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 Tuesday, 22nd January 2002

Tuesday, 22nd January 2002

1. LORD JUSTICE DYSON: The appellant is in a citizen of the Federal Republic of Yugoslavia from the province of Kosovo. He is of mixed Albanian/Roma ethnicity. He claims to have entered the United Kingdom illegally on 21st October 1999 and applied for asylum on 22nd October on the basis that he feared persecution from the Serb forces in Kosovo because of his Albanian ethnicity and KLA/LDK sympathies. On 18th November 1991 his representatives submitted an SEF form and a statement from him setting out his asylum claim which was expressed to be based on the fears to which I have just referred. He was interviewed on 16th June 2000. At interview, he said that in addition to the fears that he had mentioned in his SEF form, he was afraid to return because he would be at risk of persecution from the KLA on the grounds of his mixed parentage, his father being Albanian, and his mother Roma. He stated that Roma were perceived as having collaborated with the Serbs, and that his father had been threatened by the KLA for that reason.
2. On 20th June 2000 the SSHD refused the appellant's asylum claim. He appealed to an adjudicator. His appeal was dismissed. Leave to appeal was given by the IAT on 25th April 2001. The appeal was heard on 27th June and dismissed by a determination notified on 3rd August. The appellant appeals to this court by permission granted by Schiemann LJ.
3. Before I come to the grounds of appeal, I need to set out in a little detail the reasoning of the adjudicator and the IAT.

The Adjudicator's determination

4. The adjudicator recorded that in March 1999 Serb troops attacked the appellant's village and, as a result, the appellant and his family had to leave for Albania. They eventually went to Macedonia (where they remained for about two months) and then returned to Kosovo after the United Nations forces had arrived in the province. The appellant said that he and his wife were still in fear of Serb forces and accordingly left Kosovo and arranged to come to the United Kingdom. That was the account that he gave in his statement of evidence.
5. At interview, he said that his mother was a Roma and father an ethnic Albanian and he was afraid to return to Kosovo because Roma were suspected of collaborating with the Serb forces and he feared that he would be a target. He had not mentioned this in his statement since he was not able to concentrate well and was in fear.
6. At the hearing the appellant gave the same account as he gave at interview. He said that he had not mentioned his ethnic origin when he completed his statement of evidence because he was ashamed. He had left Kosovo because of the threats that he had received.
7. The adjudicator said that the appellant told him that his village was in southern Kosovo, about 13 kilometres from Peje. The village is Decan. He said that he had lived all his life amongst ethnic Albanians and had been brought up as an ethnic Albanian.
8. At paragraph 12, the adjudicator set out in some detail what had been said at interview, and rejected the appellant's explanation for not mentioning the matters of which he later complained and which gave rise to his claimed fear of persecution.
9. At paragraph 14 the adjudicator said that there was no evidence that the appellant had ever experienced any problems on account of his half Roma ethnicity, and he found that there was no reasonable likelihood that the appellant would suffer problems on account of this fact and perceptions about his ethnicity if he were to return now.
10. At paragraph 15 the adjudicator said that since mid June 1999 the situation for ethnic Albanians had improved dramatically.
11. So it was that the adjudicator dismissed the appeal.
12. The IAT gave the appellant leave to appeal on the ground that it was arguable that the adjudicator was

"wrong to reject the considerable body of objective country materials indicating that persons of mixed ethnicity and Roma in particular would be at risk if returned to Kosovo currently".

The decision of the IAT

13. The Tribunal found that there had been a clear error on the part of the adjudicator at paragraph 15 of his determination. The adjudicator had been wrong to say that the appellant did not come within any of the categories (apart from former collaborators with the Serbs) that had been identified by the UNHCR, that is to say as a person of mixed origin one of whose parents was Roma. The appellant did not come within one of those categories. But the Tribunal did not consider this to be an error that was fatal to the determination. At paragraph 9 it recorded the acceptance on behalf of the Secretary of State of the fact that

"...the UNHCR report clearly indicated that Roma and persons who could be considered Roma were frequently at risk in Kosovo..."

