England and Wales Court of Appeal (Civil Division) Decisions

Saliu v Secretary of State for the Home Department [2002] EWCA Civ 315 (14th March, 2002)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th March 2002

Lord Justice Schiemann:

This is the Judgment of the Court

1. Before the Court is an immigrant’s asylum appeal from the Immigration Appeal Tribunal. The Tribunal had dismissed the immigrant’s appeal from an adjudicator although it criticised his determination in a number of respects. We announced in Court that we had decided to remit the case to the Tribunal. We now give our reasons.
2. The background to the case is that the immigrant comes from Decan in Kosovo, Federal Republic of Yugoslavia. His father had been a supporter of the KLA but had ceased his support. The basis of his claim was that he feared persecution at the hands of supporters of the KLA (“KLA remnants”)if he were returned. The basis of his fear was that his father was perceived by the KLA remnants as a deserter and that their loathing of deserters would take the form of killing him because in their eyes he was the son of a deserting father. His father had helped him to escape to England.
3. The Tribunal had before it material (“the new material”) which was not before the adjudicator. The part of the determination which leads us to quash the Tribunal’s decision is contained in paragraphs 15 and 16.

“15. The Tribunal has no reason to doubt the authenticity of this newspaper story. We are faced, therefore, with evidence that the appellant’s father – Hasan Saliu – has been the subject of threats from KLA extremists. Taking this item of evidence together with the appellant’s own account we are prepared to accept that if he returned to Decan he would face some degree of risk of serious harm from KLA extremists who would know him to be the son of one of their particular targets. We do not think that the risk is likely to be a high one. For one thing the KLA extremist’s grievance is against the appellant’s father and there is no evidence that they have specifically extended their threats to his son. For another the degree or risk is likely to be significantly reduced by the protection situation in Decan.

16. We have just found that in Decan any risk the appellant would face of serious harm from KLA extremists would be at most low-level. However, in order to show a well-founded fear of persecution in Decan, it is not enough even for the appellant to show that he faces a real risk of serious harm for a Convention reason. As their lordships have made clear in Horvath [2000] Imm AR 552, a claimant has also to show that protection against such harm would not be sufficient in his case. We consider it salient here that not only is there evidence set out in the objective country materials that KFOR and UNMIK are proving able to protect Kosovars generally; there is also clear evidence that UNMIK and KFOR have a particular presence in Decan and have launched a specific operation to catch the same KLA assassins who appear to have also made dire threats against the appellant’s father. In the light of this evidence, we are satisfied, therefore, that the appellant would be able to return to Decan and receive effective protection.”

4. The new material included a press statement reporting the shooting of Sajmir Gorishti by KLA remnants. It includes a paragraph which reads:

“UNMIK sources in Decan said that extremist groups had warned Mr Gorishti to stay away from Decan as a result of ideological differences with the KLA in the past. According to information sources the same threats have been made to Hasan Saliu and Rifat Elezaj who so far have not dared to return to Decan.”

5. Also in the new material was a letter which purported to come from the immigrant’s father, Hasan Saliu, and no one has suggested that it may not be what it appears to be. The father writes that he is no longer in Decan and can not go back there. He says that he came across people who had worked for the KLA who told him of a group which was working secretly in Decan. “They said that the traitor family of Hasan Saliu has to think twice before coming back to Decan. They have also said ‘We do not forgive Hasan for what he did during the war’. ‘He and his family are going to pay with their life if they ignore our warning and they return to Decan’.
6. It is clear that the material in this letter was something which it was important for the Tribunal to take into account. What they made of it was a matter for them, but it had to be considered. There is however no mention of the letter in the determination. This led to a ground of appeal that the letter had not been considered or referred to by the Tribunal.
7. In refusing leave to appeal to this Court the Tribunal said:

“The statement at 9(b) of the grounds is factually correct. The Tribunal did not expressly refer to the letter from the Appellant’s father. However, this letter had been put before the Tribunal; and both sides made submissions concerning it during the hearing before the Tribunal. Whilst the Tribunal would accept that it would have been desirable to make express reference to this letter, it did take the letter fully into account. Indeed the reference at paragraph 15 of the Tribunal’s determination (“…there is no evidence that [the KLA] specifically extended their threats to his son…”) carefully reflects the reference in the father’s letter to threats against the father and his family.”

8. Miss Webber on behalf of the immigrant submits it is clear that the threats were extended to the family. We agree. She submits that the family consisted of the son and his mother and in those circumstances the natural way to construe this letter is as containing a threat against the son. We agree. She submits that the Tribunal clearly attached importance to the fact (as they erroneously saw it) that there was no evidence that the KLA remnant had extended their threats to the son. We agree. She submits that had the Tribunal appreciated that the threats were directed at the son they might have come to a different conclusion about the level of risk which he faced. We agree.
9. Mr Tam on behalf of the Secretary of State submits that the conclusion to which the Tribunal came on the material before it was one which was open to it. We agree.
10. However, given that the evaluation of the risk was made on an erroneous basis, the evaluation is not saved because it might have been reached on a correct basis.
11. In those circumstances we quash the decision of the Tribunal and remit the matter to it to reconsider. There were other criticisms made of the determination but in the circumstances we do not regard it as necessary to consider them.
Order: Appeal allowed; matter be remitted back to the Immigration Appeal Tribunal but with a differently constituted panel; Defendant do pay the Appellant’s costs of and incidental to the appeal, such costs to be assessed on the standard basis if not agreed; detailed assessment of the Appellant’s costs for Legal Services Commission purposes. (Order does not form part of the approved judgment)