[2004] UKIAT 165
- Case title: MS (Activity in war, Persecution, Discrimination)
- Appellant name: MS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Croatia
- Judges: Miss K Eshun, Mr N W Renton, Dr J O de Barros
- Keywords Activity in war, Persecution, Discrimination
The decision
H-DN-V2
Heard at Field House
Ms (Activity in war – Persecution –
Discrimination) Croatia [2004] UKIAT 00165
On 30 March 2004
Dictated 21 April 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
15 June 2004
Before:
Miss K Eshun (Chairman)
Mr N W Renton
Dr J O de Barros
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation:
For the Appellant: Mr M Malik of Sutovic and Hartigan Solicitors
For the Respondent: Mss J Sigley, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, a citizen of Croatia, appeals with leave of the Tribunal against the Determination of an Adjudicator (Mrs A K Simpson) dismissing his appeal against the decision of the Respondent made on 30th November 2000 to refuse him leave to enter and asylum.
2. The Appellant arrived in the United Kingdom on 28th January 1999 and claimed asylum on arrival. His wife, born on 14th March 1952 is a dependant on his application. His son born on 3rd December 1981 had a separate appeal, which was heard on 11th November 2002 with his appeal.
3. Grounds of Appeal against the Adjudicator’s Determination were lodged on 15th January 2003. Leave was sought primarily in view of the Tribunal’s recent decision in S and K [2002] UKIAT 056113 in relation to ethnic Serbs from Croatia being currently appealed with permission being sought from the Tribunal to appeal to the Court of Appeal. Leave was being sought pending the decision of the Court of Appeal in S and K. It was also argued in the Grounds of Appeal that the Adjudicator erred in law in concluding that economic discrimination cannot amount to persecution under the Refugee Convention. Leave was granted to appeal to the Tribunal on 4th February 2003. Since then S and K has been decided and is now known as SK. We note that this decision was not relied on by either party.
4. The Appellant is an ethnic Serb, born in Branimirovac. In 1962 he moved to Osijek in eastern Slovenia. His wife was born in the village of Tenja, about 5 kilometres from Osijek. They married on 3rd October 1970. He is an Orthodox Christian. He completed military service between February 1969 and July 1970. Subsequently he obtained employment making agricultural machinery. His wife worked in a confectionary factory. As a result of political instability in Croatia, the Appellant was dismissed in May 1991 and his wife was dismissed in July 1991.
5. In September 1991 the battle for the village ended. When the Yugoslav army commanders discovered that the Appellant had served in a tank regiment during his military service, he was conscripted into their forces. He served as a private in a tank regiment, although he had command of the four-man tank. When the Serbian army withdrew on 20th May 1993, the Appellant was promoted to lieutenant and was left in command of 50 men and ten tanks. He remained in that position until he was demobilised under the Dayton Agreement in May 1995.
6. The Appellant feared for his family’s safety, from Croatians who were returning to his village. On 26th January 1998 he took the family to Norway where he claimed asylum. During their stay in Norway he discovered that his paternal cousin, Cerdo Sterbac, a colonel in the Yugoslav army who had been in command of a brigade, had been tried in absentia for war crimes and sentenced to twenty years imprisonment. Following refusal of his asylum claim, the Appellant and his family returned to Croatia on 11th October 1998. Although the Appellant had owned a flat in Osijek, this had been taken over by a Croatian family in 1991. Attempts to reclaim the flat were unsuccessful. He and his family had to live with his widowed sister-in-law, Branka, in Tenja.
7. He was unable to find work in Osijek. He considered moving to the Federal Republic of Yugoslavia, particularly since his daughter, married to a Serbian citizen, lived in Belgrade but although Croatian Serbs were allowed to travel in and out of the country, they were not allowed to settle there. He decided that there was no future for his family Croatia. In January 1999 he and his family travelled by car to Zagreb airport and from there came to the United Kingdom.
8. He last spoke to his sister in-law, Branka, in January 2002. She told him that his cousin was now in prison in Croatia. Although he had not been involved in any war crimes, he believed that his would not stop the Croatian authorities from blaming him for the deaths of Croatian citizens. He feared that if he returned to Croatia he would be arrested and probably imprisoned, although not for such a long period as his cousin.
9. The Adjudicator found the Appellant to be a credible and compelling witness and accepted his account. She found that there was nothing in the evidence before her to suggest that the Appellant had any individual responsibility for war crimes. In the light of the objective evidence before her she found that the Appellant was not at real risk of prosecution for war crimes. She noted that the UNHCR was actively promoting the return of Serbs to Croatia and she was certain that the UNHCR would not encourage return if persuaded that ethnic Serbs faced persecution such as would engage the Refugee Convention. She was therefore not persuaded that the Appellant’s military service and his relationship with his cousin, a convicted war criminal, sufficed to create a real risk of persecution by the local Croat population. The Adjudicator had relied on S and K in which the IAT took the view that in general, unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either the Refugee or European Convention.
10. She looked at the third limb of the Appellant’s claim, which related to the fact that he would, if returned to Croatia, be homeless. She noted that the Croatian government has undertaken to assist returnees in their reintegration by providing basic assistance depending on monthly income for a six month period, including cash grants, medical coverage and other legal and social benefits. Although she acknowledged that there was discrimination, particularly as regards housing and employment, she took the view that economic hardship did not, of itself, entitle a person to be regarded as a refugee.
11. At the hearing Mr Malik made an application to vary the grounds of appeal on the basis that there was a delay by the Secretary of State in deciding the Appellant’s asylum application and the consequences of this delay should prevent the Secretary of State removing the Appellant from the United Kingdom. On looking through the file, we saw that permission to vary the grounds had been granted by a differently constituted Tribunal in August 2003. Counsel made a new application to adjourn the hearing in view of the imminent decision by the Court of Appeal in the case of Janjanin in which the issue under consideration was whether delay in Croatian cases ought to apply in an Article 8 claim. We refused Counsel’s application to adjourn the hearing.