14. That UNHCR report was the March 2001 update. The Tribunal had regard to paragraph 172 of the UNHCR assessment for the period October 2000 to February 2001 ("the UNHCR assessment"), which contained a detailed report on the Decan municipality in which the appellant had last lived in Kosovo. That paragraph is in this terms:

"172In Decani/Decan municipality an estimated population of 350 to 400 Roma and Egyptians can be found scattered among a number of villages. The vast majority of this group identify themselves as Egyptian and they speak Albanian as their mother tongue which greatly facilitates their relatively easy interaction with their Kosovo Albanian neighbours. There has been a notable improvement regarding the acceptance of the Egyptians by the Kosovo Albanian population. Local Kosovo Albanian leaders are more frequently willing to speak of the needs of this minority group. Many Egyptians were displaced from the municipality during the conflict and have not returned due to the fact that their homes were destroyed. The availability of reconstruction assistance is very limited. A local representative group, the Albanian-Egyptian Organisation has begun the process of documenting the detail of damaged and destroyed houses, with a view to lobbying for adequate reconstruction assistance. A response to their needs on the part of the international community could pave the way for return."

15. The conclusion of the Tribunal is to be found at paragraph 12, and is as follows:

"We find that the clear error at paragraph 15 in the adjudicator's decision is not fatal to this appeal and that considering all the evidence we, like the Tribunal in Avdyli, cannot be satisfied that there will be no risk whatsoever of the appellant [facing] ill-treatment upon his return to Kosovo. However, bearing in mind the previously referred to UNHCR report and the fact that the appellant, by his own evidence, had not suffered persecution before leaving Kosovo, we find that the appellant has not discharged the burden of proof which is upon him to the standard referred to in the adjudicator's determination."

The Grounds of Appeal

16. On behalf of the appellant, Mr Bazini advances the following two grounds of appeal:

(1) it was manifestly perverse of the Tribunal to rely on the UNHCR assessment relating to the appellant's home district as the main reason for concluding that the appellant was not reasonably likely to be persecuted if he returned there;

(2) the Tribunal failed to address the point that the appellant, as a Roma, would be at risk of persecution on return to Pristina, where he was to be removed by the Secretary of State, and when making his journey from Pristina to Decan.

17. I shall take these grounds in turn.

Ground 1

18. Mr Bazini submits that the information at paragraph 172 of the UNHCR assessment merely suggests that there are a few Roma living in the Decan area, and that those who appeared not to be at risk are the Egyptians. There is no suggestion that the tiny minority of Roma in Decan are living there in safety. In fact the report on Decan gives no information on the safety or otherwise of the municipality for Roma. It follows that the Tribunal's reliance on this objective material to conclude that the appellant was not reasonably likely to be persecuted was manifestly perverse.
19. Mr Bazini relies on a number of other passages in the February assessment which, he submits, show that the situation in Kosovo for Roma generally was deteriorating. Thus, for example, paragraph 2 of the report includes this:

"However, from late 2000 onwards, starting more or less in the period immediately after the municipal elections, the pattern of violence has changed. There has been an overall deterioration in the security situation and all minority groups to one degree or another have borne the brunt of this. The number of incidents directed at minority groups appears to be on the increase and judging by the events of February 2001 in particular, the attacks are more highly organised, coordinated and carefully targeted than was previously the case. Roma communities along with Kosovo Serbs continue to figure disproportionately among the victims of ethnically motivated crime but other groups have not been left unaffected."

20. Further paragraphs in the main body of the report to which Mr Bazini has drawn our attention are paragraph 121:

"a continuing cycle of displacement continues to affect many Roma Ashkaelia Egyptian communities".

21. Paragraph 148:

"All three communities [that is Romas, Ashkaelias and Egyptians] continue to face general problems of discrimination and harassment. During the reporting period cases of arson, grenade attacks and murders were also documented. Ashkaelia and Egyptians frequently enjoy greater freedom of movement. This is due to their traditional links with the Kosovo Albanian community and the fact that they speak Albanian as their mother tongue. The degree of freedom of movement enjoyed varies dramatically from place to place."

22. And paragraph 149, to which I shall come later.
23. Mr Bazini also relies on certain passages in the March update as indicating that the position of non-ethnic Albanians Kosovars was by that time precarious:

"3.Non-ethnic Albanian Kosovars, however, continue to endure severe security threats that have compelled many to leave the province to avoid placing their lives and fundamental freedoms at risk."

24. Paragraph 9:

"Kosovo Albanians in mixed marriages and persons of mixed ethnicity face serious protection problems in Kosovo, including harassment and violence, restricted freedom of movement and discrimination with regard to health care, education, access to public utilities and employment. Their protection situation is in many respects more precarious than those affecting members of homogenous minority families as they frequently end up being excluded and vulnerable to physical attack from both of the ethnic groups in which they have a lineage. Persons of mixed ethnic origin and spouses in mixed marriages face danger to their lives and fundamental freedoms in Kosovo solely on account of their background. They warrant special consideration during the status determination procedure and should not be returned to Kosovo."

