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  • R Chalkley Immigration Judge C Jarvis Immigration Judge before he was released. He then applied for asylum in Croydon on March On January the Respondent refused to recognize the Appellant as a refugee, but granted the Appellant exceptional leave to remain in the UK until February the day before his eighteenth birthday. On January the Appellant applied for further leave and that application was refused on May for the reasons set out in a letter of the same date. In brief the Respondent decided not to treat the application as a fresh claim for asylum as he considered that there were no new issues raised that differed significantly from those raised in the initial asylum application. The Respondent did not take issue with the Appellant's account but considered that as he was able to speak Albanian and has fairer skin than some Roma; he would be less distinguishable than them as being a member of a minority group and therefore less at risk on return. He took the view that interference with the Appellant's private life pursuant to Article ECHR would not be disproportionate. The Appellant appealed to an Immigration Judge and his appeal was dismissed on refugee and human rights grounds and ECHR), by Mr P A Grant-Hutchison in a determination issued on July The Appellant applied for an order for reconsideration of the Immigration Judge's decision. That application was considered and granted by Senior Immigration Judge Dr H H Storey on August He found that it was arguable that there had been a material error of law in that the Immigration Judge had misdirected himself in law in relation to the question whether there is a sufficiency of protection available to the Appellant following the guidance of the court in Horvath v SSHD INLR HL. In particular, it is arguable that the Immigration Judge fell into error in misapprehending the documentary evidence, including that from the UNHCR, giving insufficient weight to the latter, leading to findings that are against the weight of the evidence and conclusions in relation to the protection issue that are unsustainable. We remind ourselves that when hearing a case by way of reconsideration, the Tribunal must first decide whether or not the determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted. We have before us all the documentary evidence that was before the Immigration Judge, including background reports from the CIPU: April Country Assessment and IAS Research Unit Analysis of an extract thereof; UNHCR position and other papers letter UNHCR November on return of perceived Serb collaborators; statements of the Appellant; payslips and letters from employers. We also have before us a number of cases Appellant S v MIMA INLR Hysi v SSHD EWCA Civ B(Serbia and Montenegro-Kosovo) UKIAT Ardian Dizdari UKIAT December of the Appellant's CaseThe Findings of the Immigration Judge The Immigration Judge found that the Appellant, born on February is a citizen of Serbia and Montenegro, from Prizren, Kosovo, and is of mixed ethnicity in that his mother was a Serb Roma and his father is ethnic Albanian. The Appellant had two sisters and a brother. He found that the Appellant and his account were to be regarded as credible. us, the Presenting Officer confirmed that credibility had not been in issue in the past and that it was not in issue now. The Immigration Judge did not recite any other specific findings of primary fact, and we therefore set these out in brief here. The Appellant and his family experienced discriminatory treatment from time to time, including insults and abuse due to their mixed origins, from both Serbs and Albanian Kosovans. In the early hours of February three Kosovan Albanian men came to the Appellant's family home. The Appellant's father was not at home at the time. The Appellant knew that he had seen the men before. They shouted abuse at the family. They called the Appellant's mother a filthy Roma and accused her of spying for the Serbs. They had been told that she had helped the Serbs during the war. These men then stabbed the Appellant's mother, brother and one sister, killing all three. The Appellant was spared, he believes, because of his young age and because he was not as dark skinned as the others. He felt angry and upset that he had not been able to protect his family. He somehow found himself lying in the road in front of the family home. It was there that his father found him when he returned. On learning what had happened, his father took him to report the killings to UNMIK. They spoke to UNMIK officers for about fifteen minutes. They were told that expert police officers would be sent to see what had happened. During the following five days they were at home but no officers came. The Appellant is not aware of any investigation since then. After the funerals of his mother and siblings, and five days after the killings, the Appellant's father took the Appellant and his remaining sister, Irma to Kubojn near Presheve. The family remained there for one month before moving to Macedonia where they felt they would be safer than in Presheve. However, a war then began between before the Immigration Judge, was not relevant, and that B had been overtaken by Hysi. Dizdari was lodged simply to highlight the significance that should be attached to the position statements and other papers of UNHCR. The Presenting Officer accepted that the finding that the Appellant would be at real risk of being persecuted on return does suggest that the Immigration Judge finds that there is no sufficiency of protection. However, she submitted that the Immigration Judge had not then fallen into error in law, and that he had been entitled to find that there was a sufficiency of protection based on the content of the Country Assessment and the USSDR. The Country Assessment states that KFOR and UNMIK are providing protection and it suggests that the situation is improving. Although UNHCR position statements were persuasive, so were Country Assessments. The Presenting Officer submitted that in the event that we were not with her, then the Immigration Judge ought to have gone on to consider internal relocation. In that case, Hysi was of relevance as were the UNHCR documents. Consideration and findings The Law and the Burden and Standard of Proof 27. In reaching our decision we have borne fully in mind the relevant law and immigration rules, including the Convention relating to the Status of Refugees and its Protocol, and the Handbook on Procedures and Criteria for Determining Refugee Status The Handbook Geneva, January By Article of the Refugee Convention the term shall apply to any person who:- to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or, owing to such fear, is unwilling to return