12. Miss Sigley submitted three decided cases, 24 M (Croatia) starred, 16 J and K.
13. Mr Malik sought to rely on unreported cases that were contained in the Appellant’s bundle of documents. Miss Sigley objected on the basis that Mr Malik had not complied with the President’s Practice Direction issued on 19th May 2003. Item 5 of the Practice Direction says that an application for permission to rely on an unreported determination must (i) include a full transcript of the determination, (ii) identify the proposition for which the Determination is to be cited, (iii) must identify that that proposition is not found in any reported determination of the Tribunal, and has not been superseded by a decision of a higher authority, and (iv) must be accompanied by a summary analysis of all other decisions of the Tribunal, and all available decisions of a higher authority, relating to the same issue, promulgated in the period beginning six months before the date of the decision proposed to be cited and ending two weeks before the date of the hearing. Following consideration of the matter the Tribunal ruled that Mr Malik had not complied with Item 5 of the Practice Direction, and refused him permission to rely on the unreported decisions.
14. Mr Malik said that there were two grounds on which the Appellant’s fear of persecution is based. Firstly, his Serb ethnicity and secondly, as somebody who was a captain in the Serb army. He said that the Secretary of State did not give consideration to the second ground. The reasons for refusal letter, which is dated 3rd November 1999, dealt mainly with the general situation of Serbs and paragraphs 12 and 13 asserted that the Appellant’s motivation for coming to the United Kingdom was economic.
15. Mr Malik said that the Appellant was interviewed on his arrival in the United Kingdom. At A4 of that interview the Appellant was asked “what has prompted you to leave now and not in 1991?” The Appellant replied “I thought that Yugoslavia would remain intact and not split up completely. I was in the war until the end. From 28th June 1991 until the Dayton Accord in 1995 I was in the war”. At A10 when he was asked if there was anything he wished to add to or change what he had said the Appellant’s reply was “Because of my involvement in the army and my cousin was a high ranking officer in the army, it means that we cannot feel safe in Croatia”. Mr Malik said that these two answers should have raised concerns with the Secretary of State. He said that the Appellant then sent a witness statement to the Secretary of State, which is at Annex C2 of the Home Office bundle. Although the witness statement was dated 13th January 2000, for reasons not known, it was not forwarded to the Secretary of State until 4th August 2000. At C5 of that witness statement the Appellant said that he was a private although he had command of four men in the tank that they used. When the Serb army withdrew as of 20th May 1993 he was left in command of 50 men and 10 tanks. He was promoted to lieutenant. He was comfortable with the responsibility as the men who would serve him were the men he had been fighting with for many months. He stayed in that position until he was demobilised under the Dayton Agreement in May 1995. Mr Malik said that although the statement was sent to the Secretary of State before the Secretary of State made his decision on 30th November 2000, there was no reference by the Secretary of State to this particular aspect of the Appellant’s claim. Furthermore, although the Secretary of State’s decision was dated 30th November 2000, the PF1 giving notice of the Secretary of State’s decision was not sent to the Appellant’s solicitors until 19th November 2001.
16. Mr Malik reminded us that the Appellant arrived in the United Kingdom on 28th January 1999. At the time of his arrival there was a Home Office Bulletin, 2/99 in place. Paragraph 10.6 of the Bulletin contained advice to caseworkers and set out two bullet points. The first bullet point said “There is no ‘group policy’ towards Serbian asylum seekers from Croatia and each case is determined on its own merit”. The second said “The general presumption is that Serbs (or those with a mixed Serbian background through parents or marriage) from the war affected area of eastern Slovenia, Baranja and Sirmrurn, the Krajina and western Slovenia, will be able to substantiate a claim to asylum on the grounds of their ethnicity. Mr Malik also referred us to the same Bulletin, paragraph 9.1 of which said, that “during the war in Croatia in 1991, the Croatian and Serbian sides had various militias in the field as well as other irregular groups. It is likely that almost all these groups were responsible for atrocities”. Mr Malik referred us to yet another Bulletin 4/99, which stated that caseworkers and Presenting Officers would need to be aware of the recent allowed appeal in the case of Kekus (K1002445). It said that “at the appeal hearing, representatives acting for Kekus, an ethnic Serb presented an impressive “expert opinion” paper on the position of ethnic Serbs in Croatia as well as an OSCE Report dated May 1999. These showed that ethnic Serbs are very likely to suffer persecution and discrimination based on ethnicity.” The Bulletin referred to an “expert opinion” which, Mr Malik said was the expert opinion of Karphammar, the former head of the legal unit to the OSCE Mission to Croatia, which was referred to by an Adjudicator in the case of Milan Cicic heard on 14th August 2000. In Cicic the Adjudicator noted that the validity of the Karphammar Report had been accepted by the Home Office Country Information and Policy Unit and had been referred to and accepted as giving an accurate and factual account of the situation in the region.
17. Mr Malik said that the upshot of all this evidence is that if the Secretary of State had considered the Appellant’s claim properly and fully, taking into account his rank in the Serb army, the asylum interview record of his fears and the basis of his return, and the presumption in the Home Office Bulletins, the Appellant would have had a good prospect of being granted exceptional leave to remain or full refugee status. He said that those who served with the Appellant in a lower position in the army were recognised as refugees. In his opinion the Appellant’s claim was not given the proper consideration that it deserved. In support of his argument Mr Malik relied on paragraph 31 of the Tribunal’s decision in 24 M (Croatia) starred. In that paragraph the Tribunal said that there was a good prospect that at the time of entry if a decision had been made then, the Claimant would have been granted some form of leave to remain. The Tribunal were prepared to assume that a government committed to speedy decision-making could reasonably have made a decision within a year. Mr Malik said that the Claimant in 24 M entered the UK in October 1999, eight months after this Appellant. Had this Appellant’s claim been considered within the reasonable period of a year, he would have had a good prospect at the time of being granted some form of leave, that is, exceptional leave to remain for four years, not just on his ethnicity but also on his activity in the army and his rank as a captain. This case he said comes into the Shala exception. He also relied on the case of Mahmood for his argument that those who have a legitimate claim to enter such as this Appellant ought to be considered differently.
18. Mr Malik then went on to address us as to how the delay has affected the Appellant’s private life. Mr Malik referred us to paragraph 18 of the Tribunal’s decision in 16 J wherein the Tribunal said that as has been emphasised in Nhundu and Chiwera (01/TH/0613), the right protected under Article 8 is a composite one and elements of private and family life required to be considered cumulatively. Mr Malik said that the delay denied the Appellant the strong presumption that he would be granted exceptional leave to remain and thereafter would have been able to apply to be granted indefinite leave to remain. He said that there was an additional delay in the service of the notice by a year and the delay in the Appellate system.
