England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Friday 21 December 2001

Friday 21 December 2001

1. LORD JUSTICE SIMON BROWN: The applicant is an 18-year old ethnic Albanian from Kosovo, a Catholic, as indeed were the majority of those who lived in his village of Zym. He left Kosovo in late 1999, a few days after the NATO bombing commenced on 25 March and at a time when the Serb troops were forcing Kosovans out of their homes. He went to Macedonia and eventually in May 2000 was smuggled in the back of a lorry into this country, having paid an agent $2,500 for the service.
2. His asylum application was refused by the Secretary of State. His appeal to the special adjudicator, Ms Braybrook, was dismissed on 18 December 2000. His application for permission to appeal to the IAT was refused on 21 February 2001. His application for permission to apply for judicial review was refused initially on the documents by Stanley Burnton J and then at a hearing on notice by Sir Richard Tucker. His application for permission to appeal to this court was refused by me on its initial consideration on the documents on 26 November. It is now renewed in open court and I have indicated in the course of sustained argument from Mr Manjit Gill QC that I am, with some misgivings, going to grant it.
3. Let me explain the basis upon which I do so. The essential ground of the claim for refugee status is that the applicant, as a Catholic, is perceived as having collaborated with the Serbs in the early months of 1999. His case before the adjudicator was couched in fairly extreme terms, if one looks at his statement at page 48 of the bundle. Let me now read what, to my mind, is the most material part of the special adjudicator's determination, which itself will reveal sufficient of the facts for present purposes:

"I accept applying the lower standard that the appellant's elder brother was killed in early March 1999 somewhere outside their home village. The appellant asserted that he feared persecution by ethnic Albanians if he returned to Kosovo because his brother had been perceived as a collaborator of the Serbs. The appellant's evidence was not altogether consistent on the circumstances of his brother's death. His knowledge of who had perpetrated the killing was second hand. The friend who had witnessed it had referred to men in balaclavas who were Albanian, but as the appellant accepted he himself could not tell if those threatening him and forcing him to leave and who were similarly masked and speaking Albanian were Serbs or Albanians. He was unable to explain why local villagers would suspect his brother of being a collaborator when his brother had done nothing of the sort. He suggested that this might be because they were Catholics, but there was nothing in the appellant's evidence or in the country reports to suggest that Catholics were targeted by Muslim Kosovans in this way before the conflict. I also noted that the death was in the weeks when the Serb forces were approaching. Taking all the evidence, including the documentary evidence into account, I am not satisfied that he was killed by ethnic Albanians who suspected him of collaborating."

4. The adjudicator then refers to the circumstances in which the applicant came to leave Macedonia and expressly disbelieved the reason he gave for that. She then continued with these critically important words:

"I am satisfied having heard the evidence that this appellant left Kosovo not because he or his family had been targeted in any particular way because of suspicions about his brother or his religion but because of the movement of Serb troops in March 1999 forcing Kosovans from their homes. There is nothing in the appellant's circumstances which makes him particularly liable to persecution by Serbs or ethnic Albanians if he returns."

5. The only other sentence I read -- which again on its face would appear fatal to the applicant's prospects of asylum -- is this:

"There was no reasonable likelihood of this appellant being persecuted by reason of the fact that he is a Catholic if he returned to Kosovo now nor that this would mark him out as a possible collaborator."

6. Mr Gill really takes two basic points with regard to the critical passages in which the adjudicator rejected the appeal. First he suggests that the adjudicator could not sensibly be satisfied that the appellant and his family had not been targeted by ethnic Kosovans rather than Serbs, given her apparent acceptance of certain important aspects of the applicant's evidence such as that those who had been attacking him and his brother before the critical incidents spoke Albanian and appeared to be Albanian.
7. His second and interlinking point is that the adjudicator was simply in error in saying, in the passage already quoted, that "there was nothing in the appellant's evidence or in the country reports to suggest that Catholics were targeted by Muslim Kosovans in this way before the conflict." He draws my attention to a number of documents in the court's papers, most notably the UNHCR up-date of March 2000 at pages 101 and 116 (and I am giving here the pages of this court's bundle and it is very important that they be up-dated, if necessary, so that whoever hereafter reads this judgment may at once be able to find these particular pages); and, secondly, a Radio Free Europe report of 10 November 2000 at page 137 of the bundle. It is apparent that the Catholic majority in Zym "stayed in the village during the war, but the Muslims were expelled by Serbian forces." It is certainly a possible view of the documents that Catholics either did collaborate, or at any rate were perceived by the ethnic Albanians to have collaborated, with the Serb forces.
8. I have to say that my strong initial reaction on reading these papers was to find implicit, in the critical passages already quoted as to the adjudicator being satisfied that it was Serbs rather than Kosovan Albanians who had attacked and ultimately driven this family from their homes, that the adjudicator had disbelieved much of what the applicant had told her. That may well be so, but Mr Gill has persuaded me that, if it were so, then really she should have said so in terms. The consequence of her not having done so is to leave apparent a tension between the aspects of his evidence which she refers to without discounting them and the clear satisfaction she expresses that matters were not as he suggested they were. That, coupled with the evidence as to the problems that may indeed have affected the Catholics through their being associated with the Serbs, has persuaded me that there is a sufficient case here that should be explored perhaps rather more fully than when this application was initially before the Administrative Court.
9. In the result, I grant permission and remit the matter for full hearing on notice in the Administrative Court. Clearly that should take place sooner rather than later. I cannot suppose that it will require more than a half-day hearing and it is time that this matter was brought to a conclusion one way or the other.
ORDER: Application allowed. Public funding assessment of the applicant's costs.