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 16th January, 2002

1. LORD JUSTICE ALDOUS: The appellant, Mr Fadil Krasniqi, appeals with leave of this court against the decision of the Immigration Appeal Tribunal dated 22nd July 2001. In that decision the IAT dismissed the appellant's appeal against the decision of a Special Adjudicator which rejected his claim for asylum.
2. The appellant was born on 21st May 1976. He is a citizen of the Federal Republic of Yugoslavia. He originates from Kosovo and is of mixed ethnicity, his father being an Albanian and his mother a Roma. He arrived in the United Kingdom on 27th October 1998. He was seen disembarking from a lorry in the Maidstone area and was arrested. He claimed asylum on the basis that, as a Kosovan Albanian, he feared persecution from the Serbs. He was interviewed in Rochester Police Station and the record of his interview shows that he was asked "What particular event caused you to leave your own country?" He replied:

"The reason why I left my country is similar to many Kosovan Albanians that have left for other countries. I cannot say in particular why I have left my country but there are many reasons that caused me to leave. I believe that your government is aware of them.

Q. I need to know from you exactly why you left your own country?

A. I left Kosovo on 22nd October 1998. That was because the war had started in some regions of Kosova such as Dronice. My father and my two brothers joined the KLA and went to Dronice. Me, my two sisters and mother stayed at home in our village of Majac. By the beginning of September the war spread and was coming closer to our village. So me, my mother and my two sisters had to leave our village and went to stay at our uncle's place in the village of Makovc."

3. He was asked, "Why don't you go back to Kosovo now, the war has stopped?" His reply was:

"I can say that the front line of the war has finished but there is still a war going on inside Kosova and it's resulting in civilian deaths. After speaking to my family and my relatives on the phone they've informed me that the perpetrators of the massacres in Kosova, I mean the Serbs are still in Kosova and are murdering people discriminately, part of them have only changed uniform. These are the reasons that make me unable to return to Kosova (safety reasons). It is obvious that the government in Kosova is not in the hands of Albanians and until a stable government takes power I cannot return to Kosova."

4. By letter dated 10th June 2000 the Secretary of State rejected his application for asylum. That letter recited that the basis of his claim was that he feared persecution in Kosovo as a Kosovan Albanian and on account of the war. The Secretary of State said he had considered his application and concluded that he did not qualify for asylum. The letter stated that the Secretary of State was satisfied that the risk of persecution to the Albanian majority by the authorities of the Federal Republic of Yugoslavia had been removed with the establishment in Kosovo of an International Peacekeeping Force, KFOR. The letter went on to point out that the United Nations High Commissioner for Refugees had been organising the repatriation of refugees back to Kosovo since June 1999 and as of 30th July 1999 some 800,000 ethnic Albanians, representing 90 per cent of those who fled Kosovo in 1998 and 1999, had voluntarily returned to Kosovo. The letter went on to point out that while the Secretary of State was aware that there were security difficulties in Kosovo, which the UN administration was seeking to address, he had concluded that the appellant would not be at risk of persecution for a Convention reason. The letter went on to accept that the applicant had experienced harassment at the hands of the police, but in view of the current situation it was highly unlikely that he would suffer a similar persecution if he was to return.
5. Against that decision of the Secretary of State the appellant appealed. The Special Adjudicator who heard the appeal summarised his evidence, contained in a statement signed on 12th December 2000. As recorded by the Special Adjudicator, the statement said that he had lived for most of his life in Kosovo until the Serbs forced him to leave. His mother, two brothers and two sisters currently live in Pristina. The appellant's family had quite a high profile. One uncle was a writer, a member of the Writers' Society whose president was Ibrahim Rugova, the leader of the LDK. Another uncle was a judge who became a private lawyer. Another uncle had been mayor of their locality and a member of the Yugoslav Parliament.
6. In 1990 the appellant had registered at a secondary school. When the school was shut down, he then took part in demonstrations which ended violently when the Serbian police broke them up. The appellant continued his education on a private and informal basis. Between 1994 and 1997 he studied law at the University of Pristina and lived with one of his uncles. At that time his first cousin, who gave evidence before the Special Adjudicator, was the editor of a newspaper.
7. When war broke out the appellant's father organised local men to fight with the LDK. He was subsequently killed and the appellant was advised by his brother to leave Kosovo for fear that he would be killed by the Serbs. That he did and he came to this country.
8. The appellant also told the Special Adjudicator that his mother was Roma. He said that when he was young he had been harassed because he was half-Roma and that was another reason why he feared persecution. In his cross-examination the appellant was asked about his harassment as a child. As recorded by the Special Adjudicator, he said:

