SI (mixed Serb/Roma parentage) Kosovo CG  UKAIT 00011
Date of hearing: 9 October 2008
Date Determination notified: 16 March 2009
|Secretary of State for the Home Department||RESPONDENT|
1. 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.
2. The current CG cases relating to the protection of minorities (SK (Roma in Kosovo update) Serbia and Montenegro  UKAIT 23, FD (Kosovo Roma) Serbia and Montenegro CG  UKAIT 00214 and ES (Ashkaelians, mixed-Ashkaelian ethnicity Serbia and Montenegro (Kosovo)  UKAIT 00071 are confirmed and the judgement of the Court of Appeal in Hysi  EWCA Civ 711 is followed.
3. 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.
"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."
"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."
Error of law in the determination of the Immigration Judge
"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  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  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 properly and fully take into account in reaching his conclusion on this case.
7. Accordingly I have adjourned the hearing of this appeal for the issue of risk because of the appellant's mixed ethnicity to be re-determined, having regard to KX and also to any updated background material that is submitted. There is no issue taken with the Immigration Judge's findings of fact in this case and those will stand; the only issue is risk on return."
Report of Mr. Alex Standish
"Under the current circumstances a large number of Kosovo inhabitants are experiencing hardship. This being said the people who tend to suffer principally are the most vulnerable populations usually but not limited to, the non-Albanian communities."
"While RAE communities overall can be said to have experienced improvements, as compared to the situation in late 1999, their security remains volatile and incidents of acute violence, including arson, grenade attacks, assaults and intimidation continue to be perpetrated against them. The only apparent motive in many cases appears to be ethnicity."
"In my view it also cannot be assumed that an individual in the appellant's position would be able to seek safety in ethnic enclaves, particularly if he or she were to be regarded as being of specific risk owing to their family background. In my opinion it is entirely possible that persons who would be seen as collaborators with the Serbian regime in 1999 would be excluded by other Serbs and Roma owing to the unacceptable degree of additional risk to their community, especially in the current tense situation following the unilateral declaration of independency by the ethnic Albanian government of Kosovo in February 2008."
"In general there is sufficiency of protection for Kosovans of mixed ethnicity and those in ethnically mixed marriages. UNMIK/KPS [United Nations Mission in Kosovo/Kosovo Police Service] 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 applicant 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."
"There is in general freedom of movement for ethnic Albanians in Kosovo (outside of the Serb enclaves) and case owners should consider that internal relocation is normally possible, for applicants that can pass as an ethnic Albanian, to another part of Kosovo, where an applicant'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. For example, relocation from smaller rural areas to much larger urban communities such as Pristina. However, some applicants 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."
Relevant Legal Framework
"5(1) In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).
5(2) An act of persecution may, for example, take the form of:
(a) an act of physical or mental violence, including an act of sexual violence;"
"339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if he is returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and
(iv) he is not excluded from a grant of humanitarian protection."
"Serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
"(1) In deciding whether a person is a refugee or a person eligible for humanitarian protection, protection from persecution or serious harm can be provided by:
(a) the State; or
(b) any party or organisation, including any international organisation, controlling the State or a substantial part of the territory of the State.
(2) Protection shall be regarded as generally provided when the actors mentioned in paragraph (1)(a) and (b) take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the person mentioned in paragraph (1) has access to such protection."
Relevant Tribunal determinations
"64. The situation prevailing before the recent outbreaks of interethnic violence was not one of substantial peace and harmony. Interethnic hatred simmered below the surface of daily life, with sporadic violent eruptions against which the UN authorities and KPS provided a sufficient degree of protection. The return of ethnic minorities led to actions designed to intimidate and deter such returns and to prevent return to a place where the returnees originally lived.
65. The events of mid-March represent an extreme but temporary expression of those hatreds and a clear demonstration of promptitude and effectiveness of the protecting response. They were not anticipated but they reflect what was there below the surface which already, over the years, had been manifesting itself in isolated and smaller outbreaks of violence, secondary displacement, reduction in ethnic mixing, and constant discrimination, counteracted by the UN and NATO forces. The response of the UN and NATO forces has promptly brought the violence totally under control.
66. The numbers killed and injured, the properties destroyed, whether domestic institutional or ecclesiastical, were not of a scale which prevented an effective, controlling, protecting response from the authorities.
67. We do not see this leading to a change in our conclusions. Events of that sort, whilst the timing and organised scale may have caught the authorities by surprise, do not warrant a major re-evaluation. Although violence of itself may reflect underlying tensions but in its effect exacerbate them, altering them in degree and nature, changing people's attitudes, there is nothing of substance before us to show that the political or interethnic landscape has changed such that there is now a real risk of treatment which would breach Article 3 or of persecution under the Geneva Convention for reasons of ethnicity. Rather they demonstrate that the tensions lead to sporadic and unpleasant violence which the authorities have the will and ability to suppress."
"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."
"(2) Nevertheless, the majority Albanian population continues to suspect all Roma 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  UKHL 37 standard
(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...
(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.
(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."
The issue of whether or not there is a real risk of persecution for minorities in Kosovo. Consideration of background evidence and the report Mr. Alex Standish.
The issue of sufficiency of protection
"In general there is sufficiency of protection for Kosovans of mixed ethnicity and those in ethnically mixed marriages. UNMIK/KPS 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 applicant 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."
There is nothing to show that that assertion is incorrect.
Application of our conclusions to the facts relating to this appellant.
Senior Immigration Judge McGeachy
|1. UNHCR's Position on the Continued International Protection Needs of Individuals from Kosovo||June 2006|
|2. Kosovo Serbs launch new Assembly BBC Website||June 2006|
|3. UNHCR website Last family leave camp for displaced in Kosovo||November 2007|
|4. UNHCR Website Last Family Leaves Camp for Displaced in Kosovo.||November 2007|
|5. Kosovo vow as independence looms. BBC website.||February 2008|
|6. Inter-Press Service News Agency Report Kosovo: How a "Success Story" Became Such a Mess||February 2008|
|7. US State Department Report||March 2008|
|8. International Crisis Group Kosovo's First Month||March 2008|
|9. Human Rights Watch Kosovo Criminal Justice Court Card||March 2008|
|10. European Roma Rights Centre Kosovo Roma Fleeing in Fear.||April 2008|
|11. European Roma Rights Centre RAE Returnees in Kosovo Face Desperate Situation||April 2008|
|12. US State Department Terrorism Report||April 2008|
|13. OSCE Four Years Later: Follow-up of March 2004 Riot Cases Before the Kosovo Criminal Justice System||July 2008|
|14. Report of Secretary General on the UN Interim Administration Mission Kosovo||July 2008|
|15. Human Rights Watch Kosovo: Abuja Press at Tachi on Human Rights||July 2008|
|16. Expert Report from Mr Alex Standish||July 2008|
|17. Voice of America News Serbia Requests ICJ Opinion on Legality of Kosovo Independence||August 2008|
|18. SCE Human Rights, Ethnic Relations Democracy inKosovo||September 2008|
|19. South East European Times UNMIK to remain in Serb dominated Areas of Kosovo||September 2008|
|20. International Crisis Group Kosovo's Fragile Transition||September 2008|
|21. OSCE Municipality Profile for Peje||No date|
|22. OSCE Municipality Profiles for Leposavic, Mitrovice, Strpce, Zubim, Potok and Zvecan. (Municipalities with the most significant Serb populations||No date|