SK (Roma in Kosovo – update) Serbia and Montenegro  UKIAT 00023
Date of hearing: 10 December 2004
Date Determination notified: 28 January 2005
|Secretary of State for the Home Department||RESPONDENT|
I am aware of the latest UNHCR paper on Kosovo dated 30 March 2004 and the recommendations that minority groups should continue to benefit from international protection particularly in view of the recent inter ethnic clashes. None of the parties addressed me in court on this issue, however, in view of the contents of that paper which I have partly summarised the respondent might want to consider providing the appellant with some sort of temporary leave in the UK.
(a) FD (Kosovo – Roma) Serbia and Montenegro CG  UKIAT 00214.
(b) KK (risk – Return – Suicide – Roma) Serbia and Montenegro  UKIAT 00228.
We invited the parties to address us on any fresh evidence relied upon by the Appellant which would persuade us to depart from the views of the Tribunal above.
Served on the Appellant's behalf:
(a) The UNHCR Position Paper dated August 2004 entitled: "UNHCR Position on the Continued International Protection Needs of Individuals from Kosovo" (document H of the Appellant's Bundle B).
(the UNHCR Kosovo August 2004 Paper)
(b) Appendix 1 (entitled: "Non-exhaustive list of selected security incidents involving minorities January 2003 – April 2004") to the UNHCR's paper dated August 2004 entitled: "The possibility of applying the internal flight or relocation alternative within Serbia and Montenegro to certain persons originating from Kosovo and belonging to ethnic minorities there" (document I in the Appellant's Bundle B) (the UNHCR Serbia and Montenegro August 2004 Paper). We were only referred to Appendix 1; we were not referred to the main body of the report, because (presumably) we confirmed to Mr. Fripp that he did not need to address us on any internal flight alternative outside of Kosovo.
(c) A bulletin from CIPU (Country Information and Policy Unit of the Immigration and Nationality Directorate) entitled "Serbia and Montenegro (Kosovo) 5/2004" (document B in the Appellant's Bundle B). It is clear from the date immediately below the heading on the first page and from the last page of the document that this document is in fact dated July 2004.
Served on the Respondent's behalf:
(d) The CIPU report on Serbia and Montenegro (which includes a section on Kosovo) dated October 2004.
(a) that Roma do not all live in Roma enclaves or in camps and that those who live outside do not all face persecution; the picture is somewhat variable, depending on time and place (paragraph 51);
(b) Roma who are concerned about the security situation can go to an enclave where there is a greater prospect of collective protection than outside (paragraph 51);
(c) conditions in camps are overcrowded and poor; freedom of movement and discrimination (which, for many Roma, involve routine and quite severe discrimination in assessing public services) are a long way from what is aimed for. However, they do not reach the Article 3 threshold (paragraphs 52 and 53);
(d) there is some evidence that ethnic Albanians take violent or destructive action to prevent those returning from doing so to the multi-ethnic areas where they once lived and that there has been some secondary displacement. However, there is no evidence that those who returned have been persecuted or unable to find state protection or alternate areas in which to live (paragraph 55).
Following the outbreak of inter-ethnic violence in Kosovo in mid-March 2004, the Tribunal invited submissions from both parties. Following the publication of the UNHCR position paper of 30 March 2004, the Tribunal invited further submissions explicitly addressing that paper (see paragraph 57 of the Determination in the FD case). Neither party made any submission. After considering the UNHCR paper:
(e) the Tribunal saw no reason to revise the view it had earlier reached that the claimant in that case would return to a Roma enclave or camp, neither of which would involve a breach of Article 3 (paragraphs 59 and 64);
(f) that Serbs were the primary targets of the violence in mid-March, although Roma and Ashkaelia were also attacked (paragraph 60); that the violence of mid-March 2004 represented an extreme but temporary expression of those inter-ethnic hatreds which simmer below the surface of daily life, with sporadic violent eruptions against which the UN authorities and KPS provided a sufficient degree of protection. The violence was not of such a scale that it prevented an effective, controlling, protecting response from the authorities (paragraphs 64, 65 and 66). It was of the order of a week before NATO forces were sufficiently reinforced to quell the violence though the prospects of identification and prosecution of its instigators are limited (paragraph 60). The events of mid-march 2004 are a clear demonstration of the promptitude and effectiveness of the protecting response (paragraph 65);
(g) that there was nothing of substance before the Tribunal to show that the political or inter-ethnic landscape has changed such that there was a real risk of treatment in breach of Article 3 or of persecution under the Geneva Convention for reasons of ethnicity. Rather, the Tribunal found that the mid-March incidents demonstrated that the tensions lead to sporadic and unpleasant violence which the authorities have the will and ability to suppress (paragraph 67).
"In an environment where inter-ethnic crime is not systematically investigated and rarely solved, a strong sense prevails that there is impunity and the rule of law is inefficient."
UNHCR supports the full and inclusive implementation of Security Council Resolution 1244 of June 1999, which states that "the main responsibilities of the international civil presence will include ..... assuring the safe and unimpeded return of all refugee and displaced persons to their homes in Kosovo (emphasis added). In UNHCR's view, where States forcibly return minorities to situations where they are displaced into communities outside their place of origin, they undermine the spirit of the Resolution".
The appeal is DISMISSED.
Ms. D. K. GILL
Vice President Date: 18 January 2005
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