Secretary of State for the Home Department v S & K Croatia CG  UKIAT 05613
HX/65298/2000; HX/16389/2001; CC/12867/2001; HX43916/2001; HX49818/2001
Date of hearing: 16 & 17 October 2002
Date Determination notified: 3 December 2002
|SECRETARY OF STATE FOR THE HOME
|S & K||RESPONDENT|
"an authoritative decision as to what the current situation is to enable consistent results to be achieved because the tribunal has been able to consider all relevant evidence".
That determination was dated 1 May 2001. The 'current situation' in question was that in Croatia as it affected ethnic Serbs who claimed that to return them to Croatia would be contrary to the United Kingdom's obligations under the Refugee Convention. The tribunal had had before it all relevant material and had in addition had the advantage of listening to oral evidence from two acknowledged experts, Dr. Gow and Judge Karphammer. It concluded that, despite the genuiness of the expressed fears and the fact that there would be considerable hardship on return, the situation did not support the contention that there was a real risk of persecution. Accordingly, the tribunal decided that unless the situation worsened or there were special circumstances affecting an individual claimant, ethnic Serbs would not be able to establish that they were entitled to asylum.
"29. But if the conception of a factual precedent has utility in the context of the I.A.T.'s duty, there must be safeguards. A principal safeguard will lie in the application of the duty to give reasons with particular rigour. We do not mean to say that the I.A.T. will have to deal literally with every point canvassed in evidence or argument; that would be artificial and disproportionate. But when it determines to produce an authoritative ruling upon the state of affairs in any given territory it must in our view take special care to see that its decision is effectively comprehensive. It should address all the issues in the case capable of having a real as opposed to fanciful bearing on the result, and explain what it makes of the substantial evidence going on the result, and explain what it makes of the substantial evidence going to each such issue. In this field opinion evidence will often or usually be very important, since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists. We recognise of course that the I.A.T. will often be faced with testimony which is trivial or repetitive. Plainly it is not only unnecessary but positively undesirable that it should plough through material of that kind on the face of its determination.
30. It may be thought that this approach is not far distant from the way in which the I.A.T. generally discharges its duty to give reasons, and not only in cases where it resolves to produce an authoritative determination as to the position in a particular country. Indeed we do not mean to suggest that in this latter class of case the I.A.T.'s duty is of an altogether different quality. The experienced members of the I.A.T., not least if we may say so its President and Deputy President, will we are sure have no difficulty in gauging the quality of the reasons given so as to ensure that these authoritative determinations will be, and will be seen to be, effectively comprehensive.
31. In the present case the SR reports constituted substantial recent opinion evidence from an important source. While, as Mr. Blake acknowledged, they may not have uncovered new or otherwise unknown primary facts, they presented a relative gloomy picture on a series of important issues – so-called secret lists, arrests, detentions, prosecutions, the conduct of the police and judiciary, and to some extent discrimination in economic treatment and the distribution of property rights – which is in our judgment significantly at variance with the much more upbeat impression given by the OSCE. Having regard to all the points made by Mr. Wilken the difference is not perhaps as stark as Mr. Blake would have us accept, particularly in relation to such matters as the numbers still facing outstanding prosecutions. The SR reports, however, convey the suggestion that whatever the good intentions at the level of the State political leadership, there remain problems, even growing problems, at the local level: see for example paragraphs 41, 46 and 53 of the first report. In the circumstances we entertain no doubt but that, if the I.A.T.'s duty to give reasons in a determination of this kind is of the nature and quality we have sought to describe, its failure to explain what it made of the SR reports means that the duty has not been fulfilled. The position is the more stark given the I.A.T.'s own observations at paragraph 25 of the S determination, "[s]ince the situation is somewhat fluid and improvements are undoubtedly occurring, it is necessary to look particularly at the most recent reports".
32. Accordingly we allow these appeals, and remit all these cases to the I.A.T. to be re-determined. There will be a question what form the re-determination should take. That will be a matter for the I.A.T. It may be that a full re-hearing will not be necessary. We have heard no argument as to the scope of the I.A.T.' s procedural powers, and we make no ruling or finding on the question".
1. NT (HX/16389/2001). This is an appeal by the claimant represented by Mr. John Livingston of counsel instructed by J Andrews, solicitor.
