MS & others (Risk on Return, Depleted Uranium) Kosovo CG

Factual and Procedural Background

The appellants appealed with permission against decisions by Adjudicators dismissing their appeals against refusal of asylum and the setting of removal directions. The central issue relied upon by the appellants concerns the purported risk on return to Kosovo from depleted uranium munitions used during the 1999 conflict. These appeals were combined to provide guidance on the depleted uranium risk for asylum claimants to be returned to Kosovo. The Tribunal considered detailed skeleton arguments, expert reports, and evidence including a map prepared by the United Nations Environmental Programme (UNEP) showing sites targeted by depleted uranium ordnance during the conflict.

The appellants did not initially rely on depleted uranium risk in their asylum claims, nor on a threatened breach of Article 3 of the European Convention on Human Rights (ECHR) 1950. Instead, they claimed that return would breach their Article 8 rights concerning family and private life, including physical and moral integrity. Their claims were presented in three ways: a specific marriage-related claim concerning risk of spontaneous abortion due to depleted uranium exposure; a claim that the Secretary of State had a duty of continuing disclosure regarding depleted uranium risks; and a claim that the risk in their home areas was sufficient to engage Article 8.

Legal Issues Presented

1. Whether the Secretary of State complied with directions to disclose all documents relating to depleted uranium risks in Kosovo.
2. Whether the Secretary of State has a duty to investigate and disclose material not in the public domain relevant to depleted uranium risks.
3. Whether the Secretary of State owes a continuing duty of disclosure of physical risks known to him under Article 8 of the ECHR.
4. Whether there is a real risk from depleted uranium contamination in Kosovo sufficient to engage Article 8 rights of the appellants on return.
5. Whether return of the appellants to Kosovo would breach their Article 8 rights considering the scientific evidence on depleted uranium risks.
6. Whether the marriage-related claim concerning risk of spontaneous abortion engages the proportionality test under Article 8.

Arguments of the Parties

Appellants' Arguments

• The Secretary of State failed to comply with a direction to disclose all documents relating to depleted uranium risks, amounting to a breach of procedural fairness.
• The Secretary of State has a duty to investigate and disclose all relevant material, including that not in the public domain, to assist appellants in establishing their claims.
• There is an overriding requirement of fairness and a continuing duty of disclosure under Article 8, including disclosure of inter-Governmental correspondence and information not otherwise accessible to appellants.
• Scientific evidence, including expert reports by Dr Busby and Professor Hooper, indicates a continuing risk from depleted uranium contamination in Kosovo, sufficient to engage Article 8 rights.
• Return to Kosovo, particularly to areas affected by depleted uranium, would breach Article 8 due to risk to physical and moral integrity.
• In the specific marriage-related claim, return would breach family and private life rights due to the risk of spontaneous abortion for the appellant’s British spouse.
• Requests for disclosure of maps and information about depleted uranium strike sites should be met by the Secretary of State before removal.
• There is a scientific debate on depleted uranium risks; the United Kingdom has a duty of good faith to inform appellants of any actual or seriously debatable risks.

Respondent's Arguments

• The Secretary of State complied with the direction to disclose relevant documents, including a detailed report and a map identifying depleted uranium strike sites.
• There is no general duty on the Secretary of State to search for or disclose material not relied upon or not in his possession.
• The appellants had ample time to raise the depleted uranium issue but did not do so at first instance; hence no duty arises to assist them now.
• The scientific evidence from reputable international organisations (WHO, UNEP, UNMIK, K-FOR) shows no significant health risk from depleted uranium contamination to the civilian population in Kosovo.
• The risk, if any, is localized and minimal, particularly in Pristina to which the appellants would be returned.
• Any onward travel to areas with higher risk would be the appellants’ choice and not attributable to the United Kingdom.
• The appellants’ claim that the Secretary of State must disclose all inter-Governmental or diplomatic information is unsupported by law and would impose an unacceptably onerous burden.
• The marriage-related claim does not meet the required standard; there is no evidence of increased risk to the spouse, and it is not disproportionate to require the appellant to return alone and apply for readmission as a spouse.
• The Tribunal lacks jurisdiction to impose a freestanding disclosure duty on the United Kingdom Government beyond the established legal framework.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal first addressed procedural compliance, concluding that the Secretary of State had complied with directions to disclose relevant documents by providing a detailed report and map of depleted uranium strike sites. There was no earlier challenge to the adequacy of disclosure, and no duty exists to assist appellants by searching for undisclosed or unknown documents, especially given the accelerated nature of the appeals and binding authority limiting discovery obligations.

The Tribunal rejected the appellants' reliance on the UNHCR Handbook’s shared duty to establish facts, noting it applies to refugee status determination and not directly to human rights claims under the ECHR, and that the appellants had not discharged their part of the duty by raising depleted uranium claims at first instance.

Regarding the duty of disclosure under Article 8, the Tribunal considered relevant case law and concluded that any such duty is limited to information held by the State engaging in the hazardous activity. The UK, as a third party State, is not obliged to disclose all information it may hold, especially not material outside its possession or knowledge. The appellants’ proposed duty was unacceptably wide and onerous.

On the substantive risk from depleted uranium, the Tribunal weighed the scientific evidence. It preferred the comprehensive and peer-reviewed reports of international organisations (WHO, UNEP, UNMIK, K-FOR) and the Department of Defense report, which found no significant contamination or health risk to the general population of Kosovo, including Pristina where the appellants would be returned.

The expert report and oral evidence from Dr Busby, while raising concerns, were found to be methodologically flawed, anecdotal, lacking peer review, and not directly relevant to the risk faced by individuals returning years after the conflict. The Tribunal found his evidence insufficient to outweigh the international consensus.

On the Article 8 test, even if a risk existed, it was minimal and outweighed by the United Kingdom’s legitimate interest in immigration control. The Tribunal also noted that any onward travel by appellants to higher risk areas would be voluntary and not attributable to the UK.

Regarding the marriage-related claim, the Tribunal found no evidence that the spouse faced a real risk of harm, and it was not disproportionate to require the appellant to return alone and apply for readmission.

Holding and Implications

The Tribunal DISMISSED the appellants' appeals.

The holding confirms that the Secretary of State complied with disclosure obligations and is under no duty to investigate or disclose material not in his possession. The scientific evidence does not establish a significant risk from depleted uranium contamination in Kosovo sufficient to engage Article 8 rights or prevent removal. The marriage-related claim does not alter this conclusion. No new precedent was established; the decision applies the existing legal framework to the facts of these appeals and underscores the high threshold required to impose duties on a sovereign State in relation to areas outside its territory.