Tribunal decisions

The decision

KH
Heard at Field House

IN (Kosovo - Ethnic Serb) Serbia and Montenegro [2003] UKIAT 00161
Date: 26 November 2003

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

02 December 2003........

Before:

Mr G Warr (

Between
Chairman)
Mr R Hamilton
Secretary of State for the Home Department

APPELLANT

And

RESPONDENT

DETERMINATION AND REASONS

1. The Secretary of State appeals the determination of an Adjudicator (Mr C J Hodgkinson) who allowed the appeal of a citizen of Serbia (hereinafter referred to as the appellant) from a decision of the Secretary of State to refuse his application for asylum. The removal directions are to Kosovo where it appears the appellant has been residing from an early age.

2. The appellant was represented before us as he had been before the Adjudicator by Mr T Dedezade of Counsel instructed by Vahib, solicitors. Mr G Phillips appeared for the Secretary of State.

3. The Adjudicator records in paragraph 4 of his determination that the appellant had been born in Bujanovac in Serbia and that the appellant had moved to Kosovo in 1978 where he had lived with relatives in order to attend an Albanian school. His family had joined him 1984. He had supported the DLK and had distributed leaflets for them. In 1990 he had undertaken military service. On 10 September 1997 Serbian policemen had come to the family home. The appellant had subsequently been interrogated at a police station about a gun which he had allegedly bought from someone he was told to produce the weapon but as he had no gun he was unable to do so and decided to go into hiding. He had participated in student demonstrations in Prishtina in March 1998. He was told to report to the police following this. He then made arrangements to leave the country, arriving on 15 April 1998.

4. The Home Office was not represented at the proceedings before the Adjudicator who heard the appeal on 11 April 2003. he had before him the determination of an appeal by the appellant's brother. In that appeal a letter from the UNHCR had been put before the Adjudicator which indicated that "ethnic Albanians would be refused entry to Kosovo if they did not originate from there and, if they entered Kosovo illegally, would be regarded as illegal immigrants and would not be entitled to benefits".

5. The Adjudicator noted some inconsistencies in the appellant's account but he did not find that any of the inconsistencies went to the core of the appellant's credibility. One matter is that the appellant said that he had gone to Kosovo in 1982 rather than 1978 (compare paragraphs 4 and 23 of the determination).

6. The Adjudicator was satisfied – indeed it is not really in dispute – that the appellant was an ethnic Albanian from southern Serbia. There was a summons issued in southern Serbia against the appellant which the Adjudicator accepted was a genuine document. If the appellant was returned to southern Serbia the Adjudicator felt there was a real risk he would be detained and ill-treated. The appellant was not aware of the purpose of the summons although the Adjudicator considered it more likely that the summons related to the appellant's DLK activities. The Adjudicator was more concerned about the appellant receiving a significant penalty for an offence not committed by him than the overall current situation in Serbia which the Adjudicator considered to have improved.

7. The Adjudicator allowed the appeal because he felt it would not be feasible for the appellant to be returned to Kosovo on the basis that he was from Serbia. The removal directions were for Kosovo and the Adjudicator considered he would be refused entry there. The Adjudicator considered that the appellant's return to Serbia would involve a breach of the Refugee Convention. This was because he would be detained on the summons and risk ill-treatment. He also allowed the appeal under Article 3 of the Human Rights Convention.

8. Mr Phillips relied on the grounds of appeal and submitted that the appellant had on any view been in Kosovo from an early age – from 1978 on one account. There was a sufficiency of protection for ethnic minorities in Kosovo. Reference was made to the October 2002 and October 2003 Home Office Country Assessments.

9. Counsel submitted that the appeal should be dismissed. It was not clear whether the appellant had gone to Kosovo in 1982 or 1978 but he did not originate from Kosovo. He was born in Serbia. On the basis of the UNHCR letter he would be refused entry. The Adjudicator had found that there was a genuine summons out for the appellant. As an alternative to dismissing the appeal, it should be remitted.

10. Mr Phillips submitted that the UNHCR letter referred to originating from Kosovo. The appellant had spent his formative years in Kosovo. He had resided there for a long period of time. He was not a recent or new arrival. It was not a requirement that he had to be born in Kosovo. He would be provided with appropriate documentation on his return. There was no challenge to the appellant's credibility.

11. Counsel acknowledged that the October 2003 Country Assessment did not assist him. Reference was made to paragraph 6.42 of it.

12. At the conclusion of the submissions we reserved our determination. The removal directions in this case are to Kosovo where the appellant had lived from an early age – perhaps from as early as seven if he went there in 1978. In any event, he was clearly an established resident in Kosovo. We can understand why Counsel candidly admitted that the October 2003 Assessment did not assist him. For example, it is recorded in paragraph 6.44 that on 1 July 2003, "All Albanian political leaders in Kosovo signed up to a statement urging ethnic Serbs to return to their former homes in Kosovo." However, even on the October 2002 Country Assessment it was apparent that the position for Kosovo Serbs had improved enormously – for example see paragraph 6.27 indicating that freedom of movement had improved and that Kosovo Serbs were increasingly able to drive unescorted through Kosovo Albanian areas. There were still dangers and the situation varied considerably across the province. Action was being taken to improve the position of ethnic minorities and that appears, on the latest position to have borne fruit.

13. The Adjudicator relied on material that was not before him but had been before another Adjudicator. This material has not been placed before us. It is not satisfactory for appeals to be conducted in this way. We see no evidence before us to justify the proposition that a family resident, and long resident, in Kosovo would be refused admission. The appellant had been a resident of Kosovo from either 1978 or 1982 and his family joined him in 1984. Given the strong impetus to encourage and promote returns we find it inconceivable that the fact that the appellant was not born in Kosovo but had resided there for a considerable part of his life would result in difficulties for him on return. We do not believe that the UNHCR letter can be read in this way.

14. The Adjudicator considered the risks to the appellant in Serbia but he is not to be returned there. He is to be returned to Kosovo where as we have said, the situation has vastly improved for Serbs. The appellant will, we are satisfied, be returned with appropriate documentation. We see no real prospect of him being returned from Kosovo to the United Kingdom.

15. For the reasons we have given, the appeal of the Secretary of State is allowed and the decision of the Adjudicator is reversed.

G Warr
Vice President