"... the harassment he suffered as a child (presumably meaning on account of his part Roma ethnicity) were the kind of problems that any child experienced. Only when you grew up did you really understand what your ethnic origin meant. When asked why he had not mentioned being harassed on account of his Roma ethnicity in interview he replied that he had felt that he was an Albanian."

9. The Special Adjudicator considered the submission that the appellant would suffer persecution because of the fact that he was half-Roma. He said:

"22. There is a serious possibility that this appellant is of mixed ethnic origin. He has produced a copy of his mother's birth certificate and his Counsel has seen the original. It shows that his mother was Roma. But it is significant that the appellant did not see fit to mention his mother's ethnicity when interviewed. Before me, when he said he was harassed as a child on account of his mixed Roma ethnicity, he did not give details but appeared to say that such harassment was a normal childhood experience. Whilst, of course, I do not condone harassment or persecution of Roma, the appellant did not seem to think this was out of the ordinary or of any great severity. The appellant's mother's ethnicity does not seem to have damaged or hampered the family. A number of uncles have enjoyed moderately prominent positions in public life and the appellant's father, married to a Roma wife, was a businessman with a shop. The appellant himself was able to go to University. I accept entirely that the background evidence shows that Roma in some parts of Kosovo are the victims of harassment, if not of persecution, just as they are elsewhere in eastern Europe. They are seen as allied with the Serbs because Roma were sometimes not forced out of their houses when ethnic Albanians were. But I do not consider that in view of the appellant's evidence there is a serious possibility that this appellant would be persecuted if he were to return to Kosovo, on account of his Roma ethnicity."

10. It is to be noted that the Special Adjudicator was aware of the position of Roma after the summer of 1999 when the war had ended, because he refers to the fact that they were seen as having been allied with the Serbs because they had not been forced out of their houses.
11. The Special Adjudicator went on to consider whether the appellant would suffer persecution at the hands of the former KLA or by others. He concluded that the appellant had failed to show that if he had returned to Kosovo in the Federal Republic of Yugoslavia there was a serious possibility that he would be persecuted or that that would be for a Convention reason.
12. The appellant sought leave to appeal against that decision. The proposed grounds of appeal concentrated on the fact that he was of mixed ethnic origin. In summary it was asserted that if he were returned to Kosovo, he would be subject to violence, harassment and discrimination from the ethnic Albanian community due to, amongst other things, the fact that he was of mixed ethnic origin.
13. The Immigration Appeal Tribunal gave leave to appeal because it was of the opinion that the grounds of appeal merited further consideration. At the hearing of the appeal on 27th April 2001, the only matter relied on as providing grounds for asylum being granted was the risk of persecution of the applicant due to his mixed ethnic origin, presumably by the Albanian community.
14. In the Tribunal's decision of 27th June 2001 they reviewed the submissions made by Mr Nicol, counsel who appeared on behalf of the appellant, and Mr Ridge, the Home Office presenting officer. It is right that I should read the relevant parts of the determination, as it is those parts which are the subject matter of the appeal:

"10. 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 on 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. It is by reason of this that the appellant maintains that he has a fear that he will be persecuted were he to return. The UNHCR in its various documents has indicated groups of persons who may not be able to derive full benefit of the protection offered by UNMIK AND KFOR. Among these groups are those of mixed ethnic origin. From the reports which we have seen there would appear to be a number of minority ethnic groups in Kosovo and Roma are not singled out as being any one of such groups in need of special protection.

