater the control of the state over those acting or purporting to act on its behalf, the more likely that a victim of persecution in one place will be similarly vulnerable elsewhere, and the converse may also be true;
(4) all of the above findings depend on a fair assessment of the relevant facts; and
(5) the Tribunal must ask itself whether it is unduly harsh to expect a claimant who is being persecuted for a convention reason in one part of his country to move to a less hostile part before seeking refugee status abroad;
(6) relocation will not be 'unduly harsh' if the claimant can lead a relatively normal life in the proposed place of relocation, judged by the standards prevailing in his country of origin, and can reach the less hostile part without undue hardship, or undue difficulty.
(1) Roma in Kosovo in general live in conditions of considerable difficulty, with discrimination and victimisation and some risk of violence, but which, unless exceptional circumstances are shown, will not amount to a risk of persecution engaging the Refugee Convention or of serious harm engaging Article 3 ECHR.
(2) Nevertheless, the majority Albanian population continues to suspect all Roma continue of being Serb collaborators and 'traitors'; the domestic protection available is the Roma enclaves, and Roma with access to those enclaves are, absent special circumstances relating to them personally, safe to the Horvath standard.
(3) Roma-Albanian marriages are very rare because both the Roma and Albanian communities are strongly opposed to intermarriage and may take revenge on the member of the other community with a degree of impunity, enforcing the Kanun of Lek.
(4) An Albanian who marries a Roma person will be treated by the Albanian population in the same way as Roma are treated. An Albanian man who becomes involved with a Roma woman will be considered to have demeaned himself and can expect to be isolated by his local community, or suffer a revenge attack;
(5) Roma do not usually speak Albanian and when they do it will be accented. Having regard to skin colour differences and differences of accent, it will be extremely unusual for a Roma woman to be perceived from her physical appearance and language abilities as Albanian or an Albanian man be perceived as Roma. A Roma woman is expected to support her community by marriage to, and children with, a Roma man. She is at risk of violence, including sexual violence, from her own community if she establishes a relationship outside the Roma community and seeks to remain within the enclave. She is also at risk of violence from Albanians outside the enclave as they will disapprove of the relationship of an Albanian man with a 'low person' and perceived traitor from the Roma community;
(6) Any risk of harm to Roma and those treated as Roma, whatever its level, comes not from the state or its agents (whether by instruction or connivance). Instead, Roma suffer discrimination from the ordinary population of Kosovo which the state is unable completely to control, but which ordinarily falls below the high standards required to establish persecution or cruel, inhuman or degrading treatment or torture. In general the enclaves provide protection to the Horvath standard;
(7) In general, there is no internal relocation option in Kosovo for couples in a Roma-Albanian mixed relationship: because of the hostility from both communities, they cannot access the Roma enclaves for protection or look to the Albanian community for shelter unless one of them can 'pass' as a member of the other community on sight, and when speaking. The test is not whether they can do so with significant effort and deceit, but whether an ordinary member of the community in which the person wishes be perceived as belonging would not notice that they were a member of the other community.
(8) If a couple arrives as strangers in a place where they are not known, there will be understandable local interest in them. In effect, they will be investigated to see why they are no longer living in their original area. Differences of ethnicity are very likely then to be identified, putting them at risk in the new community where they have sought refuge. Those who are associated with identifiable Roma are likely to be treated as Serb collaborators and possible war criminals. There is a significant risk of violence against them if that link is made.
(9) There is not, at present, a sufficiency of protection for victims of inter-ethnic violence in Kosovo. Although there are attempts to protect, the judicial route is not always open and when it is, lesser charges are preferred, there are difficulties with witnesses, and the penalties imposed are at or below the minimum sentence for those lesser offences. UNMIK itself says that the risk of persecution engages the Refugee Convention, and UNHCR agrees.
Decision on the present appeal
Refugee Convention and Article 3 ECHR
Article 8 ECHR
The original Tribunal made a material error of law.
The following decision is accordingly substituted:
1 The appeal is allowed on asylum grounds
2 The appeal is allowed on human rights grounds
Signed Date: 10 August 2006
Senior Immigration Judge Gleeson
SCHEDULE OF MATERIALS BEFORE THE TRIBUNAL
1 Horvath v. Secretary of State For The Home Department  UKHL 37;  3 All ER 577;  3 WLR 379
2 Secretary of State for the Home Department v Razgar  UKHL 27
3 Januzi v Secretary of State for the Home Department and others  UKHL 5
4 Katrinak v Secretary Of State For Home Department  EWCA Civ 832
5 Secretary of State for the Home Department v Bahktear Rashid EWCA Civ 744
6 Secretary of State for the Home Department v Amjad Mahmood  EWCA Civ 315
7 Secretary of State for the Home Department v Akaeke  EWCA Civ 947
8 Hysi v Secretary of State for the Home Department  EWCA Civ 711
9 BS (IFA, Mixed Ethnicity) Kosovo CG  UKIAT 04254
10 KB (mixed ethnicity, Roma/Albanian) Kosovo CG  UKIAT 00013 CG
11 FM (IFA-Mixed Marriage-Albanian-Ashkaelian) Kosovo CG  UKIAT 00081
12 AB (Ashkaelia) Kosovo CG  UKIAT 00188
13 FD (Kosovo - Roma) Kosovo CG  UKIAT 00214
14GS (Article 8, public interest not a fixity) Serbia and Montenegro  UKAIT 00121
15MM (Delay, reasonable period, Akaeke, Strbac) Serbia and Montenegro  UKAIT 00163
16SK (Roma in Kosovo – update) Serbia and Montenegro  UKIAT 00023
17 Appellant S 395/2002 v Minister for Immigration and Multicultural Affairs  High Court of Australia (9 December 2003)
1 Alex Standish Report (18 March 2006)
2 UN Security Council Report (October 2005)
3 Home Office CIPU
(a) Country Report Serbia and Montenegro (April 2005)
(b) Operational Guidance Note Kosovo (May 2006)
(c) Operational Guidance Note Serbia (Including Kosovo) (June 2006)
4 US State Department Report for Serbia and Montenegro 2005
5 Amnesty International: Kosovo Protect the Right to Health and Life (July 2005)
6 UNHCR Material
(a) Background note on ethnic Albanians from Kosovo in continued need of international protection (March 2000)
(b) Kosovo minorities still need international protection says UNHCR (August 2004)
(c) Position on the continued international protection needs of individuals from Kosovo (August 2004)
(d) Possibility of internal relocation within Kosovo for individuals of mixed ethnicity (January 2005)
(e) Position on the continued international protection needs of individuals from Kosovo (March 2005)
(f) Position on the continued international protection needs of individuals from Kosovo (June 2006)
7 Kosovo Ombudsperson Institution (Fifth Annual Report)
8 European Roma Rights Commission (ERRC)
(a) Criminal complaint re: lead poisoning in Kosovo (August 2005)
(b) Report (August 2004)
(c) Report (June 2005)
(d) ERRC/ENAR/ERIA statement Roma rights in Kosovo (September 2005)
(e) ERRC written comments to UNHCR (February 2006)