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MH (Safe Route, Presevo Valley via Belgrade) Serbia and Montenegro CG [2002] UKIAT 06398 (04 February 2003)
URL: http://www.bailii.org/uk/cases/UKIAT/2002/06398.html
Cite as:
[2002] UKIAT 6398,
[2002] UKIAT 06398
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MH (Safe Route-Presevo Valley via Belgrade) Serbia and Montenegro CG [2002]
UKIAT 06398
CC02801-2002
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 27 November 2002
Date Determination notified: 04 February 2003
Before
Mr A R Mackey (Chairman)
Mrs L H S Verity
Mr P Rogers, JP
Between
MH |
APPELLANT |
and |
|
Secretary of State for the Home
Department |
RESPONDENT |
For the appellant: Mr P Anim-Addo of Counsel Representing Develmi
& Co, Solicitors
For the respondent: Mr J McGirr, Home Office Presenting
Office
DETERMINATION AND REASONS
- The appellant, who is a citizen of the Federal
Republic of Yugoslavia (FRY) and is of ethnic Albanian background, has just
turned 18-years of age and comes from the Presevo Valley district which is in
the province of Serbia but close to the border with Kosovo. At the outset Mr
McGirr made available to us the Home Office Country Information and Policy
Unit (CIPU) Country Assessment Bulletin for April 2002 for FRY and also
Bulletin 1/2002 for FRY and also Bulletin 1/2002, dated 16 September 2002 also
from CIPU "Returns to Serbia and Montenegro (excluding Kosovo)", a bulletin
that replaces Bulletin 1/2001 which has now been withdrawn.
- The Vice President, Mr Fox, in granting leave to
appeal in this matter stated:
"The applicant comes from the Presevo Valley and the Tribunal is
of the view that the grounds of appeal are arguable particularly in relation
to the question of the safety of return via Baghdad and the respondent must
be prepared to address this issue at the hearing."
- It is apparent that Mr Fox spelt out this issue in
the grant of leave, indeed in a further hearing that immediately followed this
matter Beti (HX/13117/2002) the same issue of the safety of return via
Baghdad and through Serbia to the Presevo Valley was also considered. The
reason for this was that over the past 18 months or more several decisions of
the Tribunal have addressed the issue of the safety of return to the Presevo
Valley by Albanian Serbs. These included determinations such as Gjemali
(01/TH/2883) heard on 9 October 2001, Osmani [2002] UKIAT00136 (heard 2
January 2002), Motoshi [2002] UKIAT01175 (heard on 14 March 2002,
Rexhepi [2002] UKIAT02460 (heard on 1 May 2002) and Gashi [2002]
UKIAT03850, heard on 9 August 2002. All these determinations considered the
issue of safety of return to the Presevo Valley by ethnic Albanians. In all of
these no in-depth consideration was given to the safety of the actual route
that would be taken by such returnees, if they are declined asylum or that
there would be no breach of the ECHR. The respondent has advised that the
return route would be to Belgrade and then across Serbia to the Presevo
Valley. The issue therefore which needed consideration and is undertaken in
these two determinations is not only is there a risk to these appellants in
returning them to the Presevo Valley but also would they be at risk to the
extent that their claims would be well-founded when they are returned to
Belgrade and then make their way across Serbia to the Presevo Valley. The
prima facie concern in addressing this issue is of course that in the
Presevo Valley ethnic Albanians are in the majority (see CIPU report April
2002 at 5.50) whereas in the rest of Serbia they are very much in the
minority.
- Both parties agreed that these were the principal
issues and concentrated their submissions in that area.
- Mr Anim-Addo submitted that we should regard
carefully the letter from the UNHCR, London, dated 5 September 2002 which
forms part of Bulletin 1/2002 CIPU. It is useful to set this out in full. It
states:
"With regards to returns via Belgrade, our branch office in
Belgrade have informed us that individuals from Presevo being returned
through Belgrade should not face any undue hardships. This is provided that
the persons concerned have the necessary travel documents and adequate
arrangements are made for their safe travel to their place of
origin.
On the security situation, reports indicate that over recent
months there has been a cessation of open conflict, and that only few
reports of serious violations by security forces in southern
Serbia.
It is however to be borne in mind that the area is still
characterised by tensions between the ethnic Albanian community and the
large Serb police and military presence. The UN Inter-Agency Report and
Recommendations on the Situation in Southern Serbia, FRY, January 2002,
provides an overview inter alia of the security situation in Southern
Serbia. This report can be found at
www.undp.aug.yu/files/reports/un-reports-ss-200201.pdf.
Given the prevailing inter-ethnic situation, UNHCR recommends
that returns to the Presevo via Belgrade should be implemented with
caution."
It is signed by the Deputy Representative in London.
- Mr Anim-Addo stressed that this appellant had just
turned 18, he had lost contact with his mother and his father was dead, thus
the caution advised in the UNHCR letter should be very much applicable in this
appellant's case. He was a young ethnic Albanian and because of this and the
contents of the UNHCR letter it could be seen that there was a real risk of a
breach of Article 3 of the ECHR should this appellant be returned to the
Presevo Valley via Belgrade. He also submitted that the comments of the UNHCR
that the area was still characterised by ethnic tensions should be noted.
