QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HATI||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR S GRODZINSKI (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Previously rejected applications.
"346. Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:
"(i) is not significant; or
"(ii) is not credible; or
"(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
"... a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion ..."
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"A fresh Claim?
"It was accepted for the applicant that a fresh 'claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it has to satisfy tests, analogous to Ladd v Marshall, of previous unavailability, significance and credibility.
"Stuart-Smith LJ considered this matter in the Manvinder Singh case (unreported), 8th December 1995, where he said (with the agreement of Rose LJ and Sir John Balcombe):
'In my opinion, in deciding whether or not a fresh claim to asylum is made, it is necessary to analyse what are the essential ingredients of a claim to asylum and see whether any of those ingredients have changed. A useful analogy is to consider a cause of action. In order to establish a cause of action a plaintiff must prove certain ingredients. How he proves them is a matter of evidence. If he changes the essential ingredients, he is asserting a different cause of action. What are the essential ingredients of a claim for asylum? First, that the applicant has a well-founded fear of persecution; secondly, that he has that fear in relation to the country from whence he came; thirdly that the source of the persecution is the authorities of that state or, alternatively, some other group or local population where the actions of the group are knowingly tolerated by the authorities, or that the authorities refused or are unable to offer effective protection (see the handbook of the United Nations High Commissioner for Refugees, paragraph 65); finally, that the persecution is by reason of the applicant's race, religion, nationality or membership of a particular social or political group. In my view, it is only if the applicant asserts that one or more of these essential ingredients is different from his earlier claim that it can be said to be a fresh claim.'
"I agree with this passage, and with the propositions accepted by counsel for the applicant. There is danger in any form of words, which can too easily be regarded as a binding formula. In the Manvinder Singh case  Imm AR 41 Carnwath J held that a change in the character of the application was required. I am content with that statement, provided it is not taken to mean that there must necessarily be a change in the nature of the persecution said to be feared. The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."
"In brief, Dyson J held, when there is what is said to be a fresh application, the Secretary of State has to look at the new material, decide whether, if true, it would amount to an application for leave for asylum for a Convention reason, and then to ask himself whether the evidence proffered in support of an application is credible in the sense that there would be a reasonable prospect of its being accepted by the special adjudicator and the claim for asylum made out."
"4.2. After June 1999 when KFOR entered Kosovo the Albanians began an active campaign of discrimination against the Gorani speakers. The appellant claims KLA was also involved in this. The appellant claims his family was constantly in fear. There were threats to kill the family, racist remarks, terrible ill-treatment and harassment of Gorani generally by the Albanians. The claimant claims on one occasion whilst on his way home he was stopped by what appeared like members of the KLA assaulted by them. He claims to have been hit and kicked with the butt of guns.
"4.3. The appellant claims his father reported ill-treatment to the KFOR but no action was taken by them."
"5.2. The UNHCR '9th Assessment of the Situation of Ethnic Minorities in Kosovo' covering the period between September 2001 and April 2002 reports that the Gorani community in Kosovo experiences discriminatory practices and harassment due to the perception by some sectors in the majority population that it maintains close links with the Serb community and shares the same creed. It would appear the Kosovo Police service unjustly impounded vehicle belonging to a Gorani. It is reported that Gorani community faces targeted harassment from some members of the Kosovo police Service. Even the CIPU dated October 2002 makes similar findings.
"5.3. The Albanian community did suffer at the hands of the Serbs. The Gorani are perceived by the Albanians in Kosovo to be linked with the Serbs. Therefore when the Albanians were free to act, that is to say when the Serbs were removed from Kosovo, the Albanians, in my view, mounted a sustained campaign against the Gorani community.
"5.4. I do not know how the appellant's father met with death. The appellant fears it might have been at the hands of the Albanians. Given the previous threats, the general ill-treatment and the lack of protection I can very well understand why the appellant might think that. I accept that this would have given the appellant a well-founded fear of persecution in Kosovo.
"5.5. The appellant gives an account of sustained campaign against his community. The KFOR forces did not assist his father when he complained to them. The objective evidence before me paints a picture which is consistent with the appellant's evidence. The appellant identifies one such incident when members thought to be of the KLA assaulted him. In my view given his general experience of discrimination, father's experience, that of his wider community and the objective evidence the appellant's fundamental rights as identified by Prof Hathaway has been violated. The State has provided no protection for the appellant. Therefore I do find the appellant has been persecuted within the terms of the Refugee Convention and will face persecution should he be returned to Kosovo.
"5.6. In the light of aforementioned findings I do find the appellant's rights under article 3 of the Human Rights Convention will be violated should he be returned to Kosovo."
"9. Even on the background materials to which the Adjudicator makes some reference, the evidence at that stage did not show that generally there was that risk of ill-treatment, albeit plainly there was discrimination by some Kosovan Albanians and no doubt there was some measure of harassment.
"10. Nevertheless, it is very hard to see on the background evidence and the way the claim was being made on the evidence (ie the contents of the SEF statement, the additional statement produced for the purposes of the appeal, the respondent's oral evidence) that, whilst Gorani people have never had a particularly good relationship with Kosovan Albanians, there were no open problems before the war, nor is there a materially different picture now.
"11. Indeed in comments the respondent made he did not claim to be at risk more than any other members of his community.
"12. In these circumstances, we do not see how the Adjudicator could have reached the conclusion from the facts found that there was a real risk on return."
"It is clear that there are practical, economic and commercial problems faced, but we cannot find evidence that there are breaches of fundamental freedoms identified in Hathaway's third category of which the respondent is at risk."
"16. It is plain, reading more broadly than simply the Dragash area, [where the claimant came from] that there is significantly improved confidence in the KPS' impartiality and effectiveness as a police force.
