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

		The Royal Courts of Justice Strand London WC2 Thursday 18th July, 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the determination of the Immigration Appeal Tribunal promulgated on 12th March 2002, when the Tribunal dismissed the applicant's appeal against the decision of the adjudicator, who in his turn had dismissed his appeal from the Secretary of State's refusal of his asylum claim and also in relation to rights claimed under the European Convention on Human Rights. Permission to appeal to this court was refused on the papers by Dyson LJ on 19th June 2002.
2. The applicant is a Roma from Kosovo. He claimed to have been mistreated by the ethnic Albanian Kosovan population because of his Roma ethnicity and his refusal to support the Kosovo Liberation Army during the war in Kosovo. He gave evidence before the adjudicator of incidents of abuse after the war. He stated that he had been beaten up and his cousin had been killed. The IAT was to say this:

"4. The adjudicator carefully analysed the evidence of the appellant and came to the conclusion that he was not a credible witness. He did not accept that the appellant or his family had been physically abused or that his cousin had been killed.

5. We have considered this analysis and the reasons given for rejecting the credibility of the appellant and find them to be sensible reasons which we would have acted on ourselves.

6. The adjudicator did accept that the appellant is of Roma ethnicity and the Roma face substantial problems within Kosovo. He found that the Roma live primarily in enclaves in Kosovo and KFOR and UNMIK [those are the international community bodies] provide security for those enclaves. He accepted the appellant and his family may be at risk of discrimination in Kosovo but did not accept there is a real risk of persecution or mistreatment in violation of Article 3 of the European Convention on Human Rights (ECHR).

The adjudicator, for his part, had recounted the account given by the applicant in very considerable detail at paragraphs 8 to 20 of the determination. I need not repeat those passages. Then the adjudicator said this:

"28. I turn first to assess the credibility of the Appellant. The evidence he gave before me was very short and there were relatively few questions asked of him in cross-examination. There are however major differences between the accounts given by the Appellant on his SEF Form and at his interview.

29. First, on the SEF Form the Appellant says that he and his family were harassed by local Albanians on account of their Roma ethnic origin. (Section 1) he says that they verbally and physically abused him and his wife and that he was almost killed. Again, in Section 5 he says his wife, daughters and son have been many times physically and verbally abused by among others neighbours. However, at the interview he was asked whether the family had been physically harmed in any way (question 27) and he replied `we did not suffer any physical assault('."

3. The adjudicator proceeded in subsequent paragraphs to give other examples of discrepancies in the accounts given by the applicant.
4. In his grounds of appeal to the IAT, the applicant asserted that the adjudicator was wrong about at least one of these alleged discrepancies. That related to what he had said about the death of his cousin and whether he and the cousin lived in the same place or in different places. However, having checked the references given upon that matter by the adjudicator in paragraph 31 of his determination, it is plain to me that his references to that material were all accurate. It has been one of Mr Waheed's submissions today that the adjudicator's adverse findings on credibility ought to have been upset by the Tribunal. The Tribunal gave leave to appeal to itself, and one of the grounds for that leave related to the credibility findings made by the adjudicator. I have already set out, however, the conclusions which at the substantive appeal the IAT reached in relation to credibility. Mr Waheed says that he had made application for his client to give oral testimony to the Tribunal. That was refused. There was also a new written statement made by the applicant for the purposes of the tribunal hearing. The Tribunal, says Mr Waheed, did not really consider that, although some mention was made of it at or near the end of the hearing by one of the lay members.
5. I have read the fresh statement. It does not seem to me that it represents anything that could amount to a substantive assault on the careful approach taken by the adjudicator to the credibility of the applicant. Nor is the matter advanced by a letter from solicitors complaining about the manner in which the interview had been conducted. That too I have considered.
6. As regards the applicant's credibility, the IAT were in my judgment entitled to come to the conclusion they did. However, in a sense that is a postscript to the case, although I have dealt with it first. A principal submission advanced by Mr Waheed concerns the closing passages in the IAT's determination. They said this:

"12. The Organisation for Security and Co-operation in Europe (OSCE) Municipal Profile for Klina of March 2001 indicates that there are at present some 1126 Roma in the municipality which represents 2.4% of the population which is only slightly less than the Roma population of the 1991 census.