- Mr McGirr reminded us that the appeal before us was
on human rights grounds only. He submitted that the issue of sufficiency of
protection for this appellant on return to the Presevo Valley had been
correctly assessed along the lines of previous Tribunal determinations. He
also noted that human rights issues had not been presented as part of the
appellant's case before the respondent or the Adjudicator which meant that
only Article 3 ECHR issues could be considered at this time. In this regard he
submitted that the Adjudicator had correctly applied the "starred"
determination of the Tribunal in Kacaj in the final section of her
determination.
- In relation to the safety of return via Belgrade he
firstly asked us to note the objective evidence set out in the CIPU report at
5.48, 5.49 and 5.50 which indicates that there are some 70,000 ethnic
Albanians living as a majority in the Presevo Valley. Thus there was, in his
submission, considerable safety assured to ethnic Albanians in that area
merely through their majority. He also asked us to note that some 5,000
Albanian Serbs lived in Belgrade and there was no evidence or indication that
they were at any risk because of their ethnic background. We were also
referred to the letter from the Foreign & Commonwealth Office (FCO) dated
3 September 2002 (Eastern Adriatic Department) states that:
"Neither the FCO nor British Embassy in Belgrade have seen any
evidence to suggest that ethnic Albanians in Serbia are unfairly
discriminated against or persecuted, either by authorities or local Serbs,
to the extent that travel to the Presevo Valley from elsewhere in Serbia is
made unduly difficult or rendered impossible.
The current FCO assessment is that the situation in Southern
Serbia (Presevo Valley) has been transformed beyond recognition in recent
months. Following local elections in July and August, the Presevo Valley now
has a political framework for integrating the ethnic Albanian community (and
other local minorities) into local democratic structures, as foreseen under
the Serbian Government "Covic Plan" launched in 2001. Ethnic Albanians now
have their own elected representatives who are working closely with the
Serbian Government and international organisations such as the OSCE to
restore long-term peace, stability and economic progress to the area. More
generally during the past year, both the FRY and Serbian Governments have
made progress in establishing a basis for improving inter-ethnic relations
throughout Serbia. The passage of the Federal Law on Ethnic Minorities
earlier this year was widely praised by the international community as an
example to the region."
- He submitted therefore that this indicated there was
no significant risk and that the recent changes proved a sufficiency of
protection would be available for persons such as the appellant on being
returned. He also noted that the UNHCR letter of 5 September 2002 indicated
there were no undue hardships in returning appellants via Belgrade although of
course it must be undertaken with caution. In this regard he submitted that
there was no evidence to say that the respondent would not be cautious in the
procedures and methods used for return.
- Finally we were asked to note the Bulletin itself
at paragraph 4 – "Documentation", which states that for individuals without
valid national passport/travel document the FRY will accept applications
lodged on behalf of the United Kingdom Immigration Service by the Immigration
Service Documentation Unit. In order to obtain issue of a travel document the
FRY authorities will require some original supporting documentation such as an
expired passport, identity card or driving licence. For applications made
without supporting documentary evidence the FRY authorities can verify
identity and nationality by referring back to official records held in Serbia.
This requires the applicant's full name, place of birth, date of birth,
address and photograph. The process takes 2 – 8 weeks to complete.
- In summary therefore he submitted that ethnic
Albanians were not being mistreated in Serbia and that there was no risk to
this appellant on return, thus the appeal should be dismissed.
Decision
- After careful consideration of the determination
of the Adjudicator and the submissions presented before us by both parties we
conclude that the appeal must be dismissed. Firstly we consider that there are
no substantial grounds for considering that there is a real risk that there
would be a breach of Article 3 of the ECHR should this appellant be returned
to the Presevo Valley. The objective Country Information set out not only in
the CIPU report but now in the additional reports and letters from the FCO and
UNHCR quote the security situation is vastly improved and continuing to
improve with only a few reports of serious violations taking place. We have
also noted the improving situation for ethnic Albanians in the rest of Serbia
which is clearly indicated from the objective information also. The UNHCR
letter of 5 September 2002 which it is self-evident, must be treated as more
objective than the FCO information, itself states that individuals returned
through Belgrade should not face undue hardships provided they have the
necessary travel documentation. Part 4 of Bulletin 1/2002 (CIPU) indicates to
us that there should not be any substantive difficulty in obtaining
appropriate documentation for this appellant. Thus while we would not conclude
that there is no risk to this appellant, we are satisfied that the level of
any risk will be remote or speculative and well below that of a real risk. The
conditions that may have led to a heightened risk have been improving,
particularly since 2001. Accordingly there are now clearly changed conditions
from those that were in existence one or two year's back. Our assessment of
course is made on the prospective risks to this appellant on return to Presevo
Valley via Belgrade in Serbia at this time.
- The appeal is accordingly dismissed.
A R Mackey
Vice President