11. 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. So far as the question of adequacy of protection by UNMIK and KFOR is concerned, we would refer to and follow the determination of the Tribunal in the case of Dyli.

12. Examining the position of this particular appellant and his family, we observe that the family is one which has become well integrated in its own particular community. The family is not one which has indicated any sympathy or support for the Serb cause and aims so far as they relate to Kosovo. Quite the contrary, the father and two of the brothers enrolled in the KLA and the father was killed. The family politically allegiance is with the LDK and that party is now the governing party in Kosovo. The father had been an established local businessman. One uncle was a mayor and a member of the Yugoslav Parliament. Another was a judge, the third was a member of the Writers' Union and apparently a fairly well-known writer.

13. This is not a run-of-the-mill Roma family that has been subjected to constant persecution, either in the past or is being so subjected currently. Although we take note of the reservations of the UNHCR with regard to those of mixed ethnic origin, the fact that the appellant's four siblings continue to live in the Pristina area, the fact that there is no evidence that three of those four have been subjected, since UNMIK and KFOR were established in Kosovo, to any persecutory treatment, nor is there any before us in relation to other members of the family other than Musa, leads us to the view that this appellant would not come within the category in respect of which the UNHCR has expressed concern."

15. The decision goes on to deal with the assault which took place upon Musa, and the Tribunal concluded in this way:

"16. Nothing in the evidence which has been submitted to us would indicate that, in the case of this particular appellant, UNMIK and KFOR and the local authorities in Kosovo are unable or unwilling to provide sufficient protection to the appellant were he to be returned to Kosovo now, and were he to be harassed or subjected to any persecutory treatment at the hands of any private citizen or group of citizens in Kosovo."

16. Mr Nicol on behalf of the appellant drew attention to the first two sentences in paragraph 10 of the IAT decision, the last sentence of paragraph 10 and the first sentence of paragraph 11. He submitted that no tribunal properly instructed and acting reasonably could have reached the conclusion in those sentences that the Tribunal did.
17. The first two sentences of paragraph 10 accept that there was discrimination by the civilian population in Kosovo against Roma, which the Tribunal said was along the lines of that which took place in the Balkans and mid-European countries, such as Hungary, Romania and Slovakia. It went on to say that it would not appear that such discrimination was any greater in Kosovo than in the other countries. Those sentences are criticised because, Mr Nicol submitted, no distinction had been made between the position before the summer of 1999 and after that date.
18. The documents, which he showed us, do show that Roma were in a different position after the summer of 1999 as they were seen by the Albanian population as having sided with the Serbs. That of course was noted by the Special Adjudicator. It is quite correct, as Mr Nicol pointed out, that there was a change after the summer of 1999, I think June 1999, and I will have to refer to some of the documents which show just that. It is therefore unfortunate that the Tribunal did not refer to that change. However, the crucial question for decision by the Tribunal and by this court is whether this applicant had shown a reasonable likelihood of persecution. It is this particular applicant which is important, not some other applicant or applicants.
19. The last sentence of paragraph 10 states that the reports seen by the Tribunal suggest that Roma are not singled out as being any one of a particular ethnic group as needing special protection. Mr Nicol criticised that statement. He read it as suggesting that Roma were in no different position to all other ethnic groups in Kosovo. I do not so read the sentence. I believe the Tribunal were equating Roma with other groups which could not obtain adequate protection, such as Muslims, Slavs and Gorani.
20. As I have said, criticism was also made of the first sentence of paragraph 11. As the documents suggest, the mere fact of being the son of a mixed marriage does not mean that that son will suffer the same treatment as every other person from a mixed marriage. It must depend upon the circumstances, and in particular it is likely to depend upon whether the family is recognised as being half Roma; whether the applicant looks Roma; whether he speaks Albanian; whether he has an accent; and all such particular matters. Each case must, in my view, be considered on its particular circumstances. I believe that that is what the Tribunal did.
21. The Tribunal went on and reasoned that the appellant's mother was a Roma, and that did not of itself provide danger of persecution against which the authorities could not provide adequate protection. The reasons given were, firstly, the particular position of the appellant's family. They quite clearly are a family which played a prominent part in local life, as found by the Special Adjudicator. As the Tribunal said, this was not the run-of-the-mill Roma family that had been subjected to constant persecution, either in the past or was currently being persecuted.
22. Next, the Tribunal pointed to the fact that the appellant had four siblings, none of whom had been persecuted because of their ethnic origin.
23. The Tribunal also dealt with the attack upon one of his brothers. It was pointed out that the authorities were dealing with that in an appropriate way.
24. Mr Nicol took us to a number of reports of UNHCR and Amnesty International covering the period 1999 to 2001. They do show that the position of Roma changed in the summer of 1999 when the war ended. This can be illustrated by reports of the position prior to the summer and thereafter. I turn first to a report of the US Department called "1999 Country Reports on Human Rights", released by the Bureau of Democracy, Human Rights, and Labor, US Department of State in February 2000. At page 134 of the bundle the report records:

"Discrimination and violence against ethnic Albanians, Muslims, and religious and ethnic minorities worsened during the first 6 months of the year. Police repression continued to be directed against ethnic minorities, and police committed the most widespread and worst abuses against Kosovo's 90 percent ethnic Albanian population. The regime limited unions not affiliated with the Government in their attempts to advance worker rights. There was some child labor and the province served as a transit point for trafficking in women and girls.

In the last half of the year, UNMIK adhered to international human rights standards in its operations; however, some problems remained due to lingering interethnic tension. Lengthy pretrial detention was a problem, as were long delays in trials due to difficulties finding proper staff and establishing facilities. The judiciary was subject to outside influence. Violence and discrimination against women remained serious problems. Societal violence and discrimination against ethnic Serbs and Roma worsened significantly during the last 6 months of the year. Over 300 civilians were killed and over 1,000 cases of arson reported, beginning in June. Societal discrimination also targeted Roma, in retaliation for the group's alleged collusion with Serbs in the period before and during the war. An estimated 100,000 Serbs and Roma left the province, fleeing for elsewhere in Serbia or to other countries. Trafficking in women and girls was a serious problem."

25. The same document recorded, at page 140 of the bundle:

"According to Human Rights Watch, after the withdrawal of Serbian forces, KLA members tortured ethnic Serbs, ethnic Albanians suspected of collaborating with the Serb authorities, and Roma, including beatings of elderly ethnic Serbs. KFOR found a torture chamber in a KLA dormitory in late August, which contained weapons, ammunition, explosives, and booby traps.

According to Human Rights Watch, KLA members participated in an unspecified number of rapes and murders of Serb and Romani women, but there is not sufficient evidence to substantiate allegations that the ethnic Albanian leadership planned such attacks."

26. At page 146 of the bundle, the same document stated:

"An estimated 164,000 Serbs and an unknown number of Roma left the province, many of whom were compelled to flee by the harassment and intimidation. According to field research conducted by Roma NGO in early July, all of the Romani communities it visited had less than half of their preconflict Roma populations. Civilians were also responsible for the random destruction and arson of private property."

27. Over the page, at page 147 of the bundle:

"Since the end of the conflict, many Serb- and Roma-owned homes were looted and then burned."

28. Finally, the same document records at page 161 of the bundle:

"The Romani population generally was tolerated and there was no official discrimination in the first half of the year. However, prejudice against Roma was widespread and increased amongst the ethnic Albanian population during the conflict in the last half of the year. Incidents of societal violence against Roma increased sharply. As of mid-July, some 3,000 Roma, who had experienced difficulty finding refuge within the province, fled to a Romani settlement at Konic in Montenegro. A total of 8,000 Roma fled to serious cites in Montenegro."