"17. In these circumstances we do not find that the background evidence supports the conclusion that there is either, on return to Pristina or thereafter making his way back to the Prizren/Dragash area, the respondent is at real risk of ill-treatment or persecution for a Convention reason contrary to either the Refugee Convention or the ECHR, nor that there is an absence of sufficient protection.
"18. The same holds true after return and we see nothing on the evidence to support the view that the level of discrimination or difficulties faced, is supported by those controlling Kosovo or that simply they are not taking steps to try and meet what are long-standing and historical differences between ethnic groups in Kosovo. The Country Assessment, paragraph 6.70 to 6.73, presents a similar picture of the Dragash municipality as well as the Prizren region. In those circumstances we do not find that there is any material problem in obtaining housing, in an area which was relatively lightly damaged, access to social services, freedom of movement and the ability to use their own language. There is nothing to indicate that, insofar as they wish to do so, Gorani including the respondent cannot enjoy their cultural heritage without fear or without access to public services.
"19. The appeal is allowed."
"UNHCR's most recent survey on the situation of minorities, issued in March 2003 emphasized the deteriorating security situation of Kosovo Serbs, the lack of follow up by the judiciary and police to acts of aggression directed against them and the impunity if the perpetrators. Severe security incidents in mid-March 2004 led to an escalation of inter-ethnic violence all over Kosovo and brought the province to the brink of full-fledged armed conflict. As a result, 20 people were killed, more than 1,000 were wounded, private and public property including churches and monasteries were systematically destroyed, and more than 4,000 Kosovo Serbs, Ashkaelia, Roma and other minorities were driven from their homes. These incidents are the worst inter-ethnic clashes since 1999. Though the situation has now been brought under control, thanks in large part to the prompt deployment of additional NATO forces, the speed and severity of the incidents underlined the highly volatile situation and the potential for further escalation. The sudden outbreak of violence on such a large scale has shaken the confidence of minority communities and represents a huge set-back in terms of the slow but steady improvements that had been attained over the course of the past five years."
"UNHCR's position remains that members of all minority groups, particularly Serbs, Roma, Ashkaelia, Egyptians should continue to benefit from international protection in countries of asylum. Furthermore the situation of Bosniaks and Goranis has deteriorated following the recent events. Therefore UNHCR recommends temporarily that no Bosniaks and Goranis be returned against their will until the situation can be further assessed. Induced or forced return movements jeopardize the highly delicate ethnic balance and may contribute to increasing the potential for new inter-ethnic clashes."
However, Mr Grodzinski points to the fact that whilst Gorani merit a specific mention in the report it is in the context of a lower level of threat posed to them than of other groups mentioned. The effect, he submits, is precautionary rather than indicative of a direct and substantial risk on return. It is also specifically said to be subject to reassessment. This interpretation of events is confirmed, submits Mr Grodzinski, by a subsequent UNHCR report. This was not submitted to the Secretary of State prior to the challenged decision, but no point is taken on that. Mr Grodzinski relies on the fact that neither the earlier nor the later report suggest any actual persecution of the Goranis.
He submits that the Secretary of State was entitled to rely on significant passages in the UNHCR report of August 2004. These included the following:
"16. The security situation for Kosovo Bosniaks and Goranis has remained stable, with no serious incidents of violence reported."
"A4. Goranis and Bosniaks.
"Whereas Goranis and Bozniaks were not directly targeted, in some locations they felt that as a minority they may come under attack and thus opted for precautionary movements to safer places ... After a few days they had returned to their homes which were undamaged ...
"In other locations, such as Prishtine/Pristina town, close ties with the majority population meant that the security situation of Gorani and Bosniaks did not suffer during the unrest."
"B4. Bosniaks and Gorani.
"The few Bosniaks and Gorani who were displaced during the mid-March unrest have returned to their home communities. Returnees and remainees have resumed the same levels of freedoms they enjoyed prior to the events. Nevertheless and for reasons stated in other parts of this update, it is important to underline the continued and accrued vulnerability of these communities in the event of new violence. Likewise all other ethnic minorities in Kosovo, the Bosniaks and Gorani have now an increased level of fear and their confidence in existing security systems has been subject to the same erosions as other groups."
"It is not accepted that the outbreak of violence in March 2004 would, in itself, be significant enough to meet the criteria for accepting that the fresh claim has been made. There is nothing to show that following the outbreak of violence the political or inter-ethnic situation has changed to such an extent that there is now a real risk of your client being exposed to treatment which would breach Article 3 ECHR or the 1951 Refugee Convention because of his ethnicity. On the facts Mr Hati's case it is considered that your client can return to Pristina. It is considered that your client will be able to return from Pristina to his home area and given effective protection, should he need it."
"The UNHCR report dated 20th July 2004 refers to the '... situation of human rights in Kosovo and metohija'. Mr Sylejman Hati is not a Serb, so the 'security conditions in place for the return of Serbs' is not relevant to him. The comments of Jelena Markovic, Assistant Minister at the Ministry of Human and Minority Rights of Serbia and Montenegro, are quoted by UNHCR as part of their report, but Dr Hudson does not provide any evidence that the opinion of Jelena Markovic is the same as the opinion of UNHCR. In the absence of such evidence the opinion of Jelena Markovic must be considered in the context of her standpoint as part of the authorities of Serbia and Montenegro which are different from KFOR and UNMIK. Accordingly this material has been disregarded in reaching this decision.
"With regard to the other points you have raised, it is concluded that the claim advanced is not sufficiently different from the earlier claim to admit of a realistic prospect that the conditions set out in paragraph 334 will be satisfied.
"Accordingly, we have decided not to treat your client's representations as a fresh application for asylum."