IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
|SK, NK, ZM, MM, NT||Claimants|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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MR J LIVINGSTON (instructed by J Andrews, West Harrow, Middlesex, HA1 4EF) appeared on behalf of NT
MR S WILKEN (instructed by the Treasury Solicitor) appeared on behalf of the defendant
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"i. The general finding, that no Croatian Serb is a refugee and no one's human rights are breached in the current situation in Croatia, is nothing more and nothing less than the determination of a hypothetical question the IAT failed to judge the individual circumstances of each appeal against the circumstances of the background situation but instead turned everything on its head and made findings applicable to hypothetical Serbs travelling on a hypothetical Croatian omnibus.
"ii. The Tribunal erred in asking whether this appellant is an exception to the general finding that the hypothetical Serb on the Croatian omnibus is not persecuted and instead should have asked whether the applicant has a well-founded fear of persecution/breach of the European Convention on Human Rights."
That subparagraph refers to a singular applicant or appellant, but the point being made is said to apply, of course, to all five applicants.
"While in our general law this notion of a factual precedent is exotic, in the context of the IAT's responsibilities it seems to us in principle to be benign and practical. Refugee claims vis-à-vis a particular State are inevitably made against a political backdrop, which over a period of time, however long or short, is, if not constant, at any rate identifiable. Of course the impact of the prevailing political reality may vary as between one claimant and another, and it is always the appellate authorities' duty to examine the facts of individual cases. But there is no public interest, nor any legitimate individual interest, in multiple examinations of the state of the backdrop at any particular time. Such revisits give rise to the risk, perhaps the likelihood, of inconsistent results; and the likelihood, perhaps the certainty, of repeated and therefore wasted expenditure of judicial and financial resources upon the same issue and the same evidence."
"As will no doubt be apparent, we are satisfied that there has been no worsening of the situation since we decided S and in any event the material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the European Convention on Human Rights. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused about it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian government, despite the difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection. It follows that we accept the submissions made by Mr Wilken, set out in detail in his skeleton argument and more particularly in Annex 2 to it. Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by a proper control of immigration."
"Despite the hardship that the claimant will undoubtedly suffer resulting from the fighting in his country, he does not show any special circumstances which mean that he can establish that he should be given the benefit of either Convention. For the reasons which we have given, therefore, we take the view that the adjudicator's conclusion was wrong and this appeal must be allowed."
As is evident from that passage, that was an appeal by the Secretary of State.
"The parties were aware that these cases were intended by the tribunal to establish the general position as of the date of hearing and so to enable (subject to any special factors in individual cases or to a deterioration or improvement of the situation in Croatia depending on the tribunal's conclusion) Adjudicators and subsequent tribunals to reach consistent decisions. Thus they have between them endeavoured to and, so far as we are aware, succeeded in putting before us all relevant material."
There then follows a summary of the wealth of material contained, I am told, in five lever arch files, that was put before the tribunal.
"The claimants submit that the issue for the IAT in these appeals is to determine whether the conditions for the safe return with dignity of these Claimants to the areas whence they came has been achieved by the new Government. The claimants submit [then five bullet points are set out] ...
(ii) They have in varying degrees lost homes, jobs family and any sense of belonging to the areas whence they came."
"The Claimants submit that cumulatively there are substantial grounds for believing that if returned the Claimants would suffer intolerable deprivations of civil and political rights. The following factual issues are raised by these appeals."
Then there are a number of headings: accommodation, employment, access to state benefits, acts of intimidation/violence, war crimes prosecutions and police protection.
"The essence of the complaints other than that of MM, is thus the combination of:-
i. discriminatory loss of homes, property and livelihood ...
ii. discriminatory denial of social and economic rights ...
iii. discriminatory denial of judicial assistance in reclaiming homes ...
iv. the loss of present stability and security and the facing of a marginalised and ostracised existence ..."
"In this field opinion evidence will often or usually be very important, since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists. We recognise of course that the IAT will often be faced with testimony which is trivial or repetitive. Plainly it is not only unnecessary but positively undesirable that it should plough through material of that kind on the face of its determination."
