United Kingdom Asylum and Immigration Tribunal

SP (Presevo Valley -Korovilas Report) Serbia and Montenegro [2004] UKIAT 00206

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 16 June 2004

Date Determination notified: 28 July 2004

Before
Mr N H Goldstein (Vice President) Dr A U Chaudhry Mr A F Sheward
Between

 

SP	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr D Blum, Counsel For the Respondent: Ms P Ramachandran, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, the Secretary of State for the Home Department, has been granted permission to appeal to the Tribunal against the determination of an Adjudicator (Mr M J Axtell) who, in a determination promulgated on 22 August 2003 allowed the Respondent's appeal on asylum and human rights grounds.
2. His Honour Judge N Huskinson in granting permission considered that grounds 1(b) and paragraph 2 were arguable. They state as follows:

"1. The Adjudicator has erred in law by allowing this appeal under Article 3 of the ECHR and under the Refugee Convention:

(b) The Adjudicator also records in paragraph 16 that the Respondent would be singled out when the authorities became aware of him and of his father's reputation and subsequent treatment would be in breach of the two above Conventions. He states that he has taken into account the CIPU report as well as the Respondent's sources. However, the only source of the Respondent that he quotes is that of James Korovilas the "purported" expert of paragraph 15. This report contains only two sources, the Council for the Protection for Human Rights and Freedoms on page 5 and a report by a Serbian journalist beginning at the foot of page 7. Otherwise there are neither quotes nor any evidence for the author's conclusions. Mr Korovilas says on page 7 that "information about human rights abuses in Presheva against ethnic Albanians is hard to find". He does not say whether he has found any. Given that Mr Korovilas did not give evidence and therefore was not available for cross-examination, it is submitted that the Adjudicator erred in law by attaching any weight to the report and if he had given the report no weight he would have dismissed the appeal.

2. The Adjudicator erred by allowing this appeal under Article 8 of the ECHR. It is submitted that he has not carried out a balancing act when considering proportionality. The fact that the Appellant has a job and friends does not outweigh the duty of the Secretary of State to maintain immigration control.

The Respondent is a waiter. There is no reason why he could not have a job and friends on return to a country where he has spent most of his life".

3. The Tribunal had decided to allow the Secretary of State's appeal.
4. Our starting point is indeed the report of James Korovilas dated 12 March 2003, that being the report before the Adjudicator.
5. Mr Korovilas is a Senior Lecturer in Economics and a Faculty Research Fellow at the University of the West of England in Bristol. He states that he has been actively involved in researching the developments in Albania and Kosovo since 1996 as his specialist area of study and that he has conducted research in Kosovo and Presheva on two occasions in 2000, once in 2001, twice in 2002 and once in January 2003. He lists his publications on Albania and Kosovo at page 2 of his report.
6. Ms Ramachandran submitted Mr Korovilas seemed to be more an expert on economic matters, a matter indeed re-enforced by his e-mail to the Appellant's representatives of 15 June 2004, that we allowed Mr Blum to tender in evidence with the approval of Ms Ramachandran. The email appears to be in response to questions put to him, of which we regrettably have no details, in which he seeks to clarify the nature of the Forum in Pristina described in his report run by Jetemir Balaj who:

"has invited me over to Kosovo on many occasions (first time in April 2000, last time in Jan 2004) to give lectures and seminars on a (sic) various issues relating to post-conflict reconstruction and inter-ethnic reconciliation."

