COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
(Mr M.W. RAPINET (ACTING VICE PRESIDENT))
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JUDGE
LORD JUSTICE NEUBERGER
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
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Daniel Beard (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 3rd March 2005 and adjourned for further hearing and dealt with by written submissions in May 2005
Crown Copyright ©
Lord Justice Judge:
This is the judgment of the Court.
"I cannot return to Kosovo and pretend that I am anything other of mixed ethnic origin. As I have already said, as soon as I register with the authorities, as I will be required to do, and in a country as small as Kosovo, it would be impossible for me to hide or lie about my origin and not be found out."
"I do find the appellant could relocate in Kosovo."
Accordingly the appellant had not established the claim under the 1951 Refugee Convention. His appeal on asylum grounds was dismissed. The arguments on human rights grounds were treated as abandoned.
"In my experience in Albanian culture a mixed marriage is always considered to be exactly that and any children born from such a union are regarded as having mixed blood …"
"The evidence before the Adjudicator is that the appellant's father was rejected by his family because he married a Roma and that the appellant and his family mixed more with Roma in their street than with Albanians, all the more reason therefore why the Adjudicator was correct in finding that the appellant cannot return to Mitrovice."
Nevertheless the IAT was impressed with and adopted the submission on behalf of the Secretary of State that the Adjudicator was right to have followed B and itself concluded that if the appellant were returned to a different part of Kosovo he would not be exposed to danger. He would be perceived as someone who spoke Albanian and who would be able truthfully to maintain that his father was Albanian. There was no reason why his Roma origins should be suspected, or indeed why he should mix with members of the Roma community on his return.
"nothing to indicate that this appellant was a Roma were he to return to … any other part of Kosovo other than Mitrovice. There is no-one who would be aware of the fact that he is the product of a mixed-marriage. The appellant was not precluded from being a citizen of Yugoslavia, nor a citizen of Yugoslavia of Albanian ethnicity, although the child of a mixed-marriage. On the evidence there would be little or no danger to him on relocation. He would be perceived as a person who speaks Albanian and would be able to maintain truthfully that his father was of Albanian ethnicity. There is no reason whatsoever why anyone would suspect him of being a Roma or why he would even seek the company of Roma … there is no reason whatsoever why the appellant should consort with members of the Roma community were he to return … Not to announce his ethnicity, or rather to emphasise his Albanian ethnicity, does not in any way hinder him in pursuing a normal existence … We do not consider it would be unduly harsh for the appellant to return to Kosovo."
"(a) The appellant's father is of Albanian ethnicity. The appellant's principal, possibly sole language is Albanian.
(b) The appellant is now 17 years of age and will be 18 if he is returned at the end of his limited leave to remain next year and, according to the evidence before us, has been studying English.
(c) Nothing in either his appearance or his language or his accent would indicate his mixed ethnicity."
"(1) the right to refugee status under the Refugee Convention;
(2) the right to remain by reason of rights under the Human Rights Convention; and
(3) consideration to the grant of leave to remain for humanitarian reasons."
"Consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home (in context that means his home in his country of origin, rather than the place at which he has been living while his application was considered and decided). If it would be "unduly harsh" for the individual applicant to be relocated in a different part of his own country of origin, it would then normally follow that refugee status should be granted."
"It would undermine the object of the Convention if a signatory country required them [refugees] to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection … The notion that is reasonable for a person to take action that would avoid persecutory harm invariably leads a tribunal of fact into a failure to consider whether there is a real chance of persecution if the person is returned to the country of nationality … In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly."
"… The Refuge definition is to be approached not from the perspective of what the refugee claimant can do to avoid being persecuted, but from the perspective of the fundamental human right in jeopardy and the resulting harm. If the right proposed to be exercised by the refugee claimant in the country of origin is at the core of the relevant entitlement and serious harm is threatened, it would be contrary to … the Refugee Convention to require the refugee claimant to forfeit or forgo that right and to be denied refugee status on the basis that he or she could engage in self-denial or discretion on return to the country of origin or, to borrow the words of Sachs J in National Council for Gay and Lesbian Equality … to exist in state of self-oppression."
"… A person cannot be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would engage in, at least if that modification was sufficiently significant in itself to place him in a situation of persecution. If the IAT in our case refused Mr Z asylum on the basis that he was required to avoid persecution they did not respect the jurisprudence of Ahmed. … Rather the IAT held … that on return to Zimbabwe Mr Z would continue in the chosen course of conduct that would not in the future, any more than it had in the past, be sufficiently likely to attract the adverse attention of the authorities."
Mr Z's appeal failed, and the argument that a core human right was denied also failed. We doubt whether cases of this kind are strengthened by an appeal to a "core" or "fundamental" human right at any rate if it is approached as if it were a kind of distinct and separate, and ultimately conclusive point. As it seems to us, if the consequence of relocation would be that an applicant would be deprived of a human right, that would impact directly on its reasonableness, or otherwise. However Buxton LJ's observations provide a measure of support for Mr Nicol's submission that it would be expecting too much of the appellant for him to be obliged to lie and maintain the necessary lie about his origins.
"Not to announce his ethnicity, or rather to emphasise his Albanian ethnicity, does not in any way hinder him in pursuing a normal existence. The objective evidence indicates quite clearly that in Kosovo in particular it is not uncommon for individuals to change their ethnic self-identification depending on the pressures of local circumstances."
"Pressure of local circumstances", in this context, Mr Nicol says, is a coy term for "fear of racial persecution": for our part, and sufficient for our purposes, it suggests fear of ill-treatment by reason of ethnicity. The fact that such precautions are forced on others in Kosovo does not extinguish the impact of these pressures on the appellant. Moreover if the language intended to convey that like others before him, the appellant was obliged to reject his own ethnicity, it would conflict with Buxton LJ's analysis in Z of the principle derived from Ahmed. With a young man of this age, given this history, we do not believe it right to make assumptions one way or another.