25. Paragraph 16:

"UNHCR stresses that all members of ethnic minority groups should have unhindered access to asylum procedures and their refugee claims should be considered and determined on an individual basis. The security situation remains especially precarious for members of Kosovo Serb and Roma, Ashkaelia and Egyptian (RAE) minorities. They by and large would qualify for refugee status."

26. Paragraph 20:

"The security situation of Roma, Ashkaelia and Egyptians (RAE) is variable and volatile. Some RAE communities have attained a degree of stability where violent attacks are rare whilst others continue to face unrelenting violence and intimidation. Indeed, ethnically motivated security incidents have in some cases resulted in the loss of life. Furthermore, RAE communities generally suffer discrimination and ostracism from mainstream Kosovar society. While there are some indications that RAE who identify themselves more with the Kosovo Albanian community suffer fewer security incidents than those who attempt to assert their own identity, this is not a universal rule and it is not safe to make such general assumptions. RAE communities continually face fluctuations in the security situation which adversely affect their interests. Although a few spontaneous and facilitated returns have occurred to specific locations, RAE overall continue to face serious protection problems in Kosovo."

27. Mr Bazini submits that in the light of all this UNHCR material as to the objective situation facing Romas in Kosovo, it was not reasonably open to the Tribunal to reach the conclusion that it did; alternatively that it gave inadequate reasons for reaching this conclusion. A particular point made by Mr Bazini is that the Tribunal did not deal specifically with the submission that he made to it that the appellant's dark complexion would have immediately revealed the fact that he was of mixed ethnicity, a submission that was recorded by the Tribunal at paragraph 5 of its determination.
28. On behalf of the Secretary of State, Miss Giovannetti submits that paragraph 172 of the UNHCR assessment must be read in the context of the whole document. The position of Roma is discussed in general terms at paragraphs 146-148. This makes clear that it is the view of the UNHCR that it is difficult to speak in terms of a homogeneous Roma group. Thus although the Egyptians and the Ashkaelia have links with Roma, they are distinguishable from them. At paragraph 165 the report states that at Urosevac/Ferizaj, the Romas are increasingly isolated from the Ashkaelia community: it is expressly stated that it is the Roma who are the targets of reprisal attacks, rather than the Ashkaelia. By contrast, it is to be noted that the report says that in Prizren (paragraph 170) the Roma population is for the most part not subjected to hostility. Miss Giovannetti submits that on a fair reading of the report as a whole, it is clear that there tend to be far fewer problems for persons who speak Albanian and identify themselves as Albanian, or who at least have good links with the Albanian community (see, for example, paragraph 148, from which I have already quoted, and paragraphs 164 and 173). The report must be read as background material to the assessment of the likely risk to this appellant. She points out that he was raised as an ethnic Albanian in a predominantly Albanian village, and that it is clear from his SEF that he considered himself to be an Albanian. He never regarded himself as part of the Roma community.
29. As for the March report, Miss Giovannetti submits that it is not as detailed as the February assessment which considered the situation of minorities area by area. There is nothing in the March report that casts doubt on the earlier assessment. Insofar as the March report contained opinions, for example that persons of mixed ethnic origin should not be returned to Kosovo (paragraph 9), those opinions were not binding on the Tribunal.
30. The failure of the Tribunal to mention and deal with the March report was not an error of law.
31. I have not been persuaded by Mr Bazini's submissions and I prefer those of Miss Giovannetti. It is clear that the main basis of the Tribunal's conclusion was a consideration of the circumstances of this appellant against the background of the situation described in paragraph 172 of the February assessment. It is clear from that report that the risk of persecution in Kosovo faced by persons of part Roma ethnicity varies, inter alia from municipality to municipality. That is why the UNHCR gave separate descriptions of the situations in each municipality. It is true that the situation faced by Roma, as opposed to Egyptians, in Decan was not spelt out in paragraph 172. But in my judgment, the obvious inference is that Roma were not subjected to any problems that were sufficient to merit a mention. I agree with Miss Giovannetti that if the UNHCR had been aware of any difficulties facing Roma in Decan, these would surely have been mentioned in the report. The starting point therefore is that the objective evidence contained in the February assessment was that the experience of persons of mixed ethnicity in Kosovo was not uniform, and that the detailed monitoring indicated that there were no particular problems for Roma in Decan. I accept that it would have been preferable if the Tribunal had dealt in terms with the March report, but for the reasons given by Miss Giovannetti, the contents of that report and the Tribunal's failure to deal with it do not disclose any error of law on the part of the Tribunal. It is true that the March report expresses concerns about the position of persons of mixed ethnicity, but the report is entirely general in nature: it does not purport to say that the situation had changed since the period covered by the February assessment. Moreover, the words "by and large" in paragraph 16 emphasise the general nature of the report. It contains no factual information additional to that in the February assessment which would be helpful in assessing the risk to be faced by someone with the appellant's particular background on return to Decan.
32. Finally, the point about the colour of the appellant's skin. There is no reason to suppose that the Tribunal did not have this well in mind. It was an important part of Mr Bazini's argument then as now and is referred to at paragraph 5 of the Tribunal's determination. But it was no part of the Tribunal's reasoning that this appellant would not face the risk of persecution because his mixed ethnicity would be undetectable. The Tribunal's main reasoning was that the evidence contained in the February assessment enabled it to conclude that the risk of this appellant, despite the fact that he is of part Roma origin, did not pass the requisite threshold. In other words, the colour of the appellant's skin was of no materiality to the reasoning adopted by the Tribunal in reaching its conclusion.
33. I turn therefore to Ground 2.