7. It was however noteworthy in this regard, that Mr Blum accepted that Mr Korovilas's expertise appeared to be particularly grounded in the economics sphere although he submitted that as such, Mr Korovilas's opinions as they related to post-conflict reconstruction and inter-ethnic reconciliation would be no less valid.
8. We would agree with Ms Ramachandran that Mr Korovilas would not appear within his report of 12 March 2003 "to have used or cited any evidence or sources when making his conclusions in the report." Ms Ramachandran further submitted that one of the most important aspects relating to the current situation within the Presevo Valley, were the reforms of the police force. However, although Mr Korovilas had attributed some of the reforms to the Covic Plan in stating there had been improvements in the ethnic composition of the police and that ethnic Albanians were now reasonably well represented in several parts of the Presheva region, he went on to assert:

"However, there has been a tendency for the Serbian State to only recruit ethnic Albanians who were supporters of the old Milosevic regime and were members of the SPS (Socialist Party of Serbia). The problem here is that these Albanians are viewed by the other ethnic Albanians as having collaborated with the Serbian regime and therefore relations between the ethnic Albanian police and the ethnic Albanian population in Presheva are far from good. The initiative of creating a multi-ethnic police force has been further hampered by the fact that the police training center (sic) is in a part of central Serbia and ethnic Albanians who are not former SPS members are reluctant to travel to this area. As a result only a very small number of ethnic Albanians who were not SPS members have entered the multi-ethnic police force".

9. Ms Ramachandran rightly submitted that such observations were devoid of sourcing and "provide no idea as to where these assertions come from".
10. Mr Korovilas had continued at page 7 of his report to state as follows:

"In my opinion these initiatives were motivated by the desire to repair Serbia's international image as a perpetrator of human rights abuses and ensure the re-establishment of Serbia (Yugoslavia) as an accepted member of the international community." "As for the effectiveness of the various measures implemented in the Presheva regions, there is clear evidence that much work still needs to be done in order to restore the confidence of the ethnic Albanians who still fear persecution from the Serbian State. The sensitivity of the current political situation in Serbia ensures that any actions against ethnic Albanians in Presheva would be carried out in an extremely covert manner. Therefore information about human rights abuses in Presheva against ethnic Albanians is very hard to find". (Our emphasis).

11. Again, as Ms Ramachandran rightly pointed out, Mr Korovilas failed to cite the source of his evidence in reaching those conclusions. Mr Korovilas had failed to state whether he had ascertained such information for himself and, if he did, as to how he was able to obtain that information.
12. We agree with Ms Ramachandran that only two sources are identified within the report, namely the Council for the Protection of Human Rights and Freedoms in Pristina and that of a Serbian journalist.
13. Indeed the email to which we have above referred of 15 June 2004 clarifies that the Serbian journalist is one "Fazli Balaj" described by Mr Korovilas as "a very good friend of mine and I stay at his house when I am in Kosovo. Fazli is one of the directors of the Council .. in Pristina. Part of my research in Kosovo is focused upon the effects of ethnic discrimination in the labour market. Fazli gives me access to the records kept by the Council .. which is vital for my research. This co-operation between us also started in April 2000".
14. Those then, are the only sources upon which Mr Korovilas appears to have relied within his report and even then, we note that there is no indication that they were the sources upon which Mr Korovilas's observations were based and if so as to which source provided the different aspects of the information upon which Mr Korovilas relied.
15. In terms of the reliability of the report a further feature of it that causes the Tribunal some concern, relates to Mr Korovilas's analysis of the security situation for ethnic Albanians in the Presheva region. In this regard he points out that:

"The ethnic Albanian population of Presheva are resentful of the fact they have been left out of the UN Protectorate of Kosovo since this leaves them vulnerable to Serbian oppression. This had led to an increased level of Albanian nationalism in the Presheva region, which in turn has swelled the ranks of the pro-independent's paramilitary movement, NLA (National Liberation Army). The UCPMB has launched a series of attacks upon Serbian police and military units in Presheva which in turn have prompted a purging of suspected UCPMB members in the Presheva region. These actions have resulted in a significant loss of life on both sides of the conflict, a flood of refugees out of the region and ultimately on April 24 2001 to the deployment of Yugoslav army units with full conflict capabilities within the Presheva region buffer zone".

