England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		No CO 5220/2001 Royal Courts of Justice Strand London WC2A 2LL
		18th July 2002

1. The Claimant is a Muslim ethnic Albanian and a citizen of the Federal Republic of Yugoslavia (“FRY”). He applied for asylum in the United Kingdom on the grounds that he had a well-founded fear of persecution in FRY.
2. In a letter dated 21 March 2001, the Secretary of State refused the application. So far as material, the letter stated:

“3. You say that ... the Serbs forced you to flee. You state that you lived in ... Mitrovica, Kosovo. You say that you went with your family to Albania after your house was burned down by Serbs in Spring 1999. You stayed in tents in Kukes for about six months before returning to Mitrovica around September 1999. Your father decided that the situation in Mitrovica was too unsafe for you to remain there. You also felt to be under a threat of attack from Serb civilians. Some of your friends had been attacked and beaten. Your father paid DM 5,000 to secure your departure for the United Kingdom with the assistance of an agent. The rest of your family remained in Mitrovica where they live now with a cousin. ... You claim to have made a clandestine entry to the UK on 11 May 2000. You applied for asylum on 16 May 2000.

7. (The Secretary of State) is ... satisfied that the risk of persecution to the ethnic Albanian majority by the authorities of the Federal Republic of Yugoslavia has been removed with the establishment in Kosovo of an international peace-keeping force, KFOR ...

8. The Secretary of State would point out, moreover, that he takes the view that the general Serbian population of Mitrovica cannot be regarded as “agents of persecution” within the terms of the 1951 United Nations Convention relating to the Status of Refugees.

12. .... The Secretary of State considers that as you are a single man of eighteen years, and in good health, it would not be unduly harsh to expect you to relocate to one of the many municipalities where very few Serbs are present.”

3. The Claimant appealed to the Adjudicator. Only then did the Claimant admit that prior to his departure from Kosovo for the United Kingdom he had been living in a place in Kosovo other than Mitrovica. In a witness statement made on 9 February 2001 he said that after leaving Albania

“6. We went back to Kosovo in around September 1999. We lived at my cousin’s (Isen Ismaili) house, between September 1999 and when I left Kosovo for the second time...

7. In my first statement I said that we went back to Mitrovica after Albania. This was not correct but the reason I said it was because I didn’t know where my cousin lived so I thought it would be easier to explain. I was worried about explaining it. I am now very sorry that I did not tell the truth. Everything else that I have said is true.

9. When I left Kosovo the rest of my family was still at my cousin’s house.

19. ... I couldn’t go back to my cousin’s, even if it was safe, because I don’t know where it is.”

4. The Adjudicator found that the Claimant had not demonstrated a well-founded fear of persecution in the area of Kosovo from which he had fled. At paragraph 45 of the decision the Adjudicator said:

“I heard evidence from the Appellant. The Appellant’s account was, in the main, consistent with his most recent statement except he declared that when he returned to Kosovo with his family in September 1999 it was not to Mitrovica. His evidence on the situation there, with enormous violence and Serb troops in military uniform did not accord with the background evidence on Kosovo which describes FRY troops having withdrawn from Kosovo in June-July 1999. The Appellant is certain that he did not know where this place was, although his evidence was that he remained there for eight months, in the home of his cousin which had other families living there as well. I do not accept the Appellant’s evidence that he did not know where he was in Kosovo during such a long period of time, amongst his family who all spoke the language. I concluded that the reason for this was that he did not want to be returned to that area. It was his father who arranged to have him put on the lorry from that place and knows where his family lives. He therefore has a family to return to in Kosovo. He does not fall into an at-risk category of young people alone if returned, nor does he fall into any of the other at-risk categories set out in the UNHCR report on returns of ethnic Albanians to Kosovo of March (2001). He has not therefore discharged the burden of proof upon him of a well-founded fear of persecution for a Geneva Convention reason.”

