United Kingdom Asylum and Immigration Tribunal

BK v Secretary of State for the Home Department (Yugoslavia) [2002] UKIAT 01TH02140

CC-22108-00

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 19 June 2001

Date Determination notified: 30 August 2001

Before
Mr. K Drabu (Chair) Mr. A G Jeevanjee Mr. M G Taylor CBE
Between

 

BK	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

Mr B Halligan of Counsel instructed by Lawrence Lupin, solicitors for the appellant Miss J Jeffrey for the respondent
DETERMINATION AND REASONS
1. The appellant is a twenty three year old young man from Yugoslavia of Albanian ethnicity, who before entering the United Kingdom on 27 November 1998 was living in Kosovo. He sought asylum in the United Kingdom on the grounds that he feared persecution in Kosovo because of his past experiences with the Serbs, the perception of the KLA that as a journalist he had been passing information on them to the Serbs and his sexuality since he is a homosexual. His application for asylum was refused and a decision was made on 23 August 2000 to give directions for his removal from the United Kingdom. He appealed. His appeal was heard by an Adjudicator (Mr. Jonathan Perkins) on 3 January 2001 and the written determination setting out the reasons for the dismissal of the appeal was promulgated on 8 March 2001. The appellant sought leave to appeal to the Tribunal on 20 March and the application was granted by the Tribunal (Mrs. D J Drew, Vice President) on 9 May 2001.
2. The grounds of appeal before the Tribunal ere that the Adjudicator erred in rejecting the appellant's evidence that he is a homosexual and that the Adjudicator should have gone on to consider whether as a homosexual, the appellant would be at risk on removal to Kosovo. In granting leave to appeal the Tribunal said,

"The Adjudicator did not find the Appellant's assertion that he was a homosexual to be credible on the basis of the timing in which that information was put forward as a basis for the Appellant's fears. The Adjudicator noted however that such an allegation is easy to make and impossible to disprove. On that basis it is arguable that the Adjudicator should have considered this issue in more depth and the Appellant will be expected to put before the Tribunal evidence upon which he bases his fear of persecution in the event that the Tribunal are minded to accept is assertion that he is indeed a homosexual and has fears of returning to Kosovo for that reason."

