STARRED FD (Protection – UNMIK – Arif – IFA – Art1D) Kosovo CG  UKIAT 00001
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 08 August 2000
Date Determination notified: 30 August 2000
Mr M. W. Rapinet
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
Before us he was represented by Mr C. Jacobs,instructed by Gersten and Nixon, and the Respondent was represented by Mr R. Tarn and Mr S. Grodzinski, instructed by the Treasury Solicitor.
'5. Decides on the deployment in. Kosovo, under United Nations auspices, of international civil and security presences, with appropriate equipment and personnel as required, and welcomes the agreement of the Federal republic of Yugoslavia to such presences;
'10. Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development ot' provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.'
'Since the withdrawal of Yugoslav forces and the entry of the international military presence, (KFOR) and the UN interim administration mission (UNMIK) into Kosovo in mid-June 1999, the situation for ethnic Albanians inside Kosovo has dramatically improved.The systematic persecution described in earlier UNHCR and OSCE documents no longer prevails. As a result many refugees have availed of the opportunity to return home. Close to 825,000 refugees have returned in total...'.
Burden of Proof
'At the outset of the hearing I drew counsel's attention to a passage in Macdonald's Immigration law and practice, (4th Edition), which appeared to me of some relevance to this appeal. Paragraph 12.58 at page 397, so far as material, reads:
"If the circumstances in the country of nationality - have so changed that refugees can no longer refuse to avail themselves of the protection of that country. Convention refugee status will cease [footnoted to that is article l(c)(5) of the Convention]... A cessation of circumstances refers to fundamental changes rather than merely transitory ones. A refugee's status should not be subject to frequent review since this would jeopardise a sense of security which the Convention was designed to provide. Proof that the circumstances of persecution have ceased to exist would fall upon the receiving state. Cessation of refugee status will not automatically mean repatriation, since many refugees will have acquired settlement rights in their country of refuge- Problems can occur when the authority takes a long time to determine a claim and circumstances change in the meantime as the relevant date for the assessment of the claim is the date of the decision." The sentence I would particularly emphasise there is "Proof that the circumstances of the persecution have ceased to exist would fail upon the receiving state." It is true that because of the notoriously long delays which attend our system of asylum hearings the appellant here was never granted refugee status, even though, until the change of government in Azad Kashmir in 1996 it is now assumed on all sides that he was strictly entitled to it It nevertheless seems to me that by analogy, on the particular facts of this case, there is now an evidential burden on the Secretary of State to establish that this appellant could safely be returned home.'
(ii) Kosovo, however, is not capable of being the country of a person's nationality within the meaning of that Article.
(iii) The 'reversed burden' in Arif applies only where it is accepted that the claimant was in the past a refugee, and is capable of being discharged by any evidence which could support a finding of a relevant change of circumstances.
(iv) No questions of 'internal flight', 'reasonableness', or 'undue hardship' arise when a person has no well-founded fear of persecution in his own home area.
(v). Article ID of the Convention does not apply to persons receiving assistance from UNMIK and KFOR.
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