"We note but respectfully are unable to accept the view of the court of the importance of opinion evidence. The tribunal is accustomed to being served with reports of experts. We have to say that many have their own points of view which their reports seek to justify. The whole point of the country reports is bring together all relevant material. From them, the tribunal will reach its own conclusions about the situation in the country and then will see whether the facts found in relation to the individual before it establish to the required standard a real risk of persecution or of treatment which breaches his or her human rights. Further, the tribunal builds up its own expertise in relation to the limited number of countries from which asylum seekers come. Naturally, an expert's report can assist, but we do not accept that heavy reliance is or should be placed upon such reports. All will depend on the nature of the report and the particular expert. Furthermore, it is rare for such experts to be called to give evidence or for their views to be tested. We were fortunate in S to have had called before us two experts who were truly knowledgeable and who had no particular axes to grind. We have reports from experts in the present case which we shall of course take into account and we will decide what weight should be accorded to their views."
"No reasonable Tribunal could conclude that this evidence [I will return to that shortly] demonstrated Croatia's 'greater acceptance of the need to show that discrimination is being tackled'."
"The IAT considered 5 lever arch files of material without oral evidence. The IAT's task was to consider that evidence and come to a view. That the IAT did. That there is evidence which may support the Appellants' case cannot be grounds for impugning the IAT's decision."
"18. The IAT also had before them a report compiled for DfiD by Dr Pajic which confirmed the presence of 'clear ethnic bias against non-Croats' which they considered to be 'now somewhat out of date'. In order to justify this conclusion the IAT referred to Croatia's purported greater co-operation with the international Tribunal for the Former Yugoslavia, (ICTY) as indicating 'a recognition of the importance in Croatia of integration into Western Europe'. The IAT's conclusion was flatly contradicted by Misha Glenny and, it is submitted, perverse."
"Secondly, there is the atmosphere of intimidation that is immediately created when potential returnees are told they are not wanted back. The remarkable resurgence in nationalist sentiment occasioned by the Hague Tribunal's issuance of a sealed indictment against General Janko Bobetko, Croatia's Commander-in-Chief, demonstrates fairly clearly how powerful national resentments remain."
"The IAT was wrong to rely, for its conclusion of co-operation, on Croatian President Stipe Mesic's willingness to give evidence against ex-Serb/Yugoslav President Slobodan Milosevic before the ICTY, since this evidence was immaterial to the issue of discrimination against citizens of Serb origin. The only material factor in assessing Croatia's co-operation with ICTY was their failure to arrest and extradite any Croat from Croatia of true Croat ethnic origin. Symptomatic of this failure was Croatia's refusal to hand over General Bobetko (despite an ICTY Appeals Chamber judgment against the Croatian Government) or General Anto Gotovina, another very senior Croat general alleged to have been responsible for ethnically cleansing 250,000 Serbs from Croatia during Operation Storm in 1995. This failure to co-operate is, it is submitted, because of a fear on the Croatian Government's part of 'the resurgence in nationalist sentiment' referred to by Misha Glenny if such an arrests are made."
It seems to me plain that it is for the tribunal to decide for its own part how they are going to deal with the expert evidence and in-country reports before them. These references to General Bobetko and General Gotovina do not to my mind point towards any failure by the IAT to deal with all the evidence that they had. It is instructive to note how it was put in the applicants' reply before the tribunal at paragraph 16:
"R [that is the respondent, the Secretary of State] has not sought to cross examine the claimants' experts: Glenny, Gow or the DfiD expert, Pajic and has not put in material specifically rebutting the factual material on which they relied or the reasonableness of their overall conclusion. The weight to be attached to such experts is for the IAT, but they should not lightly dismiss the opinions of those whose intimate contact with these events and actors make them better suited to give an opinion than advocates or even adjudicators."
"Not surprisingly, greater emphasis has been placed on the human rights claims. While it is recognised that Article 14 is not free standing, it is submitted that discrimination may amount to conduct which is intended to and does arouse in the victim a feeling of fear, anguish or inferiority and so humiliates and degrades him."
"We do not doubt that discrimination on the ground of race is a factor that should be taken into account in deciding whether a breach of Article 3 has been established. It may in some circumstances tip the balance. In Cyprus v Turkey the conditions of the enclaved Greek Cypriots was such as to breach Article 3 and the discrimination on racial grounds was the motive."
ORDER: Permission to appeal refused. Counsel for the claimants to have a detailed assessment for leading counsel's costs of preparing the grounds and skeleton argument.