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 HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Burton)

		Royal Courts of Justice Strand London WC2 Thursday 13th June, 2002

1. LORD JUSTICE ALDOUS: I invite Lady Justice Hale to give the first judgment.
2. LADY JUSTICE HALE: This is a renewed application for permission to appeal against the order of Burton J made on 18th January 2002 in the Administrative Court, refusing the applicant permission to make a claim for judicial review against the Immigration Appeal Tribunal. On 15th June 2001 the Tribunal had refused him permission to appeal against the decision of an adjudicator dismissing his appeal against the refusal of his claim for asylum. The applicant also seeks permission to rely on fresh evidence.
3. He arrived here with his wife on 16th November 2000. He claimed asylum when he was picked up by the police. The basis of his claim was that he was a Kosovan of Roma ethnicity who feared persecution on account of that ethnicity. He was interviewed on 5th January 2001 and his claim refused on 11th January. His appeal was heard by the adjudicator, Mr Lawrence, on 25th April and the determination promulgated on 10th May 2001.
4. The adjudicator rejected the Home Office's argument that all Kosovans would be adequately protected by KFOR. This was not reported by the UNHCR/OSCE report dated March 2001 covering the situation of ethnic minorities in Kosovo over the period October 2000 through February 2001. However, in the adjudicator's view the main question was:

"... whether this appellant is indeed a Roma gypsy from an area of Kosovo in which he has suffered persecution in the past and is likely to suffer persecution for his ethnicity if he is now returned to his area of Kosovo." (paragraph 41)

The adjudicator found that the appellant lacked credibility in the main areas of his evidence, including where he came from and the circumstances in which he had left. He observed:

"It is difficult because of the inconsistencies in his evidence to say which part of Kosovo the appellant comes from. The evidence does however point to the fact that he comes from the part of Kosovo which is not populated by ethnic Albanians or has a small minority of Albanians. In this case his fear that he will be persecuted by the Albanians if he is returned to Kosovo is not well-founded. I am not satisfied to the appropriate standard of proof that KFOR will not be able to provide him with sufficient protection in his part of North Mitrovica against the Kosovans who are in the minority in the area."

He also, for similar reasons, rejected the appeal based on human rights.

5. The grounds of appeal to the Immigration Appeal Tribunal, dated 25th May 2001, were three: first, a failure properly to consider the background material; second, unreasonableness in finding that there would be effective state protection; third, undue reliance on the adjudicator's view of the appellant's credibility. The Tribunal refused permission. The reason given was:

"The grounds of appeal ignore the fact that the adjudicator has found that there is more than a reasonable likelihood that the applicant was from an area of Kosovo where the Roma form a substantial ethnic population and is therefore unlikely to be persecuted by Albanians. His findings have taken into account the background information, and are valid."

The grounds for seeking judicial review of that decision were summed up in four propositions by Burton J: first, that the Tribunal failed to consider the safety of the journey from the airport to the alleged safe home area; second, that it was unreasonable (in the Wednesbury sense) to find that it was a safe haven any way, bearing in mind the background material; third, that it was wrong to conclude that the only risk feared came from Kosovan Albanians, and thus the adjudicator failed to consider the risk from the Kosovan Serbs and of discrimination; fourth, there was a challenge to the adjudicator's findings on credibility.

6. Not surprisingly, Burton J had no difficulty in rejecting the fourth of these grounds. As to the third, he found that the case being put forward by the claimant was based on fear of Albanian people. His references to the Serbs related to before and during the war and his reasons for leaving, and hence for his fears on return, related to the Albanian people. Mr Grieves, who has presented this application before us with great skill and economy, sought originally to challenge that on the basis of the claimant's statement. In that statement he had indeed said that he feared the Serb authorities. But the statement draws a clear distinction between the Kosovan people, by which he means Albanian people, and the Serb authorities. His fears relate to what might happen should the nature of the regime change yet again in Kosovo. Mr Grieves therefore accepts that that was not his best point.
7. Burton J said that discrimination was part of grounds one and two. As to ground two, he rejected the argument that the adjudicator should not have found a safe haven without a more particular rejection of the background evidence or geographical determination of the boundaries of the area. The problem in his view was that there was no real dispute about it. The claimant himself had said in interview that he came from an area of Mitrovica in which gypsies were in the vast majority (paragraph 8); in his oral evidence that his area was completely populated by Roma, but there were some Serbs in the town (paragraph 27); in cross-examination that he came from the north of Mitrovica, from an area mostly populated by gypsies with a few Serbs (paragraph 43). The adjudicator was entitled to rely on the claimant's own evidence about this.
8. The first point about the journey did give him pause, because:

"It is plain that in order for there to be a sensible safe haven the claimant has to be in a position to reach there."