16. In describing a situation that developed "ultimately" on April 24 2001, it is a good indication that this entire passage relates to events up until April 2001 in the circumstances of a report Mr Korovilas prepared in March 2003. As Mr Ramachandran rightly submitted, the matters referred to in the above passage were clearly out of date.
17. At the outset of the hearing we had drawn to the attention of the parties a decision of the Tribunal in Tahiri [2002] UKIAT 08386 where at paragraph 26 the following was stated:

"In May 2001 the UCPMB accepted an amnesty from the Serb authorities. The organisation handed over significant quantities of weapons, disbanded and withdrew from the Presevo area. By the end of May with the agreement of the International Community and ethnic Albanian leaders, the Serb forces were able to complete their phased return to the GSZ. On 3 June 2002 the FRY assembly passed an amnesty law for persons suspected of committing terrorist acts in southern Serbia between 1 January 1999 and 31 May 2001".

18. In terms of the reliability of Mr Korovilas's report and the weight to be attached to it, the Tribunal cannot but fail to note that he makes no reference to these matters within his report. Indeed, a reader unfamiliar with the current situation would be forgiven on reading this report, to assume that the UCpMB remain active in the region. We find it extraordinary in such circumstances that Mr Korovilas who puts himself forward as an expert could have failed to demonstrate any awareness of the May 2001 amnesty and the withdrawal of the UCPMB from the Preshevo area.
19. Page 5 of his report clearly relates to events of 2000 and 2001.
20. As such, it begs the question as to whether Mr Korovilas actually took the trouble to address the Appellant's case or as to whether he had simply relied on views that he may have expressed in earlier reports notwithstanding that at the top of his report Mr Korovilas has stated:

"I have read your client's statement and the Home Office reasons for refusal dated 26 June 2002.

I understand that your client is an ethnic Albanian from the town of Medvegj in the Presheva region of southern Serbia. I appreciate that in his statement your client describes himself as coming from Kosovo. This is assertion (sic) that he comes from Kosovo is simply a reference to the view of many Albanian nationalists that the Presheva region is a part of Kosovo which fell outside of the UN administered region".

21. It is at this point, namely the opening of Mr Korovilas's report that any further reference to this Appellant and his particular circumstances end.
22. It was indeed noteworthy that Mr Blum agreed with us and certainly did not challenge, Ms Ramachandran's assertion that the report did not actually address the Appellant's case. As Ms Ramachandran rightly submitted if it did:

"Why at the top of page 6 refer to the UCPMB when his family were not linked with them but with the LDK and KLA and there is nothing in the report about that".

23. The Tribunal having considered the report cannot find a single sentence within it that relates to the particular circumstances of this Appellant other than the opening passage to which we have above referred.
24. This raises a particular concern, given that the Adjudicator found the Appellant's case to be "exceptional".
25. Indeed, at paragraph 16 of his determination the Adjudicator states as follows:

"Whilst noting all that is said in the Country Assessment I regard this Appellant as falling into an exceptional category, not merely because he is an ethnic Albanian brought up a (sic) in still (sic) very "sensitive area" because of Albanian aspiration but because "de facto" the region continues to be dominated by a Serbian administration with Serbian police and security forces who I am satisfied would become aware of the Appellant on his return and indeed of his father's reputation and standing in the LDK/KLA. It may be that changes have indeed been put into place and that the efforts under the Covic Plan will produce in future generations a more harmonious mix of Serbs and ethnic Albanians such that the fears entertained by the likes of the Appellant would not be justified. I do not find having weighed matters carefully in the balance that that is the situation at present. I fear on the Appellant's behalf that he will be singled out and having come to the attention of the authorities there are substantial grounds for believing that he is at real risk of either persecution or ill-treatment that would breach the Article 3 threshold". (Our emphasis).