2. MM(CC/12867/2001). This is an appeal by the Secretary of State. In it and in all the other appeals the representation is as in SK.
3. NK (HX/43916/2001). This is an appeal by the Secretary of State .
4.ZM (HX/49818/2001). This is an appeal by the claimant.
"207. The Commission has stated … that the legislation applied in the present cases discriminated against the applicants on the grounds of their colour or race. It has also confirmed the view, which it expressed at the admissibility stage, that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment …
The Commission recalls in this connection that, as generally recognised, a special importance should be attached to discrimination based on race; that publicity to single out a group of persons for different treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question.
208. The Commission considers that the racial discrimination, to which the applicants have been publicly subjected by the application of the … immigration legislation, constitutes an interference with their human dignity which, in the special circumstances described above [viz: that the provisions deliberately treated Asians because of their race less favourably than whites who might have been forced to leave Uganda following Idi Amin's actions] amounted to 'degrading treatment' in the sense of Article 3 …"
"Regardless of recent improvements in this situation, the hardships to which the enclaved Greek Cypriots were subjected during the period under consideration still affected their daily lives and attained a level of severity which constituted an affront to their human dignity".
In Paragraph 307, the Court notes a UN report that the Greek Cypriots in question "were the object of very severe restrictions which curtailed the exercise of basic freedoms and had the effect of ensuring that, inexorably, with the passage of time, the community would cease to exist".
It concluded (Paragraph 309):-
"The conditions under which that population is condemned to live are debasing and violate the very notion of respect for the human dignity of its members".
"(3) In considering –
(a) any ground mentioned in s.69, or
(b) any question relating to the appellants' rights under Article 3 of the Human Rights Convention
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
(4) In considering any other ground, the appellate authority may take into account only evidence –
(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
(b) which relates to relevant facts at that date".
Those provisions may seem to require that a different approach is taken to Article 3 from the other Articles. This could lead to absurd results. It may be, to give perhaps a somewhat extreme example, that the appellate authority is persuaded that at the time of the Secretary of State's decision there would have been a breach of Article 3. This would mean almost inevitably that there was then a breach of Article 8. At the date of the hearing there had been a fundamental change of circumstances in the country of nationality and so there was no breach of Article 3 or of Article 8. Would the appellate authority be excluded from considering the change of circumstances and thus have to find a breach of Article 8? The absurdity is obvious, and it can work in the opposite direction. We have had put before us a decision of Ouseley J R(Nyakonya) v I.A.T. EWHC 1437 (QB) in which he gave a very wide interpretation of 'evidence' within s.77(4)(b). This is helpful, but still may necessitate in an individual case an examination which may be difficult and involve an element of logic chopping. It also does not easily deal with cases where it is said that family life has been established in the United Kingdom (perhaps because of delays following the decision under appeal) and so Article 8 would be breached by a return.
"What the case [Bensaid] does establish … is that Article 8 includes protection of the right to identity and personal development, which includes the development of relationships with other human beings and the outside world".
Ahmadi concerned the return to Germany of an Afghan family and in particular the lawfulness of the certification by the Secretary of State that their claim under the Human Rights Act was manifestly unfounded. Scott Baker, J quashed the decision partly because of the evidence of the wife's mental condition and the anticipated effect on it of removal to Germany for their asylum and human rights claims to be considered here. It does not add anything to the authorities to which we have already referred. We entirely accept that the conditions to be faced on return can engage Article 8. The point in Ahmadi was that the situation was not as the Secretary of State had asserted it to be, but was far less satisfactory and so could impact adversely on the family's and in particular the wife's mental health and well being.
1. Discriminatory loss of homes and livelihood.
2. Discriminatory denial of social and economic rights in the areas to which return is envisaged. No special efforts are being made to redress the wrongs suffered and the help return to society.
3. Discriminatory denial of judicial assistance in reclaiming homes occupied by Croats.
4. Loss of stability and security because of the prospect of a marginalised and ostracise existence in largely ethnically cleansed country. Only a small fraction of Serbs who used to live in Croatia now remain and the majority are the elderly who have returned to die in their homeland.
"President Stipe Mesic's government often failed to confront entrenched ethnic Croat nationalists obstructing reform, particularly on issues of impunity for war-time abuses and the return of Serb refugees".
