BD (Application of SK and DK) Croatia) CG  UKIAT 00032
Date of hearing: 1 December 2003
Date Determination notified: 26 February 2004
|Secretary of State for the Home Department||APPELLANT|
"The first Appellant has lodged however some documents in support of his claim. Clearly his war record indicates that he was involved in military service and I note also that he has a general record of employment. Having regard to the totality of the evidence, and noting that the Respondent had not specifically attacked the Appellant's credibility in their refusal letter, and noting that the provision of conviction of persons for war crimes in absentia was and is a real problem in eastern Croatia, I accept the first Appellant's history as recounted by him and it forms the factual basis of my determination. That is in relation to the first Appellant."
Of the wife's medical condition, that is acute stress and anxiety, the Adjudicator said that it appeared that those mental health problems had been well and successfully managed and were not a matter that had to be particularly addressed. He said of the son that he found the history given by the son credible, noting the severe physical attack by Serbs on him when he was at school. This would affect his own subjective fear of return to Croatia.
"In relation to the Appellant's fear of serving in the military service that to a large extent is based upon firstly an assessment that the civilian option would not be available to him, on a balance I do accept the factual assertion contained in Dr Milivojevic's report, and secondly his subjective fear of service based on the fact that he considers his father will be regarded as a war criminal."
The factual assertion referred to is that the option of civilian or community service would not be available to the fourth Appellant. He recognised that he had no clear cogent evidence on the treatment of Serbs in the Croatian Army, but envisaged that the impact within the individual barracks at the level of NCO and fellow recruits might well be different from the position envisaged by orders given by senior officers. He would be very much in the ethnic minority as a recruit.
"Having made the assessment that the first Appellant is credible it would appear from the OECD Report that there is a real risk that he would indeed be persecuted for war crimes the result of which it would appear from other evidence both to be uncertain, subject to delays and certainly targeted upon Serbians. For that reason it is clear that the first Appellant has a well-founded fear and it would appear that this is still current in relation to information placed before me."
"The real fear of being involved in military life in a barracks is one that the Appellant only faces because he entered the United Kingdom after his eighteenth birthday and would appear therefore not to be able to claim the civilian service. It is therefore a problem of the fourth Appellant's own making by seeking protection. In those circumstances I find the Appellant cannot rely upon that fear of military service. There was and is an apparent adequate exemption that he presumably could have availed himself of. The Appellant has stated that he has suffered psychological difficulties. That was not apparent in evidence, no medical confirmation of that was given and again the Appellant apparently is in full-time employment. On that basis I find that the fourth Appellant has not made out his claim for political asylum. There are none of the complications relating to war crimes that affect the first Appellant's determination. Given these conclusions I find the fourth Appellant has not discharged the burden of proof of having a well-founded fear of persecution for a Convention reason. I have come to the conclusion that the Appellant's removal would not cause the United Kingdom to be in breach of its obligations under the Refugee Convention."
"In relation to the fourth Appellant his case clearly warrants and has had a more substantial consideration. I approach the analysis of it on the basis that having granted his father, and through him his mother and sister rights or protection under the Refugee Convention that his removal from the United Kingdom would effectively breach his family life. The fourth Appellant effectively claims that he is an isolated individual at risk. Whatever the merits of that it is clear that he has formed part of the Appellant's family at all times in Croatia, in Norway and on arrival in the United Kingdom."
He considered whether the removal of the son from the United Kingdom would be proportionate to the legitimate aim of ensuring a proper and safe system of immigration control, and concluded:
"Having regard to the sequence of events, the age of the Appellant when he first left Croatia, the clear and obvious close family ties and his record within the United Kingdom I find that it would not be a proportionate exercise of immigration control for him to be required to leave the United Kingdom."
"The position over war crimes prosecutions has not markedly changed; there are still trials in absentia, but that does not prevent a fresh trial upon arrest. Serbs face discrimination in the frequency of arrest and prosecution; some may be trivial harassing arrests from which the Croats do not suffer. They may be intended to discourage returns. However, the increase in arrests in 2003 still only affects a very small number of people; there is a trial process which is not said to be unfair and there is an appeal system which has led to some convictions being overturned. Some Croats are prosecuted; it is necessary to judge that figure in the light of the difficulty of persuading Serb victims to give evidence."
"Much of what [Dr Blitz] he has to say about war-crimes is historic in nature and he goes on to say that since 2002, a new Prosecutor has reviewed pending war crimes cases and has not admitted any new in absentia prosecutions. There is HRW material which shows that that stance has not always been followed. A substantial number of Serbs had been released after a short period. There continued to be discrimination in the prosecution of war crimes. He appears to accept that there have been few cases of Serbs actually being sentenced for war crimes and instead referred to the atmosphere of hostility surrounding trials and the intimidatory tactic of arbitrary arrest and detention of Serbs so as to reinforce the impression that whatever the Government may say, they are not welcome back. It is to give the wrong impression for Mr Mullins to say that group indictments have been used in a number of cases since 2000; there is no example of their use anew since the end of 2001. True it is that the new prosecutor activated some of the 2000 dormant indictments in 2000, but the number activated was in fact quite small, and the numbers arrested fell in 2002 to 34. The arrests came because prosecutors had been asked to review outstanding war crimes cases. There had been an upsurge of arrests in 2003; in the first half of the year 27 people were arrested, 21 of them were Serbs. Trials of Croats have produced mixed results, partly because of the fear associated with giving evidence in Croatia against Croats. Again it is right that as at July 2003, there were 1,467 war crimes cases of which 99 percent involved non-Croat suspects but the actual experience of arrests is quite different in numbers."
"77 (3) In considering –
(a) any ground mentioned in section 69, or
(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).