26. Indeed, Mr Blum placed particular emphasis on the fact that it was the Adjudicator's concern that the Appellant would be "singled out" upon return because of his father's claimed high profile and standing in the LDK/KLA that was central to the Adjudicator's findings and accounted for the Adjudicator's conclusion that the Appellant fell into "an exceptional category".
27. It is therefore in our view, all the more remarkable, that Mr Korovilas instructed as an expert upon these matters to prepare a case specific report relating to this Appellant's particular circumstances, should have failed to even remotely address these matters within his report.
28. We are concerned that notwithstanding Mr Korovilas's failure to address the central issues for which his report was commissioned, yet alone the other aspects of it to which we have above referred, that the Adjudicator would appear to attach such weight to it in reaching his own conclusions. Indeed it is apparent from paragraph 15 of the Adjudicator's determination that he failed to appreciate that much of the information contained within Mr Korovilas's report, (notwithstanding that the Adjudicator recognised it was dated March 2003, and that he had included the conclusion, that "Mr Korovilas considered that the evidence suggested that the situation in the Presheva region was still not entirely safe for ethnic Albanians") was largely based upon out of date and largely unexplained information.
29. We note that Mr Korovilas did not attend to give evidence before the Adjudicator so that any concerns raised by his report could be tested. Indeed, Mr Blum informed us that for reasons of funding it had not been possible to produce Mr Korovilas to give evidence before us.
30. For the above reasons, we find that the Adjudicator was wrong to attach significant weight to Mr Korovilas's report in reaching his conclusions on the objective material.
31. Indeed, the Adjudicator's assessment of the objective material was further in our view, rightly challenged by Ms Ramachandran in terms of his failure to take account of the CIPU Country Report before him as regards the situation in the Presevo Valley.
32. Ms Ramachandran was incorrect in submitting that the Adjudicator having claimed to have considered the report failed to make any further reference to it. Indeed, he made reference to the fact that the Presenting Officer had drawn his attention to paragraphs 5.29 to 5.32 of the report (see paragraph 12). Further, at paragraph 14 of his determination, he had referred to a further passage at paragraph 6.68.
33. As Mr Blum indeed accepted, although the CIPU Report before the Adjudicator was that of April 2003, the Tribunal not least in the light of the starred Tribunal decision of the President in [2004] UKIAT 00032 D (Croatia) and other cases, were entitled to take the view that once permission to appeal was granted and the appeal was before the Tribunal, the grounds had to be considered along with any other material relevant to a decision on the appeal and the appeal had to be dealt with in the light of the current material. The Tribunal had the appeal before it and had to determine it. It was required to do so in the light of the current available country material and its own guidance.
34. However, the hearing before the Adjudicator took place on 29 July 2003 and therefore post-dated by some months the promulgation of the decision of the Tribunal in Tahiri (above).
35. In this regard, as the Tribunal have stated on many occasions, (see, for example, Almalikuyu [2002] UKIAT 00749) it is not the task of an Adjudicator when evaluating the objective country materials before him to select out a particular evaluation without placing it side by side with others in order to make a qualitative assessment and arrive at a balanced overview of those materials. Further, it is not without more simply to adopt a contrary view to that taken by the Tribunal and the Courts. Whilst Adjudicators are obviously not bound by findings of fact on general country conditions made by either the Courts or the Tribunal in other cases decided previously, neither should they approach their task as if their assessment was the first ever undertaken by a judicial decision-maker. The extent to which Adjudicators and the Tribunal function as "expert" Tribunals depends very much on them keeping a close track of what assessments have been made previously and why. Hence Adjudicators should give careful attention to previous Tribunal considerations that have been made as to the situation in the particular country.
36. In Tahiri the Tribunal were further mindful of an earlier decision in the case of Zejnullahu [2002] UKIAT 05130 which found:

"In short we consider the most recent materials demonstrate that there is now a sufficiency of protection for ethnic Albanians in general in the Presevo Valley. For an asylum claim brought by an ethnic Albanian from southern Serbia to succeed now, there would need to be some exceptional circumstances justifying treatment of an Appellant as still within a continuing risk category".