And later in the same report, it is said:-
"Obstacles to the return of Croatian Serb refugees remained a significant human rights concern. Although by August 2001 over 100,000 Croatian Serbs had returned according to the UN High Commission for Refugees, most were elderly. According to international organisations, significant numbers of these refugees may have again departed for FRY or Bosnia-Herzegovina after only a short stay in Croatia.
Human rights violations contributed to the reluctance of refugees to return and to their renewed flight. While violent attacks on Croatian Serbs continued to decrease in frequency, isolated serious incidents contributed to apprehension about return. Croatian authorities frequently condemned ethnically motivated attacks and opened investigations, but arrests or judicial proceedings did not always follow".
So far as the last sentence is concerned, it is always dangerous to read too much into particular incidents since arrests and judicial proceedings require evidence and the absence of arrests may not mean that the investigations were not carried out properly. Amnesty International in its report of September 2002 noted:-
"Croatia continued to suffer the legacy of the 1991-1995 armed conflict, particularly impunity for war crimes and other violations of human rights. Significant progress was made in co-operation with ICTFY. The domestic criminal system improved its record in investigating and prosecuting war crimes committed by both Croats and Croatian Serbs, although not all proceedings were conducted thoroughly and impartially. Return of the country's pre-war Serb population continued to be marred by discriminatory laws and political obstruction. Allegations that law enforcement officials ill-treated detainees were not investigated promptly and thoroughly".
"It appears that the majority of the Croatian Serb refugees in FRY wish to remain there for various reasons including difficulties to repossess private property, to receive adequate remedy for terminated occupancy rights and to validate documents regarding pension rights. Still, most surveys indicate that about 30% of Croatian Serb refugees in FRY wish to return or would consider returning if conditions for their return were more favourable".
After setting out the need to ensure that the necessary action was taken to improve the situation, he noted:-
"Croatia's ambitious objective to become part of the Euro-Atlantic community, which has been acknowledged through the signing of an EU Stabilisation and Association Agreement (SAA) in October 2001 and the announcement of a Membership Action Plan (MAP) with NATO in May 2002 has underlined the necessity to urgently address several problems within the Missions mandate.
As a consequence, the quality of the Government's dialogue with the Mission and its international partners has improved in recent months, but there is still a need to involve the international community earlier in the decision-making process in order to ensure the quality of legislation and other decisions. The Mission is an important instrument to help Croatia in dealing with the many challenges it faces".
"In December 2001, after consultations with representatives of the international community, the Government stated that a proposal for a comprehensive solution to this issue would be prepared, but such a proposal has not yet materialised. …. Public comments by President Mesic in February 2002, acknowledging that circumstances during the conflict provided reasonable grounds for Serbs to depart in fear for their physical safety, suggest that the climate for addressing this issue is improving".
And in relation to reconstruction, it noted that in late 2001 the Government, supported by UNHCR, 'for the first time encouraged and promoted the conditions for filing reconstruction applications to Serb refugees in the place of asylum".
"Although no particular progress has been achieved in the … of repossession of property, it seems that … has to admit that the political climate has significantly changed, after all. Do you agree?
"Yes, I agree, the tension has considerably decreased, and it is easier to establish dialogue, even with the people from HDZ. There is less nationalism and more realism. Politically, the situation is gradually changing and people are more focussed on the future, than on the past".
In December, he said 'truly commendable progress has been made in the last year and a half' in relation to co-oporation with OSCE. But he was saddened by the failure to pass a new law on the Rights and protection of Minorities and to enforce judgments properly. But he was encouraged by public discussions on occupancy rights.
"UNHCR continues to support directly the return Programme of the Government of Croatia, accepting and assisting with the processing of return applications. The total number of applications to the Office for Displaced Persons and Refugees (ODPR) procedure from the start of the Return Programme in June 1998 until mid-May 2002 stands at 6,908 while 3,921 persons have returned thus far. Those numbers do not include returns occurring spontaneously outside of the Return Procedures. Currently, there are 1,173 cases where the procedure has not been completed or is pending clearance, and of these 451 cases have been deferred for lack of records …"
While these 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 B.H. (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.
"The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. It does not disclose the exceptional circumstances of the D case [D v United Kingdom (1997) 24 EHRR 423] where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts".
"there are considerable problems on the provision of and access to justice especially for the minorities … and in relation to the return of refugees".