Ground 2

34. Mr Bazini submits that the Tribunal failed to address the point that the appellant would in the first instance be returned to Pristina (from where he would travel to Decan), and failed to consider whether the appellant would be at risk before he reached Decan. Mr Bazini says that it was the appellant's case before the Tribunal that he was at risk of persecution throughout Kosovo and that this would have included Pristina and the 50 or 60 kilometres over which he would need to travel from Pristina in order to reach Decan. I put it like this because it was not contended before the adjudicator or the Tribunal in terms that Pristina was unsafe, or that the appellant would be at risk of persecution on his journey from Pristina to Decan. Our attention has been drawn to paragraph 149 of the February assessment, which is in this terms:

"In urban Pristina/Prishtine, the residual population remains small and there have been no indications that return of any consequence has taken place. While Albanian speaking Ashkaelia are more numerous among the remaining population, some isolated Roma families have also been reported. Freedom of movement is still a serious problem, especially for those perceived simply on the basis of their appearance to be Roma. Dark skinned Roma and Ashkaelia are particularly at risk and will invariably face problems of verbal intimidation and harassment on the streets of Pristina/Prishtine. One of the Kosovo Albanian leaders addressing the Humanitarian Round Table on April 12th, lamented the fact that Roma, for so long an integral part of Pristina are no longer to be seen going about their business on the city streets. The degree of displacement suffered by both Roma and Ashkaelia from Pristina has been severe with many people currently living as refugees in fYROM or as IDPs in various locations in Montenegro, Serbia and within Kosovo itself."

35. But, although the whole of the February assessment was before the Tribunal, Mr Bazini concedes that he did not draw the Tribunal's attention to paragraph 149 or make any submissions about Pristina or indeed the journey. He submits to us, however, that the Tribunal should have considered the safety of Pristina and the journey from Pristina to Decan of its own motion. It was an obviously relevant and important matter, and the Tribunal was in error in failing to do so.
36. I disagree. It is not at all obvious that a person such as this appellant would be at risk of persecution in Pristina or during the journey from Pristina to Decan. As Miss Giovannetti points out, there was no evidence as to where Pristina airport is, how the appellant would be transported from the airport to Decan, how long the journey would take and so on. In my judgment, if the appellant wished to raise an issue as to the safety of Pristina and/or the journey, it was incumbent on him to do so. It should not be overlooked that the burden of proof on the appeal was on the appellant. In my view, the Tribunal was fully entitled to conclude that he had not discharged it.
37. I should add for completeness that it is common ground that the Tribunal was entitled to rely on the fact that the appellant had not suffered persecution before leaving Kosovo as an additional support for its conclusion. But it is also common ground that since circumstances in Kosovo have changed so fundamentally since 1999, it could be a factor of great weight.
38. For the reasons that I have attempted to give, this appeal should in my view be dismissed.
39. MR JUSTICE PARK: I agree.
Order: Appeal dismissed. No order for costs. Public funding assessment of the Appellant's costs.