(4) In considering any other ground, the appellate authority may take into account only evidence –
(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or
(b) which relates to relevant facts as at that date."
"32. … I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of its determination. However, in the present case in my judgment there was nothing wrong with the Adjudicator's determination, there was therefore no reason to appeal it and it would be wrong for the Home Secretary, on the back of an appeal which has been dismissed, to seek to re-examine the threat to the refugee with reference to a date later than the Adjudicator's determination. To permit this would merely encourage appeals by a party who has no ground for appeal but hopes that the situation would change sufficiently to enable him to advance different arguments on different facts on appeal. Such procedures would not be in anyone's interest.
33. I note in conclusion that there is nothing in the Convention which obliges this country to shelter a person once he is no longer a refugee as therein defined because the situation has changed in his home country: paragraph 18 of the judgment of this court in Saad and Others v Secretary of State for the Home Department  EWCA Civ 2008;  INLR 34. I accept of course that there may well be humanitarian arguments which lead to a policy of not displacing erstwhile refugees from their country of refuge even if the situation in their home country changes. These matters do not fall to be examined by this court in the present case and have not been the subject of submissions. But I do not consider that a misuse of appellate procedures is the appropriate way of dealing with changes in the home country."
The Court therefore exercised its powers to determine the appeal for itself rather than to remit. (It is unclear what the reference to a dismissed appeal in paragraph 32 is since the appeals were allowed at each stage.)
"It seems to me that it is highly arguable that the Tribunal in the present case misunderstood what Schiemann LJ was saying in Oleed. The question in Oleed was whether this court should remit the case for a rehearing to the Tribunal. The question in the present case was whether, in hearing the appeal from a decision of the Adjudicator, the Tribunal should have regard to evidence as to the current situation in the Ivory Coast. On the face of it, that evidence was relevant and should have been taken into account: see section 77(3) of the Immigration and Asylum Act 1999."
"This last provision is of significance, not only because it gives a clear steer to Tribunals that they should avoid remitting cases to special adjudicators, no doubt because such remission will involve delay, but also because it indicates that the Tribunal has, where possible, to conduct any determination which will enable it finally to dispose of an appeal itself.
Particularly when determining appeals brought where it is necessary to give consideration to the general situation in particular parts of the world, it is important for Tribunals, when appropriate, to give their views as to that situation, so far as relevant, to claims for asylum in that part of the world.
In administering the asylum jurisdiction, the Tribunal (whether it be a special adjudicator or an Appeal Tribunal) has to consider not only whether the individual asylum seeker has the necessary subjective fear to be regarded as someone who is entitled to asylum, but in addition it has to be satisfied that that fear is well-founded. Whether or not that fear is well-founded involves applying an objective standard, a standard which will depend upon the state of affairs in that particular country as well as the circumstances of the individual asylum seeker.
It will be beneficial to the general administration of asylum appeals for special adjudicators to have the benefit of the views of a Tribunal in other cases on the general situation in a particular part of the world, as long as that situation has not changed in the meantime. Consistency in the treatment of asylum seekers is important insofar as objective considerations, not directly affected by the circumstances of the individual asylum seeker, are involved."
"13. There is, therefore, room for some debate about nuances of meaning between terms such as "wrong", "plainly wrong", "clearly wrong", or "unsustainable". But consideration of all of those cases and the principles which they adopt leads me to the following propositions:
(1) The Immigration Appeal Tribunal is not different from this court or any other court with jurisdiction to hear appeals on fact as well as law. (Of course that position is to change and it will lose its jurisdiction on points of fact.)
(2) The Immigration Appeal Tribunal, like this court or any other court, can only interfere if there has been an error: that is, if , on analysis, the adjudicator's decision was wrong. There is a useful analogy here with the Civil Procedure Rules, Rule 52.11(3) which says the same thing. It is not enough that the Tribunal might have reached a different conclusion itself.
(3) I, for my part, do not find adverbs such as "plainly" or "clearly" wrong helpful in the context of a fact-finding exercise. They have sometimes proved useful for appellate courts when reviewing the exercise of a discretion.
(4) The test is the same, whatever the nature of the error alleged, but its application will often depend on the type of evidence on which the finding of fact is based. One can distinguish at least four different types:
(i) There are findings of fact based on oral evidence and the assessment of credibility. These can only very rarely be overturned by an appellate Tribunal.
(ii) There are findings based on documentary evidence specific to the individual case. These can more readily be overturned because the appellate tribunal is in just as good a position to assess it. But even there, there may be an important relationship between the assessment of the person involved and the assessment of those documents. If so, great caution once again will be required.
(iii) There are findings as to the general conditions or the backdrop in the country concerned which will be based on the objective country evidence. The Immigration Appeal Tribunal will be at least as well placed to assess this as is the adjudicator. Although in our law the notion of a factual precedent is, as Laws LJ termed it in S and Others v Secretary of State for the Home Department  INLR 416 at paragraph 28, "exotic", in this context he considered it to be "benign and practical". There will be no public interest and no legitimate individual interest in multiple examinations of the state of this backdrop at any particular time once that had been considered in detail and guidance is given by the Tribunal.
(iv) There are findings as to the application of those general country conditions to the facts of the particular case. These will be an inference to be drawn to the adjudicator and then, if appropriate, by the Tribunal. The Tribunal will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator's approach."
"To my mind that is the error found by the Tribunal, and having found such an error the Tribunal were entitled to look at the case again in the round."
We do not consider that by that, the Court meant that as a matter of jurisdiction, such a finding was necessary before fresh evidence or fresh guidance as to country conditions or changing personal circumstances could be adduced. We have already set out our reasoning.
MR JUSTICE OUSELEY