England and Wales Court of Appeal (Civil Division) Decisions

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

		The Royal Courts of Justice The Strand London Friday 26 April 2002

Friday 26 April 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Immigration Appeal Tribunal dated 12 December 2001. The Tribunal allowed an appeal from a decision of an adjudicator who had made a finding in favour of Mr Bukurosh Haka, who had applied for asylum in this country and whose application had been rejected by the Secretary of State.
2. The applicant is 23 years old. He is of Roma ethnicity and left Kosovo in March 1999. He arrived in this country in February 2000. He claimed that he was in fear of persecution by reason of his mixed Albanian and Roma ethnicity.
3. The IAT, it is conceded, were entitled to make their own assessment of the evidence as to the risk of persecution upon a return to Kosovo. They did so in a detailed, comprehensive manner, and in a manner which I find entirely persuasive. Miss Maciel, on behalf of the applicant, submits that the Tribunal should not have reversed the decision of the adjudicator who had considered the evidence.
4. The Tribunal attached importance to an OSCE report dated August 2001 which had not been before the adjudicator. The adjudicator had regard to a March 2001 report of the UNHCR. Miss Maciel submits that the reasoning of the Tribunal in relation to the two reports is unsatisfactory, and I refer to the specific points which she has raised orally this morning. One is that the Tribunal have approached the case on the basis that the applicant is a Roma, whereas he is of mixed origin, and it is the mixed origin which the UNHCR report considers the relevant consideration.
5. I reject that submission. It is clear that the Tribunal have had regard to the mixed ethnicity. In paragraph 7 they consider cases which are mixed ethnicity cases, although distinguishable on the facts, and in paragraph 18, where their essential reasoning is contained, they expressly state:

"We accept that there is discrimination against those of mixed ethnicity."

6. They plainly had the correct factual situation in mind. They nevertheless went on in paragraph 18 to conclude that there was no reasonable likelihood of the applicant being subjected to persecutory treatment in respect of which protection would not be available in that part of Kosovo to which he would return. They attach importance, as they were entitled to, to the "municipal profile of the Gjakove-Davokica area" which is considered, I understand, in the OSCE report. (The report itself is not in the bundle, but it is not suggested that the references to it in the Tribunal decision are other than accurate.)
7. It is submitted that the Tribunal had an essential fact wrong in that they stated there was no evidence of previous persecution of the applicant when it is claimed that the adjudicator has found that there was such evidence. That submission does not stand up to examination because in paragraph 21 of his decision (page 21 of the bundle) all the adjudicator refers to is "the problems of living as a mixed family in a street where they were the only family of mixed ethnicity." There is no finding by the adjudicator of earlier persecution. Thus the Tribunal were entitled to conclude, as they did at paragraph 17, that "There is no history of this respondent or his family having been subjected to any persecutory treatment by reason of the fact that his father was Roma and his mother Albanian."
8. It appears to me that the Tribunal have paid adequate respect to the decision and reasoning of the adjudicator. They had available to them a detailed and up-to-date report of conditions in Kosovo which referred to the locality in question and to the recent developments. In my judgment they were entitled to reach the conclusion they did. It is not arguable that they have erred in law in their approach to the evidence or in any other way. I would refuse permission on that ground.
9. The second ground is that the Tribunal have not adequately considered the Article 8 application. Article 8.1 of the ECHR provides "everyone has a right to respect for his family and private life, his home and his correspondence." It is submitted that the Tribunal have arguably erred in law in their approach to that question. The reasoning is at paragraph 20. Miss Maciel also referred to a letter from the Social Worker (Asylum Seekers and Unaccompanied Minors) of the Cardiff City Council, dated 16 March 2001.
10. I have come to the conclusion that permission should be granted on that ground. The reasons emerge from a consideration of paragraph 20 of the decision. It is submitted that the Tribunal erred in making the comparison they do between family life in Kosovo and family life in the United Kingdom because the comparison is irrelevant and inaccurate.
11. The relationship relied on is that of first cousins. The applicant and a cousin now 16 years old are living in a house in Cardiff and the young cousin is the responsibility of the Cardiff City Council. However, as the Tribunal recognise, the applicant is "a surrogate to the social services department." The Tribunal's conclusion in the central part of the paragraph has force:

"We cannot see that the circumstances of these two young men can amount to family life being interrupted were the respondent to be returned to Kosovo now."

12. If sufficiently reasoned and justified, that may well be a sound conclusion. But the Tribunal go on to deal with the relationship and the comparison in a way which arguably is defective and fails to confront what was the issue before the IAT.
13. The applicant should not have high hopes. The relationship is that of first cousin and not one of the closer relationships normally relied on. However, there is material in the letter of 16 March 2001 which, in the light of the content of paragraph 20, does provide an arguable case that the IAT have not sufficiently considered the Article 8 aspect of the appeal to them.
14. For those reasons and on that ground alone I would grant permission.
15. LORD JUSTICE CLARKE: I agree. The OSCE report was not before the adjudicator because the adjudicator's report was disseminated on 24 July 2001, the day after the hearing, whereas the OSCE report is dated August 2001. In these circumstances the IAT were entitled to reach conclusions based on the OSCE report, which was the most recent report in relation to the position in the relevant geographical area. In all the circumstances, we cannot say that the IAT was or might have been in error in this regard, especially since we have not seen the report. In these circumstances, I agree that the application should be refused on the first ground for the reasons given by Lord Justice Pill.
16. As to the second ground, I agree that permission to appeal should be given for the reasons given by my Lord.
ORDER: Application for extension of time allowed. Application for permission to appeal allowed on the ground of Article 8 only. (Order not part of approved judgment)