4. When we heard this appeal, Mr Halligan asked for leave to amend his grounds to include the assertion that the appellant is a person with special protection needs and is covered by the UNHCR Guidelines of March 2001 in this respect. Although leave to put in this further ground was sought so very late in the day and without any notice to the respondent, we felt it appropriate to grant it with clear directions that the respondent's representative will have the liberty to address any additional evidence or argument arising from this amendment until two weeks after the conclusion of the hearing and that Miss Jeffery will be free to put in any documentary evidence which she felt was appropriate to meet the new ground. We directed that Miss Jeffery would initially send these arguments/documents to the appellant's representative within two weeks with copies in triplicate to the Tribunal at the same time and that the appellant's representative would then have a week to respond, if he so wished, to the arguments/documents. We made it clear that if we did not receive anything from Mr Halligan a week after receipt from Miss Jeffery, we would assume that he had nothing further to say and we would proceed to determine the appeal. In the event we received a letter dated 3 July from Miss Jeffery attaching the current CIPU brief.
5. On the issue upon which the Tribunal had granted leave to appeal - homosexuality and the risk it might expose the appellant to in Kosovo if it were accepted that he is indeed a homosexual, Mr Halligan said that he had been unable to find any evidence which would assist his client in this matter. He said that the Adjudicator was wrong in not accepting that the appellant is a homosexual and the whole basis of his disbelief was the timing of the claim of homosexuality. According to Mr. Halligan the timing was of no consequence since the issue had been of no significance when he arrived in the United Kingdom. The sexuality of the appellant had assumed importance since his stay in the UK and because he has been in a relationship here which has now ended. He said that although he has been unable to find evidence of homophobia in Kosovo we should assume that in an Islamic society there would be open and deep hostility towards homosexuals. Mr Halligan said that Kosovo is a rural and conservative society and that we should take judicial notice that in such societies bigotry exists. He drew our attention to the report put in by the respondent from Kosovo Information Project. Mr Halligan argued that the report suggested that there is no sufficiency of protection for homosexuals in Kosovo because there is no tracking system for any complaints in this regard. Mr Halligan said that in evaluating the risks that the appellant is likely to face on return we should bear in mind that the Kosovan society is a brutalized society where military hardware is not hard to come by. Mr Halligan then addressed us on the special protection needs of the appellant. He said that the appellant according to the medical evidence suffers from Post Traumatic Disorder. Mr Halligan argued that he would therefore be covered under paragraph 12 of the UNHCR paper of March 2001.
6. Miss Jeffery in response argued that the appellant had failed to produce any evidence to support his claim that as a homosexual he faces a real risk of persecution if he is removed on Kosovo. Miss Jeffery submitted that the Adjudicator's disbelief in the claimed homosexuality of the appellant was perfectly valid and justified. She pointed out that the medical report on the appellant makes no mention about the homosexuality of the appellant. Miss Jeffery reminded us that even if we were to accept that the appellant is a homosexual, we would still have to dismiss the appeal because there was no evidence before us to establish that homosexuals are persecuted in Kosovo. She submitted that it is possible that homophobia exists in Kosovo as it does in certain sections of the society in this country but no evidence had been produced before the Tribunal to prove that the manifestation of homophobia in Kosovo was of such a nature and degree as to amount to persecution. She argued that Mr Halligan's reading of the Kosovo Information Project was misconceived and inaccurate. The report clearly said "there are no specific cases or high profile cases recorded where homosexuals were the victims of violent crime." She asked that we dismiss this appeal.
7. Bearing in mind that leave to appeal was sought and granted solely on the issue of the appellant's homosexuality but having allowed Mr Halligan to add the ground that the appellant has special protection needs as a traumatized individual, we have given anxious consideration to all the relevant evidence. We have reminded ourselves that the Adjudicator in this case heard oral evidence and he made findings of fact, none of which have been challenged by the appellant, except the finding on his claim to be a homosexual and the likely consequences of that on his removal to Kosovo.
8. In this case the Adjudicator accepted that the appellant had in the past been arrested and ill treated and indeed sentenced in his absence to a period of one and a half years imprisonment. The Adjudicator went on to say that the appellant "no longer has any cause to fear the Serbian regime as it has lost control and there is no reason to think that will change." The Adjudicator did "not accept that this appellant has anything to fear from the KLA because I do not believe his account of being suspected of spying for the Serbs." This finding was never challenged either in the written grounds of appeal or in the oral arguments before us.
9. In the light of the amendment that we allowed to the grounds of appeal, we have looked very carefully at the medical evidence and other evidence going to the general well being of the appellant. We note that the Adjudicator gave sympathetic consideration to the report from Dr Seer's. We share his conclusion that there is no real likelihood that the mental health of the appellant would be at risk simply because he would have to live in Kosovo. Of course life in Kosovo will be hard but we do not believe that on the evidence before us we can say that he has special protection needs - such as those set out in paragraph 12 of the UNHCR paper. The Adjudicator who had the benefit of seeing the appellant during the hearing before him did not find him demonstrably traumatized by his experiences in Kosovo. We have taken due note of 5.12 of the CIPU brief on Kosovo (page 29) which deals with health services. We accept the point made by Miss Jeffery that the medical evidence relating to the Appellant's condition does not establish severe or chronic mental illness or other condition requiring treatment beyond current resources in Kosovo. We are not persuaded that the appellant's belated claim to be a person with special protection needs has any merit at all.
10. With regard to the appellant's claim to be a homosexual, we do not see any good reason to disturb the finding made by the Adjudicator. No evidence has been produced to us to establish that the Adjudicator was wrong in making that finding. However, even if we were to accept that the appellant is a homosexual and therefore a member of a particular social group, we would still dismiss this appeal as we have seen no evidence that as a homosexual the appellant will be at real risk of persecution on removal to Kosovo. This appeal is dismissed.

K Drabu
Vice President