England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND AN
EXTENSION OF TIME
APPLICATION FOR PERMISSION TO RELY ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Tuesday, 2nd October 2001

1. LORD JUSTICE LAWS: This is a case in which I refused permission to appeal on paper on 11th September 2001. On 22nd June 2001 the Immigration Appeal Tribunal dismissed the applicant's appeal from a decision of the Special Adjudicator given on 1st February 2001 when he dismissed the applicant's appeal against the decision of the Secretary of State to refuse asylum. The proposed appeal to this court is directed against the tribunal's decision.

2. The Immigration Appeal Tribunal explained the basis of the applicant's claim very shortly in paragraph 2 of their determination. The applicant is of mixed ethnic origin. He comes from Kosovo. His father is an Albanian Kosovan and his mother a Roma. He claims to have been subject, together with his family, to abuse and maltreatment at the hands of the Serbs before he left Kosovo. His real claim now, as it was before the tribunal,reflected in the tribunal's record of Mr Nicol's submission to them at paragraph 5 of the determination of the Immigration Appeal Tribunal, is:

" .... concentrated entirely on the risk the appellant would be persecuted upon his return, accepting that the appellant's claim did not rest upon incidents that had occurred prior to his departure from Kosovo in 1998. He submitted that KFOR and UNMIK are unable to provide protection against further discrimination and possible violence for the appellant, and those like him who are of mixed ethnic origin and in particular of Roma parentage."

3. The thrust of the case being put is that because he has a Roma mother he is likely to suffer ill-treatment amounting to persecution for a Convention reason if he is returned to Kosovo.
4. In paragraph 10 of the tribunal's determination they say:

"The background information to which Mr Nicol has drawn our attention does indicate that there is discrimination by the civilian population in Kosovo against Roma, much on the lines of that which unfortunately pertains in other areas of the Balkans and mid-European countries such as Hungary, Romania and Slovakia. It would not appear to be any greater in Kosovo than in those countries."

5. At paragraph 11 it is said:

"Although it is not in dispute that the appellant's mother is a Roma, and his father is of Albanian origin, we are of the view that this mixed ethnicity does not of itself provide danger of persecution against which UNMIK and KFOR cannot provide adequate protection."

6. Mr Nicol's complaint is that in these passages the tribunal simply downgrade the level of ill-treatment suffered by the Roma in Kosovo to an extent that lies beyond what the evidence justifies. He pointed me, in particular, to two documents that were before the tribunal and considered by them. One is a paper prepared by a body called the International Crisis Group (ICG), headed Violence in Kosovo; "Who is killing Whom?" That gives some details of the ill-treatment in question. More striking is an Amnesty International report which contains this passage, referring to a time after the war in Kosovo had ended:

"Few of these Roma refugees have returned home and since the withdrawal of FRY from Kosovo province the situation of those who remain worsened drastically ..... Although Amnesty International had received some reports that some members of the Roma population did take part in acts of looting and may have worked in co-operation with FRY and Serbian forces ..... it is clear that in many cases they were acting under duress.

.....

Roma interviewed by Amnesty International described being arbitrarily detained, beaten, kicked and otherwise ill-treated or evicted from their homes, claim that those responsible represent themselves as KLA members and sometimes showed identity cards supposedly issued by the KLA. Amnesty International is concerned about the various human rights abuses which are being perpetrated against the Roma on a daily basis. Amnesty International delegates in Kosovo province have heard harrowing stories of killings, torture, cruel, inhuman and degrading treatment and forced displacement perpetrated by armed ethnic Albanian groups against the Roma. Furthermore, Amnesty International is concerned about the members of the Roma community who have been abducted. Such is the level of fear and insecurity among members of this community that many Roma are unwilling to talk about their missing family members or to have their names publicly reported in case they become the target for reprisals. As a result it is impossible to arrive at a realistic estimate of the number of those abducted. It is nonetheless clear from interviews carried out by members of Amnesty International that a considerable number of Roma are concerned for the fate of family members abducted by armed men claiming to be representatives of the KLA."

7. The report travels into some examples.
8. Mr Nicol said that ill-treatment on this scale is qualitatively something quite different from the sort of events that one knows occur in other eastern European states with a Roma population such as the Czech Republic, Hungary and Poland. The tribunal, being an expert tribunal, would have knowledge of the situation in those other states, at the very least in broad terms. They appear to have reached the specific conclusion that the level of ill-treatment of Roma in Kosovo is no worse than elsewhere in central Europe. That is the conclusion under assault.
9. It seems to me that Mr Nicol has just established enough to entitle him to argue the matter on appeal. It may be, as I mentioned to him at the end of his argument, that he will face a considerable uphill struggle given the tribunal's specific findings relating to the position of the appellant himself and his family (see paragraphs 12 and 13 of the Immigration Appeal Tribunal's determination) and there are also passages of the special adjudicator's decision from which, so far as I can see, the tribunal did not depart which would support the view that whatever the general position this particular applicant is not objectively at risk of persecution for a Convention reason.
10. The background in a case like this is plainly very important and if there is a proper argument to the effect that the tribunal have failed to deal with the background evidence in a way they were required to do, then it is right that the matter should go forward to an appeal.
11. For those reasons and with some misgivings I give permission.
Order: Application granted