37. In Zejnullahu the Appellant, although he had links with the UCPMB, had been arrested and released by the Serbian authorities. It was on that basis that the Tribunal held that the Serbian authorities had no interest in him.
38. We now look at the Appellant's case. It was recognised by the Adjudicator in setting out the Appellant's account in evidence, that this Appellant whilst still a very young man (indeed no more than aged 17 when he left the country), had been a message deliverer for his father whom he claims was a longstanding and active member of the LDK. Although the Appellant maintained the fear that there would be Serbian interest in him because of inter alia of his father's past activities, it is apparent that the defining event that led the Appellant to flee was in December 1998 when the family home was surrounded by police and the Appellant, with his father's assistance, escaped through a small window and fled to Macedonia. He later heard that his father had been arrested and weapons and ammunition had been found in the family home that had been destroyed by the Serbian police.
39. The Adjudicator appears to have failed to take into account the fact that the Appellant left the country, now some six years ago, and the passage of time nor the progress subsequently made under the Covic Plan.
40. Ms Ramachandran further submitted that apparently, there was only one brief period of detention, in 1995 when the Appellant was aged 14, from which the Appellant was released after two days. She rightly submitted in such circumstances, that it was questionable that as such, there would be a serious possibility that the Appellant would now be seen as a serious suspect, let alone in 1995 when he was briefly detained. In all other respects this Appellant did not come to the attention of the authorities.
41. We would agree with Ms Ramachandran's submission, that given the reforms and the passage of time and the improvement in the political situation, the Adjudicator was wrong, notwithstanding the claimed political activities of the Appellant's father, to conclude that this was a young man who was now in a vulnerable or exceptional category such that he would be at real risk on return.
42. The Appellant had otherwise, never come to the attention of the authorities and the reforms that had taken place under the Covic Plan would mean that the Appellant would now return to a very different situation on the ground from the one that he left. He was 17 when he left and was now aged 22. He was single and in good health and his commendable efforts when he arrived in a strange country to have established an independent life for himself here, would hold him in good stead upon return. She rightly submitted that he was therefore in no different position from anyone else coming from that region during the conflict.
43. Indeed, in Tahiri, the Tribunal bore in mind the UNHCR's detailed assessment of the implementation of the Covic Plan in January 2002. Significant progress had been made in many areas. In particular a multi-ethnic police force had been established with training provided by the OSCE.
44. The report stated that the positive improvement in the Presevo area had been held by the international community as a great success for the Serb administration and local ethnic Albanian leaders. Although there had been sporadic incidents of violence from the ethnic Albanian extremists, the situation in the Presevo area had continued to stabilise with the gradual implementation of the Covic Plan. Although the Tribunal at that time, were mindful of what they described as "the recent history of the area" that left the potential for a conflict to flare again, the continuing willingness of all parties to engage in negotiation and the Serb authority's commitment to addressing the needs of the local population marked a radical change of approach and gave cause for optimism. There was produced before the Tribunal in Tahiri, a letter from the UNHCR regarding returns via Belgrade. It stated that the Belgrade office of the UNHCR had informed London that individuals from Presevo who had been returned through Belgrade should not face any undue hardships provided that the person concerned had the necessary travel documentation and adequate arrangements were made for their safe travel to their place of origin. Security situation reports indicated that there had been a cessation of open conflict and only a few reports recorded serious violations by security forces in southern Serbia.
45. We now have the benefit of the CIPU Country Report of April 2004 which records that by the end of 2002 the Multi-Ethnic Police Force (MEPF) had been deployed throughout southern Serbia and were trained in modern police tactics. However a UN situation report on southern Serbia of January 2002 (and therefore one that predated the Adjudicator's determination) recorded that most ethnic Albanians who fled to Kosovo had now returned to their homes and that incidents of police harassment of ethnic Albanians in southern Serbia had decreased significantly over 2001.
46. The US State Department Report for 2003 noted that there were no reports of physical abuse or brutality during 2003.
47. A Human Rights Watch Report of 2003 described the situation in Southern Serbia as remaining "a relative success story on minority rights …". There had been sporadic incidents of violence from ethnic Albanian extremists. The conclusion of the International Crisis Group of December 2003 continued by stating "Southern Serbia is dependant in part on the continued goodwill of both the Serbs and Albanians as well as on the continued engagement of the international community".
48. We are of course mindful of the outbreak of violence that tragically resulted in the deaths of nineteen people in the area in March 2004 to which indeed Mr Blum made reference and referred to within the recent April 2004 CIPU report at page 88. Thankfully there have been no significant reports of such further tensions within the area.
49. We further note that the LDK, of which it is claimed the Appellant's father was an active member, is listed within the report as a recognised legal party in Kosovo and indeed its Chairman, Dr Ibrahim Rugova was elected and has indeed been present in Kosovo since early 2002.
50. Of particular interest is a passage in the report at paragraph S.6.66 which includes inter alia the following:

"Also according to the (UK) Foreign and Commonwealth's chronology of events in or affecting Kosovo assembled in July 2002, in May 2001, the UCPMB accepted an amnesty from the Serb authorities. Continuing, the report states, the organisation handed over significant quantities of weapons, disbanded and withdrew from the Presevo area. Also according to the (UK) Foreign and Commonwealth's chronology of events in or affecting Kosovo, assembled in July 2002, on 3 June 2002 the FRY assembly formally passed the amnesty law for persons suspected of committing terrorist acts in southern Serbia between 1 January 1999 and 31 May 2001. The Humanitarian Law Centre confirmed later in 2002 that the amnesty has been implemented correctly". (The emphasis is ours).

51. This is information that would and should have been within the Adjudicator's knowledge, but to which he failed to refer within his determination.
52. In this regard, it was noteworthy that Mr Blum most fairly and realistically accepted, that given that the Appellant did not know what happened to his father after 1998 or indeed whether he was dead or alive, the fact that the Appellant's father might have been involved in some kind of Amnesty could not be disregarded. He, however maintained that we could not speculate as to what may have happened, although he accepted that there was clearly an Amnesty.
53. The Adjudicator failed to give to give any consideration as to whether the Appellant's father would have benefited from the Amnesty or that in such circumstances it would be difficult to see why there would be any continued interest (if there was interest at all) in the Appellant now because of his family association.
54. Mr Blum had asked us to "trust" Mr Korovilas's report, but he acknowledged that Mr Korovilas had failed to deal with risk upon return in relation to the Appellant's particular circumstances and as to whether he would now be targeted because of that family relationship. As such we can but only conclude that for this reason as well the others to which we have above referred, that Mr Korovilas's report is not one that we can trust nor, in the circumstances, a report upon which the Adjudicator should have placed any weight.
55. We have the benefit of Mr Korovilas's further report of 6 June 2004. Regrettably it only serves to reinforce our earlier findings as to the reliability of Mr Korovilas's opinions in these particular circumstances. He claims that the information and opinions in his latest report are based on several sources, namely:

"The findings of my research trip to Kosovo and Presheva in July 2003. Secondly I have several contacts in the UNHCR in Pristina who provide me with up-to-date information and opinions and ethnic minorities in the region. Thirdly, I have an ongoing research project with The Forum in Pristina which is a well respected political NGO currently funded by US office and the British office in Pristina. The Forum also provides me with invaluable information on current events in the region.

I have also worked on several projects with the leading Albanian civil rights lawyer Fazli Balaj since 1999".