5. The Immigration Appeal Tribunal refused leave to appeal the determination of the Adjudicator. At paragraph 3 of the decision the Tribunal said:

“We can find no arguable merit in the grounds of appeal. On the evidence the Adjudicator’s conclusions were open to her. Whilst the Applicant’s home might have been in Mitrovica, or even North Mitrovica his family had moved to another area, where they had lived for at least eight months before the Applicant left Kosovo to travel to the United Kingdom. This was his new home, where his family lived, and he could return there without risk. In the circumstances the question of internal flight did not arise.”

At paragraph 2 of the decision the Tribunal noted that the Claimant “had family in Kosovo, not in North Mitrovica, or in any area where there was a substantial Serb population”.

6. The claimant now seeks judicial review of this decision, permission having been granted by Munby J.
7. The issue in this case is whether or not the Tribunal erred in its finding that the relevant place for the purpose of considering whether the Claimant had a well-founded fear of persecution was not Mitrovica, but the area in Kosovo where he had been living prior to his departure for the United Kingdom.
8. Mr Waheed, for the Claimant, submitted that the place from which the Claimant left Kosovo was relevant for the purposes of considering an “internal flight alternative”, but not for the purposes of assessing a well-founded fear of persecution. For the latter it was the Claimant’s home town of Mitrovica. Miss Stern, for the Respondent, submitted that the question of internal flight did not arise on the basis that the relevant place to consider the risk of return was the place in Kosovo where the Claimant had been living with his family for some eight months prior to his departure from Kosovo.
9. Article 1(A)(2) of the Convention (Cmd. 9171), as amended by the New York Protocol of 31 January 1967 (Cmnd. 3906), provides that the term “refugee” shall apply to any person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

In the present case it is useful to start, as did Dyson J in Vallaj v Special Adjudicator (Case No: CO/2738/2000, 21 December 2000), by considering what the internal flight alternative actually is. He said:

“64. ... The fear of persecution need not always extend to the whole territory of the refugee’s country of nationality. Persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country. if in all these circumstances it would not have been reasonable to expect him to do so: see paragraph 91 of the UNHCR Handbook. The issue of internal flight alternative was considered by the Court of Appeal in R v SSHD ex p Robertson (1998) QB 929. They held that it would be reasonable for a person who feared persecution in one part of his country to relocate to a different part of the country unless it would be unduly harsh to expect him to do so.

65. But the question of the internal flight alternative only arises if the applicant has a well-founded fear of persecution in the part of the country from which he has fled. It is only in that situation that consideration may be given to the possibility that there is a different part of the same country to which it would not be unduly harsh to expect the claimant to relocate. This is implicit in the very concept of an internal flight alternative and of relocation. The different part of the country is an alternative to the part from which the claimant has fled, and to which he or she may be relocated. This is also clearly spelt out in the passage cited with approval in Robertson of the majority judgment of the Federal Court of Australia in the Randhawa case, 124 ALR 125:

‘If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to the country as a whole is well-founded.’ ”

The reasoning of Dyson J was approved by Simon Brown LJ delivering the judgment of the Court of Appeal in Canaj and Vallaj v Special Adjudicator (2001) EWCA Civ 782 (at paragraphs 21-33).