Discriminatory practices in relation to housing and war crimes are said to have put returning Serbs at risk and to raise the possibility of future inter-ethnic conflict 'and to create the most significant major barrier to regional stability and the successful integration of Croatia into Western structures'. It is said that Croatia has 'the worst record on integration of refugees and displaced persons. There is a clear ethnic bias against non-Croats'. There follows reference to the problems faced by Serbs to which we have already referred and to the failure by the Office of Displaced Persons (ODPR) set up by the Government of Croatia to act in an even-handed manner and its persistence in discriminating against non-Croats. All this we recognise, but it is now somewhat out of date. The government has clearly recognised the importance for Croatia of economic ties with the EU. There has been greater co-operation with ICTY and the concern about that which was expected by some to result in the fall of the present government in July 2002 have not provoked that result. We find in the OSCE fortnightly report of 25 September to 8 October 2002 reference to President Mesic's testimony at the Milosevic trial. Croats have been handed over to face trial on charges of crimes against Serbs and the weekly report, having noted the considerable public interests in the President's testimony which was carried live and watched by as much as 40% of the population according to one opinion poll, concluded:-
"More than half of the viewers believe the President's appearance before the ICTY would improve the international standing of Croatia, arguing that it showed that Croatia believes in the rule of law and takes its international commitments seriously".
The OSCE background report of 10 October 2002, while recording the support for the decision to challenge the indictment against General Bobetko, notes that the most recent polls indicate a shift of public opinion back to a support for co-operation and compliance with Croatia's international commitments. The opposition to General Bobetko's surrender to ICTY is based to a greater extent on his age (he is now 83) and cannot in our view be regarded as an indication of failure to co-operate generally with ICTY. It further notes that public acknowledgements in the media by Croatian officials that both sides committed war crimes have notably become more common. All this gives some encouragement since it shows that there is recognition of the importance to Croatia of integration into Western Europe and this is more likely to result in greater acceptance of the need to show that discrimination is being tackled.
"As things stand now … the high hopes of radical political change and a possible rejection of the HDZ years engendered by the election of a new government at the beginning of 2000 may prove to have been little more than illusions about the supposed seizure of the HDZ and all that it represents".
In his report of August 2002, he says that the 'powerful and quasi-criminal wing' of the HDZ led by Ivic Pesalic has not been fully curbed by the new leader. But there has been a significant change and there are signs that the HDZ, although no doubt still nationalist and right wing, is not run by those espousing the extremist policies of the Tudjman era. The majority of Croatians will not want to return to the isolation and economic damage resulting from it which the Tudjman policies produced and which similar policies would be likely to produce. In addition, in some areas the HDZ has entered into arrangements with other parties, including the SDS (the government party), to share power. While the dangers of a resurgence of nationalism are apparent – the history of this part of Europe cannot instil confidence that in the future there will be no regression – we do not regard the increased support for the HDZ as it now is with the same pessimism as is displayed by Dr. Milivojevic.
"Regarding the status and conditions of ethnic Serbs in Croatia, generally since the election in February 2000 of a new President with a new approach, Mr. Stipe Mesic, there has been a marked change of emphasis in Croatia at the government level in Zagreb. However, it clearly remains the case that despite the top level change, the position for ethnic Serbs in certain regions especially individuals who have served in the OS RSK, or similar, cannot be guaranteed to be beneficial and free from acts that could be deemed persecution. It is equally apparent that despite the best intentions of President Mesic and of the government of Prime Minister Ivica Racan, at the national level, the power of the nationalist HDZ remains entrenched in many areas and, indeed, was reinforced and enhanced by results in the May 2001 local elections, where the HDZ made gains. This may confirm the impression that in relevant areas, the situation has deteriorated at a time when generally there has been improvement in Croatia".
These views are entitled to be accorded considerable respect, but they seem to us to be over pessimistic and to ignore the signs to which we have referred which point in a more optimistic direction. Contrary to the views of at least one tribunal, we do not regard the increased support for the HDZ in May 2001 (which incidentally, still represented a fall in support as against the Tudjman years ) as showing a worsening of the situation since S was decided.
"a positive trend in … decisions by County Prosecutors and judges to reject war crimes and genocide charges against groups of Serbs due to the lack of any evidence of individual crimes".
Sir Andrew Collins