This was a point which had not been taken before the adjudicator or the Tribunal and so it could only succeed if it passed the test stated by the Master of the Rolls, Lord Woolf, in the case of R v Secretary of State for the Home Department ex p Robinson [1997] 4 All ER 210, in particular at paragraph 39:

"... if when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do."

The role of the Administrative Court in considering whether to grant judicial review is obviously that of considering whether the Tribunal is arguably in breach of that duty.

9. Burton J concluded that had the point been raised it would have made no difference. The safe area was 25 kilometres from Pristina. There had been example of attacks on buses by Albanian extremists, so it might have been arguable that the claimant might have been one of the rare people attacked in this way. But if it had been raised before the adjudicator he would not have changed his view.
10. In seeking permission to appeal to this court, Mr Grieves has relied on two main arguments. The first relates to whether there is a strong prospect of success in arguing that the claimant would be at risk of persecution during his journey home. For this he relies on the evidence which was before the Tribunal in the UNHCR/OSCE report of March 2001, which they did have, which refers to attacks on means of transport and goes so far as to say that:

"Ongoing security threats to minority groups continue to preclude the possibility of promotion of return at this stage. Kosovo Serbs and RAE [which include Roma] are at particular risk and should not under any circumstances be deported by asylum states."

Mr Grieves points out that that is a very strong statement and should lead to the conclusion that the transit argument has a strong prospect of success. He also draws support from the decision of the Tribunal in the case of Hazrizaj (01 THO 1382, 18th June 2001). This concerned travel from Pristina to Montenegro on the basis that Montenegro would provide a safe haven for the family. The Tribunal reached the conclusion that it would be unduly harsh to expect relocation from Kosovo to Montenegro in the particular circumstances. That is, of course, applying the unduly harsh test to the question of relocation. This is not a relocation case. It is simply a case about how to get home.

11. Keene LJ, when he refused permission to appeal on paper, dealt with this point by saying that, in view of the very limited evidence of attacks on Roma when travelling in the relevant part of Kosovo, the risk was not sufficiently obvious to pass the Robinson test.
12. Mr Grieves has sought to rely on a more recent UNHCR/OSCE assessment of the situation of ethnic minorities in Kosovo covering March 2001 through August 2001, which is dated September 2001. This does not say anything new in general terms, but it does highlight the mobility problems and gives more geographical detail corroborating the risk to Roma in Pristina. But, in my judgment, that additional evidence does not point so strongly to a risk on a single journey from Pristina to Mitrovica to lead one to the conclusion that there is a strong case which ought to have gone before the Tribunal. I would not give permission to appeal on that ground.
13. The more recent material also discusses a matter in more detail which gives rise to the second of the points put forward by Mr Grieves. This relates to the conditions within the safe haven. He points out that if certain minorities are only safe in a very small area and are afraid to venture outside that small area, that in itself is sufficient to raise a well-founded fear of persecution and the adjudicator should have considered it.
14. The difficulty with this - as was pointed out by Burton J - was the adjudicator's findings of fact as to the nature of the area in which the claimant lived, all of which were based on the claimant's own evidence. It may well be that had the case for him been presented in a different way, his evidence would have been seen in a different light. If an explanation had been put before the adjudicator, which does exist in the papers now before us and could have been put before him, of the circumstances in which the Roma came to be concentrated in North Mitrovica, who can say what his approach to that evidence would be. However, this is an issue of fact. We are not here to review the adjudicator's factual findings. Keene LJ, in refusing permission to appeal, said that the adjudicator was entitled to conclude that the claimant was not reasonably likely to be persecuted in that area, and also to place emphasis on his past treatment and the adjudicator's conclusions about that as an indication of the future.
15. We do have to remember that this is an application for permission to make a claim for a judicial review of the Tribunal's decision. The Robinson case is simply pointing out that the Tribunal has to take obvious points even if the appellant has not done so; otherwise, the Tribunal may be susceptible to judicial review. But judicial review is not retrying the case. In those circumstances, and for the reasons I have sought to explain, an appeal in this case would not have a real prospect of success and so I would refuse permission.
16. LORD JUSTICE ALDOUS: 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)