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Cite as: [2002] UKIAT 1086, [2002] UKIAT 01086

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AH (IAF, Jewish Activist, Bucharest) Romania [2002] UKIAT 01086

HX13838-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 January 2002

Date Determination notified: 11 April 2002

Before

Mr R G Care (Chairman)

Mr J B Wilson

Mr G Brown JP

Between

AH	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

The appellant is a citizen of Romania and obtained leave to appeal from the determination of Mrs J N Reid in which she dismissed the appellant's claims to asylum and under the Human Rights Act on 2 November 2001.

Representation

The appellant was represented by Mr.Taghavi of Counsel instructed by D J Webb and Co Solicitors and the respondent by Mr. Harper.

Decision

The appeal is dismissed.

The Appeal

Miss Haussmann is now aged 31 and arrived in the UK on 21 April 2000. She lived in Cluj in Romania where she was born and worked there for the local Council as an accountant. She is Jewish from a wealthy family. The adjudicator believed her story so we can relate the salient facts from the evidence.

There are two issues argued by Mr Taghavi, first, given that Miss Haussmann had been persecuted could she not obtain protection if she went to live somewhere else in Romania? Second whatever may happen is it likely to come up that level of seriousness which amounts to persecution? It is not argued that the persecution was levelled against the appellant simply by being a Jewish but that her stand against the xenophobic attitudes she says obtain in Romania was regarded as amounting to political opinion.

In summary Miss Haussmann's evidence is that she eventually lost her job with the council in Cluj, that she make an enemy of the Mayor by her persistent and determined attacks on the discrimination against Jews, that she had been threatened and abused verbally and physically attacked. She had reported to the police but had been unable to persuade them to investigate the incidents or make an effort to protect her, let alone give some sympathetic attention. She had also written to the Minister in Bucharest but without response.

She says she tried to move to another town but the situation would be the same she was told. She claims she cannot move freely in Romania for the regulations on a move may not stop her in law but identify her and removed any chance of living a normal life like any other Romanian.

Submissions

Mr Taghavi helpfully submitted a skeleton argument. He drew our attention to the salient parts of the background material and summarised the appellant's options as being

i. To live off her family (we are doubtful if her parents are in Romania so she could not live with them in Romania if they have left)

ii. To remain silent

There was no realistic option to relocate and no material had been produced which challenged her evidence on this. She is not obliged to live off her family nor to keep silent.

In addressing whether the adjudicator was right to find past persecution the threshold is finally (though not exclusively we suppose) based on the physical attacks by or on behalf of a state agent (the Mayor) from which, in the climate of Romania, there was not and was not likely to be any effective protection.

Mr Harper, in addressing the issues of relocation, points out that other than the background information before us it was not possible to bring evidence to show that something would not happen to Miss Haussman, but that the regulations did not prevent her relocating.

Reasons for Decision

We must we think accept that the appellant made out her case for persecution in Cluj.

We are not happy however that it has been accepted that what happened did so on account of Miss Haussmann's political opinion. It seems to us that it all happened because she is a Jew. The fact that there is a climate of anti-Semitism rife among some senior politicians and she is a vociferous member of an otherwise quiet minority does not we think convert the racial or ethnic nature of the persecution into an expression of opposition to the state and political opinion, imputed or otherwise.

The Government as such has been trying to come away from its history of anti-Semitism; vide the resistance to any commemoration of Antonescu, the erection of a monument to the Holocaust, the commitment to compensation and the overt existence of the Federation of Jewish Communities and its organ Realitatea Evreiasca. The Tribunal in Gomez 2000 INLR 549 said that 'political opinion has to relate to major power transactions which were taking place in the government or government-related sectors. It is not just what any non-state or even state actor may think but in this case we do not think it is either.

As we said accepting that she had been persecuted in Cluj, whether because of political opinion or being a Jew, she says she cannot without undue hardship live anywhere else in Romania. She says she tried to do so but to no avail. She says that anti-Semitism is widespread and she is not obliged to be quiet nor to live off her parents.

Firstly it is clearly necessary to remind ourselves that protection under the Convention is a surrogate one. It is available only when Romania is unable or unwilling to discharge its own duty to protect its own nationals. In Horvath [2000] INLR 239 the House of Lords made this clear and also that the standard of protection is a practical one.

Turning to internal protection. The Court of Appeal in Karanakaran [2000] INLR 122 deals with the issue most carefully. First of all it is part and parcel of the issue whether Miss Haussmann is a Convention Refugee. We have accepted that she left because of her fear of persecution and now we must examine whether she can justify her claim to be unable or unwilling because of such fear to avail herself of the duty of Romania to protect her.

We must look at all the available information and decide whether it is reasonable or would be unduly harsh, to expect Miss Haussmann to return. Is she able to avail herself of protection somewhere in Romania – which she can reach? In evaluating her claim it is all the facts which must be taken into account and that includes in our view a balancing of what the states signing the Convention were really putting their names to and the commensurate limits to what the asylum-seeker was entitled to demand. The only real obstacle to moving from Cluj to Bucharest is the requirement of Law 105/1996. On its face the law only requires registration on a move. The nature of the permit issued will depend upon the permanent nature of the accommodation. In our view this is it all it says and it is not possible to read into it, even against the background in Romania, any incidental limit on the appellant's work or her ability to leave behind that part of her experience which gave rise to her flight in the first place. Paragraph 6.22 of CIPU does not, as submitted by Mr Taghavi, support any such view.

Bucharest is not Cluj. Bucharest is the capital. She says she has a right to be vocal and is not obliged to depend on her parents. Both are indeed true, but in our view the Convention is not intended to provide a complete guarantee of one' fundamental human rights. If she can live in Romania without undue harshness, even it means living off her parents, she is not entitled to refuse to do so and still claim the status of a refugee under the Convention.

Looking at all the background material and taking what Miss Haussmann says into account it is not possible to conclude it would be unduly harsh to live in Bucharest – which is where she will be returned to.

R G Care

Chairman