13. It also indicates that there is a substantial security presence in the municipality including an Italian company and a United Nations civil police station as well as local police officers.

14. In an annex to that report of June 2000 it states; `There are some 200 Roma families who are living throughout the municipality. In general their security is not in issue as they are integrated within the community'.

15. It is clear that there is a sufficiency of protection available to the Roma in Klina.

16. Considering these matters we conclude that even though Mr Waheed is undoubtedly correct in his submissions that there are areas of Kosovo in which Roma would have a well-founded fear of persecution this appellant's home area of Klina is not one of them."

7. Mr Waheed's submission is that the IAT were not entitled to treat the area of Klina as the applicant's home area for the purposes of assessing whether or not he entertained a well-founded fear of persecution against the event of his being returned there. If anything, any issue as to whether he might be returned to Klina would have to be considered in relation to the principles governing what is called the internal flight alternative. He showed us a map of the relevant area and indicated that the village in which the applicant lives, Trstnik, is some 11.6 kilometres from Klina itself.
8. He referred to a decision of Mr Supperstone QC, sitting as a deputy High Court judge, in the case of Besim Berisha [2002] EWHC 1526 (Admin). That case however, with respect, seems to me to turn entirely on its own facts. It is not helpful to refer to it further. It seems to me that whether or not a particular area may be designated as a person's home area is so obviously a matter of fact and degree that a tribunal's conclusion upon such an issue cannot be challenged in law unless it transgresses well-known perversity borderlines. There can be no question of that here. We are dealing with a village less than 12 kilometres from the town of Klina itself.
9. Mr Waheed points out that Trstnik is on the other side of a municipality boundary from Klina. That seems to me to make no difference. I detect no error of law in the Tribunal's conclusion that Klina was the applicant's home area. Indeed, it is to be noted that the adjudicator in paragraph 8 of his determination quoted a passage from the SEF Form recording what the applicant had said:

"The main reason why I and my family were forced to leave the village of Trstenik near the towns of Pec and Klina was extreme racial hatred ("

10. That, however, is not the end of the matter. Mr Waheed proceeds to submit that leaving aside the issue as to internal flight alternative, the Tribunal were not entitled to conclude as they did that the area of Klina was not an area in which the applicant would have a well-founded fear of persecution. He referred to a number of materials that are in the bundle and were placed before the IAT. They include, for example, what is I understand a newsletter from an organisation supporting the Roma people. It is called Roma Rights. An issue published in 2000 contains this:

"The ERRC [that is the organisation in question] urged that all projects involving the assisted return of Roma ... be thoroughly evaluated before any further returns were contemplated, and that all persons returning to places from which they have fled or been expelled be provided with 24-hour personal protection."

11. He referred to other material, including a Country Assessment by the Secretary of State and a further assessment by UNHCR. Some of the material is concerned with the general position of Roma in Kosovo. As regards that I have already noted the acceptance by the IAT that there were certainly areas in the country where the Roma might entertain a well-founded fear.
12. He placed particular reliance on the UNHCR assessment as being later evidence than the OSCE report to which the Tribunal referred in paragraph 12. But the UNHCR material was referred to explicitly by the IAT at paragraph 8 and it cannot be said that they failed to have regard to it.
13. While Mr Waheed has been tenacious and persuasive and has done everything that could be done for his client, I have come to the conclusion that this application is in truth an attempt to revisit the factual merits of the case and travels beyond the proper limits of an appeal to this court from the decision of the Tribunal. It seems to me that Dyson LJ, with respect, was right when he said, refusing permission:

"The essential basis of the IAT's decision was that any fear that the appellant may have had of persecution was not well-founded. The IAT was entitled to find that the municipality of Klina was safe (paras 12-15). Trstnik is near Klina ... and the IAT was entitled to regard Klina as his `home area'(, to treat conditions in Klina as evidence of the conditions in Trstnik, and not to consider Klina in terms of an `internal flight alternative'."

14. For my part I would dismiss this application.
15. LORD JUSTICE JONATHAN PARKER: I agree.
ORDER: Application for permission to appeal refused; detailed assessment of the applicant's Community Legal Services Funding certificate. (Order not part of approved judgment)