19. Mr Malik said that the Appellant lost property in Croatia and has no chance of regaining it. On return to Croatia he will be at the mercy of charitable organisations. He referred us to objective information on conditions in Croatia. The US State Department Report on Human Rights Practices in 2003 states that arrests of ethnic Serbs for war crimes continued but decreased throughout the year. In some cases of arrest on war crimes charges, the subject was released a few days after charges were dropped. However, in other cases persons were detained for long periods. Over the last few years, several ethic Serb defendants convicted in absentia or at non-transparent trials continued to be held in detention for extended periods while their appeals progressed slowly through the over-burdened judicial system. The OSCE reports that the outcomes of war crimes prosecutions appeared to be largely determined by the ethnic identity of both the defendant and the victim. According to the Human Rights Watch, Croatia Report the Croatian government must reform its laws and policies to ensure that returnees have an opportunity to repossess their homes or obtain compensation for lost property, and equal access to employment and pension benefits. The Report said that until the government does so, hundreds of thousands of Croatian Serbs would be unable to realise their right to return home.
20. The US State Department Report also highlights an OSCE Report on several ethnically related incidents where perpetrators were charged with misdemeanour offences. In a majority of cases police and prosecutors were reluctant to identify the cases as ethnic discrimination. Mr Malik said that the picture painted by the reports makes the Appellant more vulnerable. The discrimination at local level continues. The OSCE Report shows that war crime trial is not dead and buried. Therefore the Appellant would be in a more vulnerable position were he to be returned to Croatia.
21. In reply Miss Sigley said that the Tribunal is not in a position to grant the appellant asylum. The Tribunal has to decide whether or not the Appellant qualifies for asylum or whether return would breach the UK’s obligation under the Human Rights Convention. She accepted that the Appellant has established a private life since his arrival in the UK.
22. Miss Sigley said that the determinations of Adjudicators allowing the appeals of three people the Appellant knew in the army do not support a blanket proposition that the Secretary of State granted exceptional leave to remain to all Serbs from Croatia. The Tribunal in 24 M said that removal of that Claimant would not be disproportionate. At paragraph 38 of 16 J the Tribunal held that in conducting the balancing exercise under Article 8, the existence of any unreasonable period of delay is ordinarily a relevant factor that it will rarely be a decisive factor unless accompanied by other special circumstances, which disclose particular prejudice to a Claimant. The Tribunal then listed three pre-conditions which should underpin the Shala point and these are (a) the fact that the Appellant had a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined; (b) the fact that, had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain; (c) the fact that his private or family life had only become significantly established as a result of the time spent by him in the UK where he formed a relationship. Accordingly possession of ELR, if it had been granted when it should have been, would thereby have given him the ability to apply from within the UK for a variation of leave on the grounds of his relationship. Miss Sigley argued that point (c) is absent in this case. Whether the Appellant has established a private life in the UK from 1999 to now, the Tribunal will still have to consider whether it would be disproportionate to remove him. The Tribunal in 24 M paid deference to the Secretary of State at paragraph 28. It said that the Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances.
23. As to the Appellant’s fear of prosecution for war crimes, and his inability to regain possession of his home, Miss Sigley referred the Tribunal to the decision in DK. We have previously been referred to paragraph 89 of that decision by Mr Malik wherein the Claimant’s Counsel had referred to a letter which stated that those who return as failed asylum seekers do not receive the benefit of UNHCR assistance prior to return, or temporary accommodation from the ODPR, and it is highly unlikely that any exceptional humanitarian assistance would be available to DK from UNHCR. Miss Sigley referred us to paragraphs 92 and 93 of the same decision where the Tribunal found that DK would be entitled to the welfare rights of a Croatian citizen and that there was no evidence that Serbs suffered discrimination in that respect. Although there would be a level of hardship, it was not so significantly different from that rejected in S and K as to be sufficient to give rise to a breach of Article 3. The Tribunal went on to say that there was no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families, would be unavailable even if there were no ODPR temporary accommodation. Miss Sigley asked us to come to the same conclusion in this case.
24. As regards the Appellant’s activities in the war, Miss Sigley said that the Tribunal should not interfere with the Adjudicator’s findings in this respect. At paragraph 81 of DK the Tribunal noted that the position over war crimes prosecutions has not markedly changed; there are still trials in absentia, but that does not prevent a fresh trial upon arrest. Although Serbs faced discrimination in the frequency of arrest and prosecution, the Tribunal noted that the increase in arrests in 2003 still only affected a very small number of people. There is a trial process, which is not said to be unfair and there is an appeal system, which has led to some convictions being overturned. Miss Sigley therefore argued that it is not the case that the Appellant will be at risk of persecution on account of his activities in the war.
25. The Appellant’s appeal was prosecuted on three grounds:
(1) Delay in the processing of his asylum application denied him a presumption of the grant of some form of leave, namely, exceptional leave to remain for four years following which he could have had the opportunity of applying for indefinite leave to remain.
(2) His fear of prosecution for activities in the war and;
(3) The Appellant’s inability to regain possession of his property and the discrimination he might face on return to Croatia as an ethnic Serb.
26. The first ground of delay was predicated on the Court of Appeal’s decision in Shala. The Court of Appeal held that there were circumstances in which the delay on the part of the Secretary of State in dealing with the asylum claim was an exceptional feature which took the case outside the significant area of judgment which the Courts would allow him in balancing the conflicting interests of the proper maintenance of immigration control and interference with Article 8 rights. The exceptional feature in Shala was that the Appellant had a legitimate claim to enter because at the time he would have been likely to benefit from the Secretary of State’s policy of granting asylum to ethnic Albanians from Kosovo. Had the decision been made within a reasonable time, he would have been likely to have been granted some form of leave to remain and this would have enabled him to make an in-country application for a variation in his leave to stay as a spouse and the Secretary of State’s policy of requiring those who had no leave, to apply for entry clearance out of country, would not have applied, and the interference with family life would not have occurred. In our opinion the Tribunal in 16 J at paragraph 38 (iii) reiterated the three special features in Shala.