to it." We remind ourselves that it is for an Appellant to satisfy us that there is a reasonable degree of likelihood, or real risk that, should he or she have to leave this country, he or she will be required to return to a country where he or she fears persecution for a Convention reason, that is to say, for reasons of race, religion, nationality, membership of a particular social group or political opinion. We apply throughout the lower standard of proof as referred to in R SSHD ex parte Sivakumaran Imm AR and the Court of Appeal in Karanakaran SSHD INLR We have also been guided by the judgment of the Court of Appeal in the case known as Ravichandran and Others Imm AR and in particular, we have borne in mind the definitions of persecution found there; the leading judgment having been given by Simon Brown LJ. We consider whether or not the Appellant is a person in need of international protection not only at the date of application and of the Respondent's decision, but also today, SSHD ex parte Adan INLR HL). It is recalled that Professor Hathaway's categorisation of human rights recognised by the International Bill of Rights has been approved by the UNHCR; by the UK IAT in Gashi and Nikshiqi by the Court of Appeal in Ravichandran and by the Court of Appeal in Haci Demirkaya INLR The House of Lords gave approval in general to Professor Hathaway's approach in the case of Horvath SSHD Imm AR also the Law of Refugee Status, Professor James Hathaway, Butterworths, Following Professor Hathaway's categorisation of human rights, Article is concerned with Category rights, a breach of which, will always amount to persecution under the Refugee Convention, assuming that it is by reason of one or more of the reasons set out in Article of the Refugee Convention. Article is concerned with Category rights, a breach of which would constitute persecution under the Refugee Convention except in circumstances constituting allowable derogation under Article and FindingsThe Refugee Appeal We concur with and adopt Mr Adler's submission in finding that the Immigration Judge materially erred in law in failing to place the relevant facts of the Appellant's claim within the context of his earlier findings and within the context of all the background evidence. Whilst it is arguable that in finding the Appellant to be at real risk on return he had found him to be a refugee; as Dr Storey states when ordering reconsideration, although he can be criticized for so doing, it is nevertheless sufficiently clear that he did not find that there was a lack of state protection. We find that whilst the Immigration Judge was entitled to rely upon the Country Assessment and the USSDR, it was also necessary to apply an analytical mind to these documents, not merely because they had been the subject of challenge. The first in the form of research analysis from IAS, and the fact that the sources in the Country Assessment relate to events of The second because it related to the year It was also necessary to consider them both together with, and in contrast to, the UNHCR position statements. He failed to conduct these exercises or any of them. Further, we find that the Immigration Judge erred in failing to into the pot', when considering and assessing sufficiency of protection, the clear views of the UNHCR between
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Citation Codes
Equivalent Citations
citation codes
Judges
  • R Chalkley Immigration Judge C Jarvis Immigration Judge before he was released. He then applied for asylum in Croydon on March On January the Respondent refused to recognize the Appellant as a refugee, but granted the Appellant exceptional leave to remain in the UK until February the day before his eighteenth birthday. On January the Appellant applied for further leave and that application was refused on May for the reasons set out in a letter of the same date. In brief the Respondent decided not to treat the application as a fresh claim for asylum as he considered that there were no new issues raised that differed significantly from those raised in the initial asylum application. The Respondent did not take issue with the Appellant's account but considered that as he was able to speak Albanian and has fairer skin than some Roma; he would be less distinguishable than them as being a member of a minority group and therefore less at risk on return. He took the view that interference with the Appellant's private life pursuant to Article ECHR would not be disproportionate. The Appellant appealed to an Immigration Judge and his appeal was dismissed on refugee and human rights grounds and ECHR), by Mr P A Grant-Hutchison in a determination issued on July The Appellant applied for an order for reconsideration of the Immigration Judge's decision. That application was considered and granted by Senior Immigration Judge Dr H H Storey on August He found that it was arguable that there had been a material error of law in that the Immigration Judge had misdirected himself in law in relation to the question whether there is a sufficiency of protection available to the Appellant following the guidance of the court in Horvath v SSHD INLR HL. In particular, it is arguable that the Immigration Judge fell into error in misapprehending the documentary evidence, including that from the UNHCR, giving insufficient weight to the latter, leading to findings that are against the weight of the evidence and conclusions in relation to the protection issue that are unsustainable. We remind ourselves that when hearing a case by way of reconsideration, the Tribunal must first decide whether or not the determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted. We have before us all the documentary evidence that was before the Immigration Judge, including background reports from the CIPU: April Country Assessment and IAS Research Unit Analysis of an extract thereof; UNHCR position and other papers letter UNHCR November on return of perceived Serb collaborators; statements of the Appellant; payslips and letters from employers. We also have before us a number of cases Appellant S v MIMA INLR Hysi v SSHD EWCA Civ B(Serbia and Montenegro-Kosovo) UKIAT Ardian Dizdari UKIAT December of the Appellant's CaseThe Findings of the Immigration Judge The Immigration Judge found that the Appellant, born on February is a citizen of Serbia and Montenegro, from Prizren, Kosovo, and is of mixed ethnicity in that his mother was a Serb Roma and his father is ethnic Albanian. The Appellant had two sisters and a brother. He found that the Appellant and his account were to be regarded as credible. us, the Presenting Officer confirmed that credibility had not been in issue in the past and that it was not in issue now. The Immigration Judge did