56. We are mindful that in his subsequent email Mr Korovilas has described Mr Balaj as a very good friend of his with whom he has stayed. Other than Mr Korovilas's own claim, we have no information to establish that Mr Balaj is regarded as a leading Albanian civil rights lawyer.
57. The recent report appears to cover essentially the same information as contained in the report of March 2003. It is again apparent that Mr Korovilas's understanding of the security situation for ethnic Albanians is based largely on out of date information. Indeed, even with regard to his referral to recent developments, the precise sourcing of the information is not identified.
58. Indeed to the extent that Mr Korovilas now identifies his sources, they are expressed in somewhat vague terms such as "contacts" with members of the UNHCR. As with the earlier report, and more particularly, the information contained within it, is not specific to the questions that Mr Korovilas was required to address in what was supposed to be a case specific report. For example, it does not appear to take into account, as the current objective evidence reveals, that the KLA have been routed, and that to the extent that they now exist, they are a disparate entity.
59. Mr Blum recognised that:

"If the Tribunal do not accept the evidence of Mr Korovilas but prefer the Presevo has advanced and prefer the evidence in the CIPU, my argument is torn from my feet and I could not suggest or establish a risk to the Appellant under the Refugee Convention. I simply ask you to prefer the Korovilas reports".

60. For the reasons given, we attach no weight to the reports of Mr Korovilas and prefer the objective material otherwise before us.
61. We conclude that the Adjudicator was wrong to place reliance upon the report of Mr Korovilas before him and failed to take adequate account of the objective material available to him in wrongly concluding that the Appellant was in an exceptional category and at continued risk on return.
62. We would add in this regard, that although we appreciate the Presevo Valley is a relatively small area, the objective material reveals (as indeed it did before the Adjudicator) that notwithstanding that a 2002 Serbian Census of the area demonstrated that in the Appellant's home town of Medvedj Albanians were in a minority, it was apparent that they were in a clear majority in Presevo and Bujanovac. It was estimated there were up to 100,000 ethnic Albanians living in the area who formed the majority of the population according to the Humanitarian Law Centre in Belgrade.
63. We therefore conclude that the Appellant has failed to establish a well-founded fear of persecution for a Refugee Convention reason and that his removal would not cause the United Kingdom to be in breach of its obligations under the Refugee Convention.
64. We now turn to the Adjudicator's consideration of the Article 8 ECHR issues raised in this case. He states at paragraph 17 of the determination that he has considered the case of Mahmood and its guidelines. The Adjudicator concluded that he took account of the fact that the Appellant had nothing to return to and that it was believed that his mother and sisters might be in Macedonia and that the Appellant was unaware as to the whereabouts of his father. The Adjudicator continued:

"The more significant aspect however that falls to be considered carefully is the life that this Appellant has built up in the United Kingdom and the achievements that by his own endeavours he has secured over more than four and a half years. Those achievements which I have spelt out earlier are impressive: he is already a useful citizen and has the potential without being a burden to the state of not only being self-supporting but also a responsible member; the character references describing his personal qualities are in themselves impressive of the society in which he now lives. He has and enjoys a quality of life, the central feature of which is hard work and endeavour to get where he has today. I find it would be disproportionate and unnecessary in the balancing exercise that has to be undertaken for his to be returned to FRY (Serbia)."

65. We are satisfied that the Adjudicator's reasoning amounts to an error of law. It would be right to observe that Mr Blum in highlighting the Appellant's achievements as reflected in the Adjudicator's determination accepted inter alia, that the Tribunal were bound by the starred Tribunal decision of the Learned President sitting with two Vice Presidents in M (Croatia) [2004] UKIAT 00024 that in assessing proportionality under Article 8 the issue should be assessed on the basis of whether the Respondent's decision was lawful. There can be no doubt in the circumstances of this appeal that the removal of the Appellant would indeed be lawful and one that notwithstanding the Appellant's estimable characteristics and talents, would help him to adjust to life in Southern Serbia and indeed would be of benefit to that community. We are satisfied that his removal would involve no breach of the Appellant's human rights and that it is a proportionate response to the interests of immigration control and falling within the range of reasonable conclusions available to the Secretary of State.
66. For the sake of completeness we make it clear we find that this country's obligations under the ECHR would not be breached by that return.
67. We therefore reverse the decision of the Adjudicator and allow the appeal of the Secretary of State.

N H GOLDSTEIN

VICE PRESIDENT

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