SI (mixed Serb/Roma parentage) Kosovo CG

Factual and Procedural Background

The Appellant, a Kosovan born on 10 June 1976, arrived in the United Kingdom on 11 July 1998 and claimed asylum shortly thereafter. His asylum application was refused on 31 August 2007, with directions made for his removal to Kosovo. The Appellant appealed this decision, but his appeal was dismissed by Immigration Judge Robinson on 11 October 2007. Subsequently, Senior Immigration Judge Perkins ordered a reconsideration on 27 November 2007.

The Appellant’s claim centers on his mixed ethnicity: his mother was Serbian and his father Roma. He described violent events in his village in Kosovo in June 1998, including the killing of his father by Serbian soldiers and his own injury. The Immigration Judge found the Appellant’s core story credible but concluded that he would not face a genuine risk of persecution upon return to Kosovo, noting factors such as the Appellant’s ability to speak Albanian, lack of visible ethnic markers, and the sufficiency of protection available in Kosovo.

Senior Immigration Judge Nichols later identified a material error of law in the original determination, specifically the failure to properly consider relevant country guidance and case law regarding the risks faced by persons of mixed ethnicity in Kosovo. The appeal was adjourned for reconsideration of the risk issue, preserving the original findings of fact.

Legal Issues Presented

1. Whether the Appellant, as a person of mixed Serbian and Roma ethnicity, faces a real risk of persecution or treatment contrary to Article 3 of the European Convention on Human Rights (ECHR) upon return to Kosovo.
2. Whether there is sufficiency of protection available to the Appellant in Kosovo, including the availability and reasonableness of internal relocation.
3. Whether the Immigration Judge erred in law by failing to properly apply relevant country guidance and case law, including the Tribunal decision in KX and the Court of Appeal judgment in Hysi.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that as a person of mixed ethnicity, he would face persecution or ill-treatment from non-state actors in Kosovo due to ethnic tensions and the perception of his father as a collaborator.
• He argued that he could not be expected to hide his ethnic origin and that his mixed ethnicity would become known, exposing him to risk.
• He relied on reports and expert evidence indicating ongoing risks to minorities, including a detailed report from a security specialist highlighting discrimination, violence, and insufficient protection for minorities.
• The Appellant questioned the sufficiency of protection and internal relocation options, emphasizing the conflict between operational guidance notes and case law.

Respondent's Arguments

• The Respondent argued that the Appellant would not be at risk because he could live safely within a Roma enclave in his home area or elsewhere in Kosovo, given his ability to speak Albanian and his appearance.
• It was submitted that there was sufficiency of protection for Roma within their enclaves and that the Appellant would not face persecution from state actors.
• The Respondent relied on country guidance cases concluding that Roma and mixed-ethnicity individuals generally do not face a real risk of persecution or ill-treatment in Kosovo.
• The Respondent urged dismissal of the appeal based on the Appellant’s profile and existing protections.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
SK (Roma in Kosovo update) Serbia and Montenegro [2005] UKIAT 23	Assessment of risk to Roma minorities and sufficiency of protection in Kosovo post-2004 violence.	Used to support the conclusion that sufficient protection exists for Roma in Kosovo, with effective response by authorities to interethnic violence.
FD (Kosovo Roma) Serbia and Montenegro CG [2004] UKIAT 00214	Establishes sufficiency of protection for Roma returning to Kosovo enclaves.	Referenced to affirm that return to Roma enclaves does not breach Article 3 rights.
ES (Ashkaelians, mixed-Ashkaelian ethnicity) Serbia and Montenegro (Kosovo) CG [2006] UKIAT 71	Risk assessment for Ashkaelian and mixed Ashkaelian ethnicity persons in Kosovo.	Supported the view that such persons generally do not face real risk of persecution or ill-treatment.
KX (Mixed marriages Roma Albanian Januzi applied) Serbia and Montenegro (Kosovo) CG [2006] UKIAT 00072	Risk to individuals in Roma-Albanian mixed marriages and sufficiency of protection.	Clarified that mixed marriages face risk from non-state actors, but sufficiency of protection exists in Roma enclaves; distinguished from children of mixed marriages.
Hysi [2005] EWCA Civ 711	Internal relocation and risk assessment for persons of mixed ethnicity who speak Albanian.	Emphasized that individuals cannot be expected to conceal ethnic origins; remitted for rehearing due to improper risk assessment.
Horvath [2000] UKHL 37	Standard for sufficiency of protection in minority contexts.	Applied to assess whether Roma enclaves provide adequate protection from persecution.

Court's Reasoning and Analysis

The court began by acknowledging the Appellant’s mixed ethnicity and the factual findings regarding his background and experiences in Kosovo, including the death of his father and his own injury during the conflict. It noted the material error of law in the original Immigration Judge’s decision, specifically the failure to fully consider relevant country guidance and case law concerning risk to persons of mixed ethnicity.

The court carefully examined the evidence, including the detailed report from the security expert, which chronicled historical discrimination and violence against minorities, but also highlighted improvements in protection and the capacity of Kosovo authorities and international missions to provide security. While acknowledging ongoing discrimination and occasional violence, the court found no evidence of a real risk of persecution or treatment contrary to Article 3 ECHR for the Appellant, given his ability to pass as Albanian, his lack of visible ethnic markers, and the availability of protection.

The court considered the legal framework under the Refugee or Person in Need of International Protection Regulations and the Immigration Rules, focusing on the definitions of persecution, serious harm, and sufficiency of protection. It applied these principles to the facts, concluding that the Appellant would not face a real risk of persecution or serious harm upon return.

Regarding internal relocation, the court accepted that the Appellant could safely live within a Roma enclave or elsewhere in Kosovo, and that the operational guidance note’s assertions of sufficiency of protection were consistent with case law. It rejected submissions that the Appellant would be at risk from non-state actors or that the situation had deteriorated following Kosovo’s declaration of independence, noting the absence of evidence of increased violence.

Ultimately, the court affirmed the Immigration Judge’s findings of fact and concluded that the Appellant’s removal would not violate his rights under the Refugee Convention or Article 3 ECHR.

Holding and Implications

The court DISMISSED the appeal, upholding the decision to refuse asylum and human rights protection to the Appellant and permitting his removal to Kosovo.

The direct effect of this decision is that the Appellant’s claim for asylum and human rights protection on the basis of mixed ethnicity and risk of persecution is rejected. The court confirmed that, based on the evidence, there is no real risk of persecution or ill-treatment, and that adequate protection and internal relocation options exist in Kosovo. No new legal precedent was established; rather, the decision reaffirms existing case law and country guidance regarding the situation of minorities in Kosovo and the standards for assessing risk and sufficiency of protection.