not recite any other specific findings of primary fact, and we therefore set these out in brief here. The Appellant and his family experienced discriminatory treatment from time to time, including insults and abuse due to their mixed origins, from both Serbs and Albanian Kosovans. In the early hours of February three Kosovan Albanian men came to the Appellant's family home. The Appellant's father was not at home at the time. The Appellant knew that he had seen the men before. They shouted abuse at the family. They called the Appellant's mother a filthy Roma and accused her of spying for the Serbs. They had been told that she had helped the Serbs during the war. These men then stabbed the Appellant's mother, brother and one sister, killing all three. The Appellant was spared, he believes, because of his young age and because he was not as dark skinned as the others. He felt angry and upset that he had not been able to protect his family. He somehow found himself lying in the road in front of the family home. It was there that his father found him when he returned. On learning what had happened, his father took him to report the killings to UNMIK. They spoke to UNMIK officers for about fifteen minutes. They were told that expert police officers would be sent to see what had happened. During the following five days they were at home but no officers came. The Appellant is not aware of any investigation since then. After the funerals of his mother and siblings, and five days after the killings, the Appellant's father took the Appellant and his remaining sister, Irma to Kubojn near Presheve. The family remained there for one month before moving to Macedonia where they felt they would be safer than in Presheve. However, a war then began between before the Immigration Judge, was not relevant, and that B had been overtaken by Hysi. Dizdari was lodged simply to highlight the significance that should be attached to the position statements and other papers of UNHCR. The Presenting Officer accepted that the finding that the Appellant would be at real risk of being persecuted on return does suggest that the Immigration Judge finds that there is no sufficiency of protection. However, she submitted that the Immigration Judge had not then fallen into error in law, and that he had been entitled to find that there was a sufficiency of protection based on the content of the Country Assessment and the USSDR. The Country Assessment states that KFOR and UNMIK are providing protection and it suggests that the situation is improving. Although UNHCR position statements were persuasive, so were Country Assessments. The Presenting Officer submitted that in the event that we were not with her, then the Immigration Judge ought to have gone on to consider internal relocation. In that case, Hysi was of relevance as were the UNHCR documents. Consideration and findings The Law and the Burden and Standard of Proof 27. In reaching our decision we have borne fully in mind the relevant law and immigration rules, including the Convention relating to the Status of Refugees and its Protocol, and the Handbook on Procedures and Criteria for Determining Refugee Status The Handbook Geneva, January By Article of the Refugee Convention the term shall apply to any person who:- to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or, owing to such fear, is unwilling to return to it." We remind ourselves that it is for an Appellant to satisfy us that there is a reasonable degree of likelihood, or real risk that, should he or she have to leave this country, he or she will be required to return to a country where he or she fears persecution for a Convention reason, that is to say, for reasons of race, religion, nationality, membership of a particular social group or political opinion. We apply throughout the lower standard of proof as referred to in R SSHD ex parte Sivakumaran Imm AR and the Court of Appeal in Karanakaran SSHD INLR We have also been guided by the judgment of the Court of Appeal in the case known as Ravichandran and Others Imm AR and in particular, we have borne in mind the definitions of persecution found there; the leading judgment having been given by Simon Brown LJ. We consider whether or not the Appellant is a person in need of international protection not only at the date of application and of the Respondent's decision, but also today, SSHD ex parte Adan INLR HL). It is recalled that Professor Hathaway's categorisation of human rights recognised by the International Bill of Rights has been approved by the UNHCR; by the UK IAT in Gashi and Nikshiqi by the Court of Appeal in Ravichandran and by the Court of Appeal in Haci Demirkaya INLR The House of Lords gave approval in general to Professor Hathaway's approach in the case of Horvath SSHD Imm AR also the Law of Refugee Status, Professor James Hathaway, Butterworths, Following Professor Hathaway's categorisation of human rights, Article is concerned with Category rights, a breach of which, will always amount to persecution under the Refugee Convention, assuming that it is by reason of one or more of the reasons set out in Article of the Refugee Convention. Article is concerned with Category rights, a breach of which would constitute persecution under the Refugee Convention except in circumstances constituting allowable derogation under Article and FindingsThe Refugee Appeal We concur with and adopt Mr Adler's submission in finding that the Immigration Judge materially erred in law in failing to place the relevant facts of the Appellant's claim within the context of his earlier findings and within the context of all the background evidence. Whilst it is arguable that in finding the Appellant to be at real risk on return he had found him to be a refugee; as Dr Storey states when ordering reconsideration, although he can be criticized for so doing, it is nevertheless sufficiently clear that he did not find that there was a lack of state protection. We find that whilst the Immigration Judge was entitled to rely upon the Country Assessment and the USSDR, it was also necessary to apply an analytical mind to these documents, not merely because they had been the subject of challenge. The first in the form of research analysis from IAS, and the fact that the sources in the Country Assessment relate to events of The second because it related to the year It was also necessary to consider them both together with, and in contrast to, the UNHCR position statements. He failed to conduct these exercises or any of them. Further, we find that the Immigration Judge erred in failing to into the pot', when considering and assessing sufficiency of protection, the clear views of the UNHCR between
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AA037512005 (unreported)