27. Taking the first exceptional feature in Shala, the question we ask is whether the Appellant had a legitimate claim to enter because at the time he would have been the likely beneficiary of the Secretary of State’s policy of granting asylum to an ethnic Serb from Croatia, had his claim been determined within a reasonable time. The case of 24 M Croatia starred decides that a reasonable time is within a year of an Appellant’s entry to the UK. This Appellant arrived in the United Kingdom in January 1999. The Secretary of State could reasonably have been expected to make a decision on his asylum application by January 2000. Although the Secretary of State’s reasons for refusal letter is dated 3rd November 1999, the relevant decision refusing to grant the Appellant leave to enter and asylum was made on 30th November 2000. This means that the delay was outside the reasonable period within which the Secretary of State could have made his decision.
28. In Shala the Secretary of State had a policy of granting asylum to ethnic Serbs from Kosovo. However, we find that there was no equivalent policy in force for ethnic Serbs from Croatia at the time of the Appellant’s entry. What we have are Bulletins in the form of advice to caseworkers in their consideration of applications by ethnic Serbs from Croatia. Bulletin 2/99 advised that there was no “group policy” towards Serbian asylum seekers from Croatia and that each case has to be determined on its own merits. There was however the general presumption that Serbs from the war affected areas including eastern Slovenia, from where the Appellant originates will be able to substantiate a claim to asylum on the grounds of their ethnicity. Bulletin 4/99 advised caseworkers and Presenting Officers the need to be aware of the recent allowed appeal of Kekus and also objective evidence, which showed that ethnic Serbs were very likely to suffer persecution and discrimination based on ethnicity. In this appellant’s case, his claim in his interview was wholly based on economic reasons, namely, the loss of his job and property. This was what led the Secretary of State to conclude that the appellant’s motivation for coming to the UK was economic. In the circumstances we are not in a position to assume that this particular Appellant would have received a favourable decision and thereby been granted some form of leave to remain, had his application been considered within a reasonable time, namely, within 12 months of his arrival.
29. The other special feature in Shala was that had he been granted some form of leave to remain, this would have enabled him to make an in-country application for a variation of his leave to remain as a spouse and the Secretary of State’s policy of requiring those who had no leave to apply for entry clearance out of country, would not have applied, and the interference with family life would not have occurred. In this Appellant’s case, it was argued that had the Appellant been granted some form of leave to remain, e.g. exceptional leave to remain for four years, he would then have been able to apply for the grant of indefinite leave to remain. The facts of this Appellant’s case are somewhat different from Shala. Shala had married someone who had no connection with Kosovo and who already had two children and who had already been granted refugee status in this country. Therefore an out of country application as a spouse would have caused an interference, however temporary, to his family life. In this particular case, the Appellant arrived in the UK with his wife and son. Therefore refusal to grant him some sort of leave to remain in the UK poses no interference with his family life, as he and his wife would be removed together. We accept that he has established a private life as a result of time spent in the UK but we are of the view that his private life cannot be looked at in isolation to his family life. We do not know the outcome of his son’s asylum appeal. Nevertheless any interference with their family and private lives would not, in our opinion, be disproportionate to the effective maintenance of immigration control. Furthermore, as it is speculative to assume that he would have been granted some sort of leave to remain, it is also speculative that he would have been in a position to apply for indefinite leave to remain.
30. We now turn to consider Counsel’s argument that the Secretary of State did not consider the Appellant’s claim that he fought in the war. The reasons for refusal letter was written on 3rd November 1999. The information the Secretary of State had before him at the time was the Appellant’s interview on arrival. At A4 of the interview the Appellant was asked what particular event caused him to leave his own country. His answer was that he felt like a third rate citizen, particularly since 1991 from the beginning of the war he no longer lived in his flat. Everything he accrued over 20 years of work had been lost. He was then asked what prompted him to leave then and not in 1991, and his reply was he thought that Yugoslavia would remain intact and not split up completely. He was in a war until the end. From 28th June 1991 until the Dayton Accord in 1995. When the question was repeated he said that he had a young child, he could not go back to his flat and since June 1991 he had not had a job. He survived by doing odd jobs and legally he could not get a job because of the Croatian soldiers. His emphasis throughout his interview was on the fact that at the end of 20 years of work he had nothing to show for it, no flat, no job and no country. It was at the end of the interview when he was asked if he had anything to add that he said that because of his involvement in the army and his cousin being a high ranking officer in the army he did not feel safe in Croatia. We accept that the Secretary of State did not consider the limited evidence before him in relation to the Appellant’s activity in the war or his fear as a consequence thereof when he wrote his reasons for refusal letter. The Appellant’s statement of 13th January 2000, which was sent to the Secretary of State on 4th August 2000, appears not to have been considered by the Secretary of State. It is obvious that the statement was sent after the reasons for refusal letter but was before the Secretary of State when he made his decision on 30th November 2000. Counsel argued that had the Secretary of State taken into account the Appellant’s fear on account of his activity in the war and his cousin’s high rank and status in the army, he would have granted the Appellant some form of leave. We disagree. The Bulletins in force at the time make no mention of the likelihood of an ethnic Serb succeeding because of his activities in the war.
31. The Adjudicator did however consider the Appellant’s evidence with regard to his activities in the war. She accepted his evidence that he served with the Serbian militia from 1991 to 1995 and later the Yugoslav army. She also accepted that his cousin has been convicted of war crimes. The Adjudicator considered the Appellant’s fear that his past military service may lead to a risk of persecution for alleged war crimes. We find that the Adjudicator’s conclusion that the Appellant is not at real risk of persecution for war crimes, nor his relationship with his cousin, a convicted war criminal to be perfectly sustainable in the light of the evidence that was before the Adjudicator. The Tribunal in DK acknowledged that the position over war crimes prosecution has not changed. However, the increase in arrests in 2003 still only affected a very small number of people. There is a trial process which cannot be said to be unfair and there is an appeal system which has led to some convictions being overturned. In the light of DK we support the Adjudicator’s finding that the Appellant is not at real risk of prosecution for war crimes.
32. We now turn to the Appellant’s fear of discrimination and his inability to regain possession of his property. We rely on DK and find that there is no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families will be unavailable even if there is no ODPR temporary accommodation. If the Appellant is unable to regain his own property, he should be able to obtain other accommodation. His inability to regain his own property is insufficient to create a real risk of persecution. In the light of the objective evidence, we accept that there is discrimination against Serbs in Croatia. However we find that the discrimination is insufficient to create a real risk of persecution.