10. Miss Stern submitted that the approach adopted by the Adjudicator and the Tribunal in the present case was consistent with this reasoning. She submitted that if the Claimant has already relocated within Kosovo, together with his family, and has lived in that place for a substantial period of time, then it would be both illogical and confusing to test the safety of return by reference to the place first, in which the Claimant was not living at the time of his departure, and second, to which there appears to be no realistic prospect of the Claimant returning. Mr Waheed, for his part, submits that the circumstances in which the Claimant found himself at his cousin’s house did not make that place “a new home” from which to assess a fear of persecution.
11. In support of this submission Mr Waheed referred me to the decision in Phako v Secretary of State for the Home Department (HX/51653/2001, 5 March 2002). However, in my view it provides little assistance to the Claimant. The facts of the case are very different from the present case. The appellant was a Bosnian citizen who was born and lived in an Eastern Bosnian town called Vlasenica, which became part of the Serbian Republic of Srpska. In the summer of 1992 he and his family found temporary refuge in the town of Tuzla which was under Bosnian control. Some years later he left Tuzla to come with his family to the United Kingdom. In Tuzla the appellant had the status of a displaced person and as such could not obtain a permanent job or accommodation. He had lost his home and he had a daughter afflicted by a serious medical condition who was in need of care. Moreover the Adjudicator took the view that whilst it was probable that the appellant would not be subject to persecution, he nevertheless faced a real risk of persecution should he be returned.
12. Miss Stern submits that the decision maker should apply a common sense and practical approach when determining the place from which an individual fled. In that regard she makes three submissions. First, that the degree to which a claimant can be regarded as settled or as having a home in the last place he lived before leaving his country of origin will be a significant factor in determining what should as a matter of fact be regarded as the place from which he fled. Second, if the claimant’s presence in that place can sensibly be regarded as part of the process of fleeing his country of origin then it may well not be regarded as the place from which he fled. Third, if, however, a claimant was settled and has connections with the place he lived in before leaving his country it would be academic and artificial to test the well founded fear of persecution from elsewhere. I accept these submissions.
13. In my judgment there was plainly evidence before the Tribunal from which they could reasonably conclude that the relevant place to consider the risk of return was the place in Kosovo where the Claimant had been living with his family prior to his departure for the United Kingdom. The evidence, in summary, was as follows:

(i) First, that when the Claimant and his family had returned to Kosovo from Albania in 1999 they had returned to his cousin’s home in a place in Kosovo other than Mitrovica;

(ii) Second, the Claimant had lived with his family at his cousin’s house for eight months before leaving Kosovo to come to the United Kingdom;

(iii) Third, his father had arranged to have him put onto a lorry to come to England from his cousin’s home;

(iv) Fourth, he knows where his family is living in Kosovo and has a family to return to in Kosovo;

(v) Fifth, he could return and live there without risk; and

(vi) Sixth, he has no family in Mitrovica.

14. In the result, I reject the grounds of challenge. Accordingly this application is dismissed.
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THE DEPUTY JUDGE: I give judgment in accordance with the document handed down.

MR WAHEED: I am grateful, my Lord. My Lord, might I ask for leave to appeal in this matter?

THE DEPUTY JUDGE: On what basis?

MR WAHEED: I would say it is a novel point. It is the first time it has been raised in respect of this aspect of refugee law, that is where to determine the internal flight alternative. It may be a point that may require further consideration by the Court of Appeal, notwithstanding my Lord's considered and welcomed judgment on this matter.

THE DEPUTY JUDGE: Miss Stern?

MISS STERN: My Lord, we oppose the grant of leave to appeal. We say it is really a question of fact and degree and, for the reasons set out in your Lordship's judgment, there is simply no real prospect of success.

THE DEPUTY JUDGE: Mr Waheed, you will have to go to the Court of Appeal if you wish to pursue the matter. Thank you.

MISS STERN: My Lord, that just leaves the matter of costs. My Lord, we would just ask for our costs on what I always call the "footballs order", I am afraid I do not know the precise terms.

THE DEPUTY JUDGE: I think we understand the phrase.

MISS STERN: On that basis we ask for our costs.

MR WAHEED: My Lord, I cannot resist that. My understanding is that it is not to be enforced without leave of the court, if that is correct?

THE DEPUTY JUDGE: Yes.

MR WAHEED: My Lord, there is also an application for an assessment of the claimant's Community Legal Services certificate, the claimant is publicly funded by such in this matter.

THE DEPUTY JUDGE: Is the certificate lodged with the court?

MR WAHEED: My Lord, it is.

THE DEPUTY JUDGE: I make those two orders: costs not to be enforced without the leave of the court and assessment of the claimant's costs. Thank you both very much.