Smart Summary

Factual and Procedural Background

The Appellant, a national of Serbia and Montenegro from Kosovo, claims a well-founded fear of persecution and serious harm upon return to Kosovo due to his mixed ethnicity and family background, specifically being the child of a Serb Roma mother and an ethnic Albanian father, with the family accused of collaboration with Serbs. He arrived in the United Kingdom as a separated child in March 2002 and applied for asylum shortly thereafter. The Respondent initially refused refugee status but granted exceptional leave to remain until shortly before the Appellant’s eighteenth birthday. A subsequent application for further leave was refused in May 2005 on the basis that no new significant issues were raised and on the view that the Appellant was less distinguishable from the majority population and thus less at risk.

The Appellant appealed the refusal on refugee and human rights grounds, but the appeal was dismissed by an Immigration Judge in July 2005. The Appellant applied for reconsideration, which was granted by a Senior Immigration Judge who found arguable material errors of law, particularly relating to the assessment of protection available in Kosovo and the weight given to documentary evidence including UNHCR reports. This led to the present determination and reasons issued in November 2005.

Legal Issues Presented

  1. Whether the Immigration Judge erred in law by misapprehending the documentary evidence regarding the sufficiency of protection available to the Appellant upon return to Kosovo.
  2. Whether the Appellant qualifies as a refugee under the 1951 Refugee Convention due to a well-founded fear of persecution on Convention grounds.
  3. Whether there is a reasonable internal relocation alternative within Kosovo or Serbia and Montenegro for the Appellant.
  4. Whether return of the Appellant would breach his rights under Articles 2 and 3 of the European Convention on Human Rights (ECHR).

Arguments of the Parties

Appellant's Arguments

  • The Immigration Judge failed to properly consider the UNHCR position papers and the specific circumstances of the Appellant’s claim, including the past failure of protection by authorities despite the presence of UNMIK and KFOR.
  • The Immigration Judge’s reliance on general Country Assessments and USSDR reports, which related to earlier years, was irrational without adequate analytical consideration and contrast with UNHCR reports.
  • The Appellant falls within UNHCR protection categories due to his mixed ethnicity and family’s perceived collaboration with Serbs, warranting international protection.
  • The Immigration Judge should have considered internal relocation but failed to do so appropriately, especially in light of the guidance from the case of Hysi.