33. Accordingly, the Appellant’s appeal is dismissed.
Miss K Eshun
Vice-President
Heard at Field House
Ms (Activity in war – Persecution –
Discrimination) Croatia [2004] UKIAT 00165
On 30 March 2004
Dictated 21 April 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
15 June 2004
Before:
Miss K Eshun (Chairman)
Mr N W Renton
Dr J O de Barros
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
Representation:
For the Appellant: Mr M Malik of Sutovic and Hartigan Solicitors
For the Respondent: Mss J Sigley, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, a citizen of Croatia, appeals with leave of the Tribunal against the Determination of an Adjudicator (Mrs A K Simpson) dismissing his appeal against the decision of the Respondent made on 30th November 2000 to refuse him leave to enter and asylum.
2. The Appellant arrived in the United Kingdom on 28th January 1999 and claimed asylum on arrival. His wife, born on 14th March 1952 is a dependant on his application. His son born on 3rd December 1981 had a separate appeal, which was heard on 11th November 2002 with his appeal.
3. Grounds of Appeal against the Adjudicator’s Determination were lodged on 15th January 2003. Leave was sought primarily in view of the Tribunal’s recent decision in S and K [2002] UKIAT 056113 in relation to ethnic Serbs from Croatia being currently appealed with permission being sought from the Tribunal to appeal to the Court of Appeal. Leave was being sought pending the decision of the Court of Appeal in S and K. It was also argued in the Grounds of Appeal that the Adjudicator erred in law in concluding that economic discrimination cannot amount to persecution under the Refugee Convention. Leave was granted to appeal to the Tribunal on 4th February 2003. Since then S and K has been decided and is now known as SK. We note that this decision was not relied on by either party.
4. The Appellant is an ethnic Serb, born in Branimirovac. In 1962 he moved to Osijek in eastern Slovenia. His wife was born in the village of Tenja, about 5 kilometres from Osijek. They married on 3rd October 1970. He is an Orthodox Christian. He completed military service between February 1969 and July 1970. Subsequently he obtained employment making agricultural machinery. His wife worked in a confectionary factory. As a result of political instability in Croatia, the Appellant was dismissed in May 1991 and his wife was dismissed in July 1991.
5. In September 1991 the battle for the village ended. When the Yugoslav army commanders discovered that the Appellant had served in a tank regiment during his military service, he was conscripted into their forces. He served as a private in a tank regiment, although he had command of the four-man tank. When the Serbian army withdrew on 20th May 1993, the Appellant was promoted to lieutenant and was left in command of 50 men and ten tanks. He remained in that position until he was demobilised under the Dayton Agreement in May 1995.
6. The Appellant feared for his family’s safety, from Croatians who were returning to his village. On 26th January 1998 he took the family to Norway where he claimed asylum. During their stay in Norway he discovered that his paternal cousin, Cerdo Sterbac, a colonel in the Yugoslav army who had been in command of a brigade, had been tried in absentia for war crimes and sentenced to twenty years imprisonment. Following refusal of his asylum claim, the Appellant and his family returned to Croatia on 11th October 1998. Although the Appellant had owned a flat in Osijek, this had been taken over by a Croatian family in 1991. Attempts to reclaim the flat were unsuccessful. He and his family had to live with his widowed sister-in-law, Branka, in Tenja.
7. He was unable to find work in Osijek. He considered moving to the Federal Republic of Yugoslavia, particularly since his daughter, married to a Serbian citizen, lived in Belgrade but although Croatian Serbs were allowed to travel in and out of the country, they were not allowed to settle there. He decided that there was no future for his family Croatia. In January 1999 he and his family travelled by car to Zagreb airport and from there came to the United Kingdom.
8. He last spoke to his sister in-law, Branka, in January 2002. She told him that his cousin was now in prison in Croatia. Although he had not been involved in any war crimes, he believed that his would not stop the Croatian authorities from blaming him for the deaths of Croatian citizens. He feared that if he returned to Croatia he would be arrested and probably imprisoned, although not for such a long period as his cousin.
9. The Adjudicator found the Appellant to be a credible and compelling witness and accepted his account. She found that there was nothing in the evidence before her to suggest that the Appellant had any individual responsibility for war crimes. In the light of the objective evidence before her she found that the Appellant was not at real risk of prosecution for war crimes. She noted that the UNHCR was actively promoting the return of Serbs to Croatia and she was certain that the UNHCR would not encourage return if persuaded that ethnic Serbs faced persecution such as would engage the Refugee Convention. She was therefore not persuaded that the Appellant’s military service and his relationship with his cousin, a convicted war criminal, sufficed to create a real risk of persecution by the local Croat population. The Adjudicator had relied on S and K in which the IAT took the view that in general, unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either the Refugee or European Convention.
10. She looked at the third limb of the Appellant’s claim, which related to the fact that he would, if returned to Croatia, be homeless. She noted that the Croatian government has undertaken to assist returnees in their reintegration by providing basic assistance depending on monthly income for a six month period, including cash grants, medical coverage and other legal and social benefits. Although she acknowledged that there was discrimination, particularly as regards housing and employment, she took the view that economic hardship did not, of itself, entitle a person to be regarded as a refugee.
11. At the hearing Mr Malik made an application to vary the grounds of appeal on the basis that there was a delay by the Secretary of State in deciding the Appellant’s asylum application and the consequences of this delay should prevent the Secretary of State removing the Appellant from the United Kingdom. On looking through the file, we saw that permission to vary the grounds had been granted by a differently constituted Tribunal in August 2003. Counsel made a new application to adjourn the hearing in view of the imminent decision by the Court of Appeal in the case of Janjanin in which the issue under consideration was whether delay in Croatian cases ought to apply in an Article 8 claim. We refused Counsel’s application to adjourn the hearing.
12. Miss Sigley submitted three decided cases, 24 M (Croatia) starred, 16 J and K.
13. Mr Malik sought to rely on unreported cases that were contained in the Appellant’s bundle of documents. Miss Sigley objected on the basis that Mr Malik had not complied with the President’s Practice Direction issued on 19th May 2003. Item 5 of the Practice Direction says that an application for permission to rely on an unreported determination must (i) include a full transcript of the determination, (ii) identify the proposition for which the Determination is to be cited, (iii) must identify that that proposition is not found in any reported determination of the Tribunal, and has not been superseded by a decision of a higher authority, and (iv) must be accompanied by a summary analysis of all other decisions of the Tribunal, and all available decisions of a higher authority, relating to the same issue, promulgated in the period beginning six months before the date of the decision proposed to be cited and ending two weeks before the date of the hearing. Following consideration of the matter the Tribunal ruled that Mr Malik had not complied with Item 5 of the Practice Direction, and refused him permission to rely on the unreported decisions.
