England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday 14th February, 2001

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal promulgated on 13th October 2000. The Immigration Appeal Tribunal dismissed the applicant's appeal against the earlier decision of the special adjudicator of 11th July 2000 when he dismissed the applicant's appeal against the Secretary of State's decision of 17th August 1999 refusing his asylum claim. The Immigration Appeal Tribunal itself refused permission to appeal on 13th November 2000. Sedley LJ refused permission to appeal to this court on the papers on 5th January 2001.
2. The applicant's personal history put forward in support of his asylum claim is set out succinctly by the Tribunal at paragraphs 4 and 5 of their determination:

"4. The appellant is an ethnic Serb who was born and lived all his life in Borovo Selo in Vukovar eastern Slavonia of the Republic of Croatia. The village was populated by Serbs. As a Serb he became a member of the SDP [Serbian Democratic Party]. In 1991/1992 he was conscripted into the Serbian forces to defend his village against the Croatian forces.

5. In January 1998 Vukovar fell under the control of the Croatians. As a member of the Serbian armed forces and having been a member of the SDP he was exposed to persecution and constant harassment by Croats. In January 1998 after the United Nations Forces left Croatia he was subjected to provocation and `discriminatory practices'. In order deliberately to force him out of Croatia together with other ethnic Serbs the Croatian authorities made thousands of Serbs unemployed and left them without state benefits. The appellant did not have any financial problems because he found employment with a private Serbian firm. In January 1998 he received death threats from local Croats. The authorities failed to protect him and he also heard rumours of a secret list of wanted former Serbian soldiers accused of war crimes. He also heard rumours of the disappearance of Serbs. He realised that the former Croatian soldiers and war criminals were now in Croatian police uniform and were behind the intimidation of Serbs. A man who knew him and his family harassed him. The local authorities and the police were aware of this harassment but he could not claim police protection."

3. I should say, as the Tribunal recorded, there was no issue as to the applicant's credibility. In paragraph 10 the Tribunal said this:

"The Special Adjudicator noted that there was no dispute that the appellant had experienced harassment from individual Croats. He had not claimed to have been harassed or ill-treated by the Croatian authorities. His case was that the authorities were unable or unwilling to give him protection from the harassment of these individuals."

4. My understanding is that was the same case as was put to the Tribunal.
5. In his skeleton argument Mr Waheed for the applicant seeks permission to appeal essentially in respect of two broad areas of the case. First, what is said to be the particular risk he faces as a soldier of the Serb army during the civil war. There are it is said secret lists drawn up of such people who are particularly exposed to a risk of persecution. Second, the Tribunal's assessment of the general situation for Serbs in Croatia.
6. As regards the first of these matters, the applicant relied on previous decisions of the Immigration Appeal Tribunal which are before me and were before the Immigration Appeal Tribunal in this case. In relation to that it is germane to notice that Sedley LJ when refusing permission on paper said:

"In a constantly changing situation there is no legal parity between one asylum decision and the next. Here the IAT correctly directed itself that experience of persecution was not essential to a well-founded fear, but its careful evaluation of the available in-country reports led it to the conclusion that by September 2000 there was no longer reason to anticipate Croat persecution of former Serb conscripts by or with the active or passive connivance of the State under its present regime."

7. I certainly agree with the first sentence of Sedley LJ's decision there. One cannot simply assume, certainly not with the passage of time, that a view taken by the Tribunal as to the risk of persecution generally arising in a State on one date ought properly to determine the view they should take of such a question at a later date.
8. The reason however which has persuaded me to grant permission to appeal- with I should say some considerable misgivings - really arises in relation to the second area canvassed by Mr Waheed. He referred to a passage in paragraph 29 of the Tribunal's determination, and I should say that this passage is amongst a set of paragraphs in which the Tribunal is expressing its conclusions upon the matter. There the Tribunal say this:

"However it is our view, on the evidence now produced that the change of policy as set out in Bulletin 3/00 is justified particularly for those such as this appellant who has not demonstrated that he has suffered past persecution, as found by the Special Adjudicator. We cannot accept that the UNHCR would be actively promoting and encouraging the return of ethnic Serbs to Croatia were it to be otherwise or were the submission that the reforms have not yet trickled down sufficiently at local level to be made out."

9. The UNHCR information was contained in an e-mail, page 75 of the bundle, which includes these statements:

"Changes are beginning to take place at the level of the central Government and through the Parliament. These (and the tensions caused) are also exemplified in the enclosed reports. There are still political forces opposed to these changes and there is a gap between the Government's official position and the reality at the local authority level. While changes are taking place at a rapid speed at the high levels, such changes are not trickling down at the same speed. Because of this gap I feel that we need to continue with a cautious attitude in relation to return of Croat Serbs currently benefitting from International Protection."

10. It is quite true that later in paragraph 29 the Tribunal referred to the UNHCR's assertion that caution is required. Mr Waheed's point is that is really nothing in the reasoning here that tells one what the Tribunal made of the so-called gap referred to by the UNHCR. He submits that there is a very difference here disclosed between the aspirations or even the achievements of the central government in the year 2000 in Croatia and what is happening on the ground. The matter is he submits supported by a report dated July 2000, but relying on earlier material from the Organisation for Security and Cooperation in Europe where, at paragraph 8, it says:

"However, the effects of sweeping changes at the central level have been tempered by a lack of significant shifts at the local and county levels in the war-affected areas where the former ruling party remains the strongest party in power. The still slow pace of refugee return and repossession of property can be explained in part by this fact. Change in the political environment in the field will depend on the outcome of the nation-wide local elections to be held by spring 2001."

11. Although I have to say in general terms this determination of the Immigration Appeal Tribunal is very full and very careful, I do consider it just arguable that it is defective for want of any clear explanation as to what the Tribunal made of those materials.
12. Given the anxious scrutiny with which courts and tribunals alike are enjoined to regard these cases, Mr Waheed has just enough for permission.
ORDER: Application for permission to appeal granted; legal aid assessment of the Claimant's costs. (Order not part of approved judgment)