Respondent's Arguments

  • The Immigration Judge’s findings that there was a sufficiency of protection were entitled and reasonable based on the Country Assessment and USSDR, which suggested improving security conditions.
  • While the UNHCR position statements were persuasive, the Country Assessments were equally valid and supported the conclusion of sufficient protection.
  • If the Tribunal disagreed, the Immigration Judge should have considered internal relocation, with Hysi and UNHCR documents being relevant to that assessment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Horvath v SSHD [2000] INLR 239 HL Guidance on sufficiency of protection and state’s ability or willingness to protect refugees from harm by non-state actors. Applied to find that authorities in Kosovo were unable to provide sufficient protection to the Appellant, particularly given past failings to investigate attacks on his family.
Hysi v SSHD [2005] EWCA Civ 711 Consideration of internal relocation and the reasonableness of requiring concealment of ethnicity for safety. Used to assess internal relocation issue, concluding it was unreasonable to require the Appellant to conceal his mixed ethnicity to be safe.
R -v- SSHD ex parte Sivakumaran [1988] Imm AR 147 Standard of proof for refugee status appeals (real risk or reasonable likelihood). Applied to confirm the lower standard of proof required in assessing the Appellant’s claim.
Karanakaran -v- SSHD [2000] INLR 122 Standard of proof and assessment of well-founded fear of persecution. Referenced in applying the standard of proof and assessing the Appellant’s fear of persecution.
Ravichandran and Others [1996] Imm AR 97 Definitions of persecution under refugee law. Guided the court’s understanding of persecution relevant to the Appellant’s claim.
R -v- SSHD ex parte Adan [1998] INLR 325 HL Assessment of refugee status at time of decision and at present. Applied to ensure the Appellant’s protection needs were assessed as of the date of decision.
Chahal v UK [1997] 23 EHRR 413 Protection against torture and inhuman or degrading treatment under Article 3 ECHR. Applied to find a real risk of ill-treatment if the Appellant were returned.
Robinson v SSHD [1997] CA Imm AR 554 Reasonableness of internal relocation considering concealment of identity. Referenced in evaluating whether internal relocation was reasonable for the Appellant.

Court's Reasoning and Analysis

The court began by reviewing the relevant legal framework, including the 1951 Refugee Convention, its 1967 Protocol, and the UNHCR Handbook, emphasizing the lower standard of proof applicable to refugee claims. It noted the Appellant’s credible account of persecution and serious harm suffered by his family due to their mixed ethnicity and perceived political alignment.

The court found that the Immigration Judge erred materially by failing to properly integrate and analyze all relevant evidence, particularly the UNHCR position papers from 2002 to 2005, alongside the Country Assessments and USSDR reports, which related to earlier years and did not adequately reflect the Appellant’s specific circumstances. The Immigration Judge’s conclusion that there was sufficient protection available in Kosovo was held to be unsustainable because it did not account for the Appellant’s particular vulnerability and the documented failure of authorities to protect him and his family in the past.

The court acknowledged improvements in the security situation but found the overall context remained fragile and volatile, leaving minority groups such as the Appellant’s at real risk of persecution. It applied the principles from Horvath to conclude that the authorities, including UNMIK and KFOR, were unable to provide adequate protection.

Regarding internal relocation, the court considered the guidance from Hysi and Robinson, concluding that it would be unreasonable to expect the Appellant to relocate within Kosovo or to Serbia and Montenegro, as this would require concealing his ethnicity and expose him to further risks. The UNHCR’s position papers supported this conclusion by indicating that internal relocation was not a reasonable option for persons in the Appellant’s situation.

On human rights grounds, the court found that the Appellant faced a real risk of treatment contrary to Articles 2 and 3 of the ECHR if returned, including torture or inhuman and degrading treatment, applying the standards from Chahal and Ireland v UK. The Appellant did not pursue Article 8 claims before the court.

Holding and Implications

The court ALLOWED the appeal against the Respondent’s decision to refuse refugee status and leave to remain on human rights grounds. It substituted the original decision with one recognizing the Appellant as a refugee entitled to protection under the 1951 Refugee Convention and Articles 2 and 3 of the ECHR.

The direct effect of this decision is that the Appellant is entitled to remain in the United Kingdom with refugee status and protection from removal to Kosovo. The court did not establish new legal precedent but reaffirmed and applied established principles concerning sufficiency of protection, internal relocation, and human rights protections in the context of Kosovo’s complex security environment.

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AA037512005 (unreported)

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AA037512005 (unreported)
(Nov 22, 2005)