14. Mr Malik said that there were two grounds on which the Appellant’s fear of persecution is based. Firstly, his Serb ethnicity and secondly, as somebody who was a captain in the Serb army. He said that the Secretary of State did not give consideration to the second ground. The reasons for refusal letter, which is dated 3rd November 1999, dealt mainly with the general situation of Serbs and paragraphs 12 and 13 asserted that the Appellant’s motivation for coming to the United Kingdom was economic.
15. Mr Malik said that the Appellant was interviewed on his arrival in the United Kingdom. At A4 of that interview the Appellant was asked “what has prompted you to leave now and not in 1991?” The Appellant replied “I thought that Yugoslavia would remain intact and not split up completely. I was in the war until the end. From 28th June 1991 until the Dayton Accord in 1995 I was in the war”. At A10 when he was asked if there was anything he wished to add to or change what he had said the Appellant’s reply was “Because of my involvement in the army and my cousin was a high ranking officer in the army, it means that we cannot feel safe in Croatia”. Mr Malik said that these two answers should have raised concerns with the Secretary of State. He said that the Appellant then sent a witness statement to the Secretary of State, which is at Annex C2 of the Home Office bundle. Although the witness statement was dated 13th January 2000, for reasons not known, it was not forwarded to the Secretary of State until 4th August 2000. At C5 of that witness statement the Appellant said that he was a private although he had command of four men in the tank that they used. When the Serb army withdrew as of 20th May 1993 he was left in command of 50 men and 10 tanks. He was promoted to lieutenant. He was comfortable with the responsibility as the men who would serve him were the men he had been fighting with for many months. He stayed in that position until he was demobilised under the Dayton Agreement in May 1995. Mr Malik said that although the statement was sent to the Secretary of State before the Secretary of State made his decision on 30th November 2000, there was no reference by the Secretary of State to this particular aspect of the Appellant’s claim. Furthermore, although the Secretary of State’s decision was dated 30th November 2000, the PF1 giving notice of the Secretary of State’s decision was not sent to the Appellant’s solicitors until 19th November 2001.
16. Mr Malik reminded us that the Appellant arrived in the United Kingdom on 28th January 1999. At the time of his arrival there was a Home Office Bulletin, 2/99 in place. Paragraph 10.6 of the Bulletin contained advice to caseworkers and set out two bullet points. The first bullet point said “There is no ‘group policy’ towards Serbian asylum seekers from Croatia and each case is determined on its own merit”. The second said “The general presumption is that Serbs (or those with a mixed Serbian background through parents or marriage) from the war affected area of eastern Slovenia, Baranja and Sirmrurn, the Krajina and western Slovenia, will be able to substantiate a claim to asylum on the grounds of their ethnicity. Mr Malik also referred us to the same Bulletin, paragraph 9.1 of which said, that “during the war in Croatia in 1991, the Croatian and Serbian sides had various militias in the field as well as other irregular groups. It is likely that almost all these groups were responsible for atrocities”. Mr Malik referred us to yet another Bulletin 4/99, which stated that caseworkers and Presenting Officers would need to be aware of the recent allowed appeal in the case of Kekus (K1002445). It said that “at the appeal hearing, representatives acting for Kekus, an ethnic Serb presented an impressive “expert opinion” paper on the position of ethnic Serbs in Croatia as well as an OSCE Report dated May 1999. These showed that ethnic Serbs are very likely to suffer persecution and discrimination based on ethnicity.” The Bulletin referred to an “expert opinion” which, Mr Malik said was the expert opinion of Karphammar, the former head of the legal unit to the OSCE Mission to Croatia, which was referred to by an Adjudicator in the case of Milan Cicic heard on 14th August 2000. In Cicic the Adjudicator noted that the validity of the Karphammar Report had been accepted by the Home Office Country Information and Policy Unit and had been referred to and accepted as giving an accurate and factual account of the situation in the region.
17. Mr Malik said that the upshot of all this evidence is that if the Secretary of State had considered the Appellant’s claim properly and fully, taking into account his rank in the Serb army, the asylum interview record of his fears and the basis of his return, and the presumption in the Home Office Bulletins, the Appellant would have had a good prospect of being granted exceptional leave to remain or full refugee status. He said that those who served with the Appellant in a lower position in the army were recognised as refugees. In his opinion the Appellant’s claim was not given the proper consideration that it deserved. In support of his argument Mr Malik relied on paragraph 31 of the Tribunal’s decision in 24 M (Croatia) starred. In that paragraph the Tribunal said that there was a good prospect that at the time of entry if a decision had been made then, the Claimant would have been granted some form of leave to remain. The Tribunal were prepared to assume that a government committed to speedy decision-making could reasonably have made a decision within a year. Mr Malik said that the Claimant in 24 M entered the UK in October 1999, eight months after this Appellant. Had this Appellant’s claim been considered within the reasonable period of a year, he would have had a good prospect at the time of being granted some form of leave, that is, exceptional leave to remain for four years, not just on his ethnicity but also on his activity in the army and his rank as a captain. This case he said comes into the Shala exception. He also relied on the case of Mahmood for his argument that those who have a legitimate claim to enter such as this Appellant ought to be considered differently.
18. Mr Malik then went on to address us as to how the delay has affected the Appellant’s private life. Mr Malik referred us to paragraph 18 of the Tribunal’s decision in 16 J wherein the Tribunal said that as has been emphasised in Nhundu and Chiwera (01/TH/0613), the right protected under Article 8 is a composite one and elements of private and family life required to be considered cumulatively. Mr Malik said that the delay denied the Appellant the strong presumption that he would be granted exceptional leave to remain and thereafter would have been able to apply to be granted indefinite leave to remain. He said that there was an additional delay in the service of the notice by a year and the delay in the Appellate system.