29. Similar reports appear in UNHCR documents. It is sufficient to quote from one which is headed "Overview of the situation of Ethnic Minorities in Kosovo" of 3rd November 1999, at page 190 of the bundle:

"The overall situation of ethnic minorities in Kosovo remains precarious. While the crime statistics released by the United Nations Mission in Kosovo (UNMIK) in mid-October indicate a decline in the overall number of violent incidents as far as minorities are concerned, this may be due in part to the fact that there has been a significant decrease in the overall non-Albanian population over the past four months. Informed observers agree that there is a climate of violence and impunity, as well as widespread discrimination, harassment and intimidation directed against non-Albanians."

30. Mr Nicol rightly submitted that the documents that he had placed before us showed that some persons of mixed ethnic origin do and did suffer persecution in Kosovo. It is sufficient for me to refer to two documents. The first is a letter of 4th November 1999 from the United Nations High Commissioner for Refugees to the Home Office. That states, at page 200 of the bundle:

"Mixed marriages

As in Bosnia, persons of mixed ethnicity or in mixed marriages could face serious security problems in the current environment, quite apart from severe forms of discrimination. It is not unusual for them to receive telephone threats and verbal and physical assaults at home or in the streets."

31. In the UNHCR document headed "Kosovo Albanians in Asylum Countries: UNHCR Recommendations as regards Return", Update, March 2000, it is stated at page 236 of the bundle:

"Persons in mixed marriages and persons of mixed ethnicity can face serious protection problems in Kosovo, including harassment and violence, restricted freedom of movement, and discrimination in access to health care, education, public utilities and employment. Often such persons were the victims of similar treatment under the Serbian regime due to their Albanian heritage. They are now targeted due to their non-Albanian heritage.

Language is often a critical factor, and many children of mixed marriages do not speak Albanian fluently. This may be especially true of persons who have spent extended periods of time outside of Kosovo. In the current climate, it is dangerous to speak Serbian, or even to speak Albanian with a Slavic or Roma accent, in public regardless of one's actual ethnicity.

In addition, regardless of their language abilities, Albanians in mixed marriages may be targeted simply for the act of marrying non-Albanians. The fact that someone is married to or was previously married to a non-Albanian may be common knowledge in the local community or it may be apparent by their surname. Such persons are often perceived as `worse than Serbs' and as such subject to violent attack, akin to that faced by members of minority groups.

Furthermore, mixed families can have more difficulties than `homogeneous' minority families as they frequently end up being excluded from all ethnic communities. This is especially problematic at present, when such vital services as health and education are often provided along the lines of ethnicity. So whereas a minority member can usually access some necessary services or do shopping within their own community, a person of mixed ethnicity may not be able to do so."

