England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINSTRATIVE COURT

		Royal Courts of Justice Strand London WC2 Friday 24th August 2001

1. LORD JUSTICE SEDLEY: Miss Finch comes before the Court seeking permission to appeal against the decision of Jackson J given on 7th March 2001. His decision was that this was not an appropriate case in which to grant permission to apply for judicial review. He came to that conclusion after hearing full argument on both sides, as often and usefully happens in these cases, between counsel instructed respectively for the claimant and the Home Secretary.
2. Very broadly, two problems arise from the Special Adjudicator's decision in this case which, since it was a certified case and since the certificate was upheld, is the end of the road unless the decision can be upset.
3. The materials before the Special Adjudicator included documents which were of impeccable provenance and suggested that an Albanian Kosovan, such as the applicant, might have good reason to fear persecution on grounds of race or nationality in the northern part of Mitrovice which is the part of Kosovo that the applicant came from.
4. The Special Adjudicator gave his conclusions however in this short form at paragraph 12:

"I have considered whether, if I accept the appellant's account as true, it discloses the basis for a well-founded fear of persecution if returned to Kosovo now, having particular regard to Ravichandran. In 1999, NATO intervened in Kosovo and a peacekeeping force remains there. With very few exceptions, all the evidence in the public domain suggests that, if any ethnic group is at risk in Kosovo today, it is the Serbs and not those of Albanian ethnicity.

13. In response to this, the appellant states that he is from the northern part of Mitrovice, which is not pacified and is occupied mainly, if not exclusively, by Serbs. There is, in my view, no reason why the appellant must return to the northern part of Mitrovice. Any other part of Kosovo is available to him.... There is no basis on which I could conclude that it would be unduly harsh within the meaning of Robinson for the appellant to return to another part of Kosovo."

5. I accept that there is a reasonable prospect of success on the first limb of the proposed appeal in this respect: whether, given the extensive and conflicting evidential material which went to the question whether the applicant had a well founded fear, paragraph 12 amounts on any view to sufficient reasons for the adverse conclusion which it expresses. Brevity is one thing: capacity is another.
6. The alternative ground upon which the Adjudicator found against the applicant in paragraph 13, namely the internal protection alternative, becomes relevant only if the challenge to the alleged poverty of reasoning in paragraph 12 fails. The internal protection alternative is an extremely difficult area of law which this Court has had to consider more than once recently, but on which both within the legal profession and in the international community more thinking is still being done.
7. If I were to give permission now on this ground, it might unnecessarily inflate an appeal which would otherwise go off on a short point. If, however, that appeal fails, then it seems to me that consideration ought to be renewed as to whether there is a viable appeal on the internal protection alternative.
8. For that reason I have suggested, and Miss Finch has accepted, that the application for permission to appeal in relation to the internal protection alternative should stand over to the court hearing the appeal for which I am giving permission, so that it may decide whether it is appropriate for one reason or another to grant permission in that regard as well.
9. LORD JUSTICE SEDLEY: Miss Finch I will not say anything in my judgment about the possibility of putting this case with others raising related points. That will be looked at by Master Venne, I suspect, and you will be consulted about it.
10. I have not also said anything specifically about the choice of forum. Ordinarily where there has been a refusal of permission the matter will go back for a full hearing before the Administrative Court. In practice you have had a full hearing before the Administrative Court and it seems to me better in these circumstances that I exercise my power to let the issue now come before this Court.
11. MISS FINCH: I am obliged.
12. MR JUSTICE SEDLEY: Is there anything else?
13. MISS FINCH: As I have said previously, we understand the funding certificate has not yet been filed.
14. MR JUSTICE SEDLEY: Would you undertake to file it and upon it being filed you shall have a detailed assessment.
15. MISS FINCH: I am obliged.