19. Mr Malik said that the Appellant lost property in Croatia and has no chance of regaining it. On return to Croatia he will be at the mercy of charitable organisations. He referred us to objective information on conditions in Croatia. The US State Department Report on Human Rights Practices in 2003 states that arrests of ethnic Serbs for war crimes continued but decreased throughout the year. In some cases of arrest on war crimes charges, the subject was released a few days after charges were dropped. However, in other cases persons were detained for long periods. Over the last few years, several ethic Serb defendants convicted in absentia or at non-transparent trials continued to be held in detention for extended periods while their appeals progressed slowly through the over-burdened judicial system. The OSCE reports that the outcomes of war crimes prosecutions appeared to be largely determined by the ethnic identity of both the defendant and the victim. According to the Human Rights Watch, Croatia Report the Croatian government must reform its laws and policies to ensure that returnees have an opportunity to repossess their homes or obtain compensation for lost property, and equal access to employment and pension benefits. The Report said that until the government does so, hundreds of thousands of Croatian Serbs would be unable to realise their right to return home.
20. The US State Department Report also highlights an OSCE Report on several ethnically related incidents where perpetrators were charged with misdemeanour offences. In a majority of cases police and prosecutors were reluctant to identify the cases as ethnic discrimination. Mr Malik said that the picture painted by the reports makes the Appellant more vulnerable. The discrimination at local level continues. The OSCE Report shows that war crime trial is not dead and buried. Therefore the Appellant would be in a more vulnerable position were he to be returned to Croatia.
21. In reply Miss Sigley said that the Tribunal is not in a position to grant the appellant asylum. The Tribunal has to decide whether or not the Appellant qualifies for asylum or whether return would breach the UK’s obligation under the Human Rights Convention. She accepted that the Appellant has established a private life since his arrival in the UK.
22. Miss Sigley said that the determinations of Adjudicators allowing the appeals of three people the Appellant knew in the army do not support a blanket proposition that the Secretary of State granted exceptional leave to remain to all Serbs from Croatia. The Tribunal in 24 M said that removal of that Claimant would not be disproportionate. At paragraph 38 of 16 J the Tribunal held that in conducting the balancing exercise under Article 8, the existence of any unreasonable period of delay is ordinarily a relevant factor that it will rarely be a decisive factor unless accompanied by other special circumstances, which disclose particular prejudice to a Claimant. The Tribunal then listed three pre-conditions which should underpin the Shala point and these are (a) the fact that the Appellant had a legitimate claim to enter at the time when, on any reasonable basis, his claim should have been determined; (b) the fact that, had his asylum application been dealt with reasonably efficiently, he would have been likely to have obtained at least exceptional leave to remain; (c) the fact that his private or family life had only become significantly established as a result of the time spent by him in the UK where he formed a relationship. Accordingly possession of ELR, if it had been granted when it should have been, would thereby have given him the ability to apply from within the UK for a variation of leave on the grounds of his relationship. Miss Sigley argued that point (c) is absent in this case. Whether the Appellant has established a private life in the UK from 1999 to now, the Tribunal will still have to consider whether it would be disproportionate to remove him. The Tribunal in 24 M paid deference to the Secretary of State at paragraph 28. It said that the Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances.
23. As to the Appellant’s fear of prosecution for war crimes, and his inability to regain possession of his home, Miss Sigley referred the Tribunal to the decision in DK. We have previously been referred to paragraph 89 of that decision by Mr Malik wherein the Claimant’s Counsel had referred to a letter which stated that those who return as failed asylum seekers do not receive the benefit of UNHCR assistance prior to return, or temporary accommodation from the ODPR, and it is highly unlikely that any exceptional humanitarian assistance would be available to DK from UNHCR. Miss Sigley referred us to paragraphs 92 and 93 of the same decision where the Tribunal found that DK would be entitled to the welfare rights of a Croatian citizen and that there was no evidence that Serbs suffered discrimination in that respect. Although there would be a level of hardship, it was not so significantly different from that rejected in S and K as to be sufficient to give rise to a breach of Article 3. The Tribunal went on to say that there was no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families, would be unavailable even if there were no ODPR temporary accommodation. Miss Sigley asked us to come to the same conclusion in this case.
24. As regards the Appellant’s activities in the war, Miss Sigley said that the Tribunal should not interfere with the Adjudicator’s findings in this respect. At paragraph 81 of DK the Tribunal noted that the position over war crimes prosecutions has not markedly changed; there are still trials in absentia, but that does not prevent a fresh trial upon arrest. Although Serbs faced discrimination in the frequency of arrest and prosecution, the Tribunal noted that the increase in arrests in 2003 still only affected a very small number of people. There is a trial process, which is not said to be unfair and there is an appeal system, which has led to some convictions being overturned. Miss Sigley therefore argued that it is not the case that the Appellant will be at risk of persecution on account of his activities in the war.
25. The Appellant’s appeal was prosecuted on three grounds:
(1) Delay in the processing of his asylum application denied him a presumption of the grant of some form of leave, namely, exceptional leave to remain for four years following which he could have had the opportunity of applying for indefinite leave to remain.
(2) His fear of prosecution for activities in the war and;
(3) The Appellant’s inability to regain possession of his property and the discrimination he might face on return to Croatia as an ethnic Serb.
26. The first ground of delay was predicated on the Court of Appeal’s decision in Shala. The Court of Appeal held that there were circumstances in which the delay on the part of the Secretary of State in dealing with the asylum claim was an exceptional feature which took the case outside the significant area of judgment which the Courts would allow him in balancing the conflicting interests of the proper maintenance of immigration control and interference with Article 8 rights. The exceptional feature in Shala was that the Appellant had a legitimate claim to enter because at the time he would have been likely to benefit from the Secretary of State’s policy of granting asylum to ethnic Albanians from Kosovo. Had the decision been made within a reasonable time, he would have been likely to have been granted some form of leave to remain and this would have enabled him to make an in-country application for a variation in his leave to stay as a spouse and the Secretary of State’s policy of requiring those who had no leave, to apply for entry clearance out of country, would not have applied, and the interference with family life would not have occurred. In our opinion the Tribunal in 16 J at paragraph 38 (iii) reiterated the three special features in Shala.