32. It must be remembered that this appellant has to show that there is a reasonable likelihood that he will suffer persecution if he is returned to Kosovo. It is to be noted that there is no suggestion that he does not speak Albanian fluently; there is no suggestion that he speaks with a Roma accent; there is no suggestion that he has ever suffered any difficulty in education; there is no suggestion that he or his family are suffering any difficulty in making use of the vital services such as health and education which are, according to the UNHCR document, often provided along the lines of ethnicity.
33. I accept that the Immigration Appeal Tribunal did not set out and refer to the background information contained in the reports that had been put before them as to the position of Roma and the position of people of mixed ethnic origin. In particular the Tribunal did not set out the difference in treatment that they received before and after June 1999. However, as I have said, the crucial point in this case was whether the appellant, who is of mixed ethnic origin, would be subject to Convention discrimination. That calls for an examination of the evidence. What is it?
34. First, the appellant when he arrived in this country never suggested that he had been persecuted because of his ethnic origin. That of course cannot be conclusive as the position changed after he arrived in this country in June 1999, but it is a factor.
35. Second, his relations are established members of the Albanian community. Mr Nicol said that that was an irrelevant consideration, but that is not so. They are the people who will be able to support him when he returns to Kosovo, and the fact that he has an established family who are not subject to discrimination is a factor proper to take into account when coming to the conclusion as to whether he has established his case.
36. Third, the appellant has four siblings living in Kosovo. None of them seems to have been persecuted because of their ethnic origin. I do bear in mind the knife attack upon Musa, but that in my view was dealt with by the Tribunal in an appropriate way. Further, there is no evidence that they have suffered any difficulty by reason of their mother being a Roma since the summer of 1999. Mr Nicol suggested that that was again something which could be disregarded. He put forward an argument based upon statistics. He submitted that there was no reason to believe that the appellant would not suffer persecution because four related persons did not suffer persecution when many others had. Those four were insignificant statistically when considered against the total number of people in the same position. That submission disregards the similarity between the appellant and his siblings, and seeks to rely upon statistics which requires a comparison of equals not a comparison of unequals. On the evidence the only people with which a proper comparison can be made are the siblings because they have the same background and origin.
37. Fourth, the appellant is a person of education, coming from a family background of standing and they can support him.
38. Fifth, the appellant regards himself as Albanian and said so on more than one occasion. That is an indication not only that he perceives himself as being an Albanian, not one of mixed ethnic origin, but it is an indicator that other persons would view him in that light. There is no evidence that others do not see him as Albanian. That is a factor to be taken into account.
39. Sixth, his mother, who is a Roma, does not appear to have been the subject of persecution in the past. Again that is a factor, although it could not possibly be determinative.
40. Seventh, the evidence as to persecution of persons of mixed ethnic origin does not establish that there is persecution of all such persons. The documents make it quite clear that it will depend upon the circumstances and the facts of each case.
41. Eighth, the only evidence of any recognition of the appellant as having mixed ethnicity was when he was at school. I have quoted the passage from the Special Adjudicator's decision, but it is convenient to refer to it again. He made it clear that the harassment he suffered as a child was the kind of problem that any child experienced. It was only when he grew up that he understood what ethnic origin meant. When he was asked why he had not mentioned being harassed on account of his Roma ethnicity in the interview, he replied that he felt he was an Albanian.
42. The Immigration Appeal Tribunal had before it a considerable amount of documentary evidence in respect of the conditions in Kosovo. It could not have been under any doubt that Roma were the subject of discrimination, nor that mixed ethnic persons could be. Upon the evidence, the Tribunal was in my view entitled to conclude that the appellant, who was of mixed parentage, had not been subject to discrimination and would not be. The family, as the Tribunal pointed out, were supporters of the LDK, which is a mainstream Albanian political party, and the appellant's father and two of his brothers had fought for the LDK against the Serbs. As the appellant had made clear at his interview and in his cross-examination, he considered himself to be an Albanian rather than Roma, and it appears that his family were fully integrated into the Albanian community and had achieved some prominence. I need not repeat what I have already said about the uncles who had played a prominent part. They quite clearly would be in a position to support him when he returns.
43. I accept that Roma can be at risk of persecution, particularly if they are perceived, rightly or wrongly, as having supported the Serbs. There was in my view no evidence to suggest that the appellant would be so regarded. His family had actively fought against the Serbs and the only attack made upon them had been dealt with by the police.
44. In my view, the Tribunal was entitled to come to the conclusion that it did. I therefore would dismiss this appeal.
45. LORD JUSTICE KEENE: I agree. It seems to me that in the light of the evidence produced, the IAT, in paragraphs 10 and 11 of its decision, did understate somewhat the problems generally experienced by Roma and those of mixed ethnicity in Kosovo from mid-1999 to mid-2000. But the Tribunal rightly applied its mind first and foremost to the position of this particular appellant. In assessing that it was entitled to attach considerable weight to the experiences of his immediate family, and especially to those of his siblings. Its conclusions on his own position and the likelihood of him being persecuted if returned to Kosovo seem to me to be unassailable.
46. I, too, would dismiss this appeal.
47. SIR CHRISTOPHER SLADE: I agree with both judgments.
ORDER: Appeal dismissed; detailed assessment of the Appellant's Community Legal Funding Certificate. (Order not part of approved judgment) ____________________