27. Taking the first exceptional feature in Shala, the question we ask is whether the Appellant had a legitimate claim to enter because at the time he would have been the likely beneficiary of the Secretary of State’s policy of granting asylum to an ethnic Serb from Croatia, had his claim been determined within a reasonable time. The case of 24 M Croatia starred decides that a reasonable time is within a year of an Appellant’s entry to the UK. This Appellant arrived in the United Kingdom in January 1999. The Secretary of State could reasonably have been expected to make a decision on his asylum application by January 2000. Although the Secretary of State’s reasons for refusal letter is dated 3rd November 1999, the relevant decision refusing to grant the Appellant leave to enter and asylum was made on 30th November 2000. This means that the delay was outside the reasonable period within which the Secretary of State could have made his decision.
28. In Shala the Secretary of State had a policy of granting asylum to ethnic Serbs from Kosovo. However, we find that there was no equivalent policy in force for ethnic Serbs from Croatia at the time of the Appellant’s entry. What we have are Bulletins in the form of advice to caseworkers in their consideration of applications by ethnic Serbs from Croatia. Bulletin 2/99 advised that there was no “group policy” towards Serbian asylum seekers from Croatia and that each case has to be determined on its own merits. There was however the general presumption that Serbs from the war affected areas including eastern Slovenia, from where the Appellant originates will be able to substantiate a claim to asylum on the grounds of their ethnicity. Bulletin 4/99 advised caseworkers and Presenting Officers the need to be aware of the recent allowed appeal of Kekus and also objective evidence, which showed that ethnic Serbs were very likely to suffer persecution and discrimination based on ethnicity. In this appellant’s case, his claim in his interview was wholly based on economic reasons, namely, the loss of his job and property. This was what led the Secretary of State to conclude that the appellant’s motivation for coming to the UK was economic. In the circumstances we are not in a position to assume that this particular Appellant would have received a favourable decision and thereby been granted some form of leave to remain, had his application been considered within a reasonable time, namely, within 12 months of his arrival.
29. The other special feature in Shala was that had he been granted some form of leave to remain, this would have enabled him to make an in-country application for a variation of his leave to remain as a spouse and the Secretary of State’s policy of requiring those who had no leave to apply for entry clearance out of country, would not have applied, and the interference with family life would not have occurred. In this Appellant’s case, it was argued that had the Appellant been granted some form of leave to remain, e.g. exceptional leave to remain for four years, he would then have been able to apply for the grant of indefinite leave to remain. The facts of this Appellant’s case are somewhat different from Shala. Shala had married someone who had no connection with Kosovo and who already had two children and who had already been granted refugee status in this country. Therefore an out of country application as a spouse would have caused an interference, however temporary, to his family life. In this particular case, the Appellant arrived in the UK with his wife and son. Therefore refusal to grant him some sort of leave to remain in the UK poses no interference with his family life, as he and his wife would be removed together. We accept that he has established a private life as a result of time spent in the UK but we are of the view that his private life cannot be looked at in isolation to his family life. We do not know the outcome of his son’s asylum appeal. Nevertheless any interference with their family and private lives would not, in our opinion, be disproportionate to the effective maintenance of immigration control. Furthermore, as it is speculative to assume that he would have been granted some sort of leave to remain, it is also speculative that he would have been in a position to apply for indefinite leave to remain.
30. We now turn to consider Counsel’s argument that the Secretary of State did not consider the Appellant’s claim that he fought in the war. The reasons for refusal letter was written on 3rd November 1999. The information the Secretary of State had before him at the time was the Appellant’s interview on arrival. At A4 of the interview the Appellant was asked what particular event caused him to leave his own country. His answer was that he felt like a third rate citizen, particularly since 1991 from the beginning of the war he no longer lived in his flat. Everything he accrued over 20 years of work had been lost. He was then asked what prompted him to leave then and not in 1991, and his reply was he thought that Yugoslavia would remain intact and not split up completely. He was in a war until the end. From 28th June 1991 until the Dayton Accord in 1995. When the question was repeated he said that he had a young child, he could not go back to his flat and since June 1991 he had not had a job. He survived by doing odd jobs and legally he could not get a job because of the Croatian soldiers. His emphasis throughout his interview was on the fact that at the end of 20 years of work he had nothing to show for it, no flat, no job and no country. It was at the end of the interview when he was asked if he had anything to add that he said that because of his involvement in the army and his cousin being a high ranking officer in the army he did not feel safe in Croatia. We accept that the Secretary of State did not consider the limited evidence before him in relation to the Appellant’s activity in the war or his fear as a consequence thereof when he wrote his reasons for refusal letter. The Appellant’s statement of 13th January 2000, which was sent to the Secretary of State on 4th August 2000, appears not to have been considered by the Secretary of State. It is obvious that the statement was sent after the reasons for refusal letter but was before the Secretary of State when he made his decision on 30th November 2000. Counsel argued that had the Secretary of State taken into account the Appellant’s fear on account of his activity in the war and his cousin’s high rank and status in the army, he would have granted the Appellant some form of leave. We disagree. The Bulletins in force at the time make no mention of the likelihood of an ethnic Serb succeeding because of his activities in the war.
31. The Adjudicator did however consider the Appellant’s evidence with regard to his activities in the war. She accepted his evidence that he served with the Serbian militia from 1991 to 1995 and later the Yugoslav army. She also accepted that his cousin has been convicted of war crimes. The Adjudicator considered the Appellant’s fear that his past military service may lead to a risk of persecution for alleged war crimes. We find that the Adjudicator’s conclusion that the Appellant is not at real risk of persecution for war crimes, nor his relationship with his cousin, a convicted war criminal to be perfectly sustainable in the light of the evidence that was before the Adjudicator. The Tribunal in DK acknowledged that the position over war crimes prosecution has not changed. However, the increase in arrests in 2003 still only affected a very small number of people. There is a trial process which cannot be said to be unfair and there is an appeal system which has led to some convictions being overturned. In the light of DK we support the Adjudicator’s finding that the Appellant is not at real risk of prosecution for war crimes.
32. We now turn to the Appellant’s fear of discrimination and his inability to regain possession of his property. We rely on DK and find that there is no evidence that accommodation, notably private rented accommodation, including accommodation with Serb or other families will be unavailable even if there is no ODPR temporary accommodation. If the Appellant is unable to regain his own property, he should be able to obtain other accommodation. His inability to regain his own property is insufficient to create a real risk of persecution. In the light of the objective evidence, we accept that there is discrimination against Serbs in Croatia. However we find that the discrimination is insufficient to create a real risk of persecution.
33. Accordingly, the Appellant’s appeal is dismissed.
Miss K Eshun
Vice-President