The decision

Heard at Field House
On 19 May 2004
Written 21 May 2004

AB (Ashkaelia) Serbia and Montenegro CG [2004] UKIAT 00188


Date Determination Notified

03 June 2004


Mr S L Batiste (Vice-President)
Mr R Chalkley (Vice-President)
Mr R Hamilton




1. The Appellant, a citizen of Serbia and Montenegro (Kosovo), appeals, with leave, against the determination of an Adjudicator, Mr C G Kelsey dismissing his appeal against the decision of the Respondent on 14 June 2003 to issue removal directions and refuse asylum.

2. Mr R Amarasinha represented the Appellant. Mr G Saunders, a Home Office Presenting Officer, represented the Respondent.

3. The Appellant’s claim can be summarised as follows. He is an ethnic Ashkaelia and a Christian, whose problems began in 1999 after the Serbians left Kosovo. He was ill treated by Albanians in his home area, which is largely ethnic Albanian, because of his ethnicity. He was verbally abused and physically beaten whilst walking in the street. Further problems began when he married his wife in September 2001. She is an ethnic Albanian and a Moslem by religion. The marriage was not approved by Albanians in the village of Podujevo, where they lived. Soon after he was married he was collecting wood in the garden when he heard shots and a little later was shot in the leg. At all events the Appellant said he did not go to hospital because he feared being shot again. He was scared to leave the house. He received death threats if he did not leave the village. Stones would be thrown at him in the street. After the shooting he contacted KFOR who provided him with security at his house for two days. They then said there was little more they could do for him. At that time his wife was pregnant and she lost the baby due to stress. They sold belongings in order to raise finance to pay for their journey to the UK. They arrived here together on 22 October 2002 and, after being found concealed in a lorry, the Appellant claimed asylum.

4. The Adjudicator expressed considerable reservations concerning the Appellant's credibility. He observed that although the Appellant claimed to have experienced some degree of animosity and discrimination after the war, he did not take any significant steps to report these matters or seek protection from the authorities. Even in relation to the shooting, his approach to KFOR only arose some two weeks after the incident, when his wife observed KFOR troops walking past the house in the street and went up to report the matter to them. They acted properly and took full details and remained in the region for a couple of days, before leaving when nothing else untoward happened. The Adjudicator was unclear, having regard to the earlier shots that appeared to have nothing to do with the Appellant, whether his wounding was a deliberate attack on him or an accidental shooting. He concluded that the wound could not have been particularly serious because the Appellant did not go to hospital or take any immediate steps to contact the police or any other security organisation. However he accepted on the lower standard of proof that the Appellant had received some injury in a shooting incident. The Adjudicator was also concerned that there was no evidence of any particular event that caused the Appellant and his wife to leave Kosovo some 9 months after the shooting. Plainly if he was in any real fear for his life he would have left earlier.

5. On this analysis, the Adjudicator concluded that there was no real risk of ill-treatment on return to his home area sufficient to cross the high threshold required to constitute persecution or a breach of Article 3. In any event there was a sufficiency of protection available to the Appellant from the authorities in his home area within the terms of Horvath. Finally, if he did not wish to return home, there was an internal relocation option that would not be unduly harsh. The Appellant spoke fluent Albanian and had done nothing that could lead anyone to believe that he had collaborated with the Serbs. Effectively he would be able to merge with the majority population. He had lived in Fush before and had not given any credible evidence that he could not return there, where there was a pocket of Ashkaelia, or elsewhere. The Adjudicator therefore dismissed the asylum and associated human rights appeals. He also dismissed a freestanding Article 3 claim on health grounds and an Article 8 claim in respect of private family life.

6. Permission to appeal was granted only to enable argument concerning risk arising from the Appellant's ethnicity in the light of UNHCR advice. In terms of the grounds of appeal this embraced paragraphs 3 and 4 only, as the representatives agreed at the outset of the proceedings before us.

7. Mr Amarasinha argued that the main issue was the consideration of the risk impact of the mixed marriage, which was one of the categories identified by UNHCR as requiring continuing international protection. The issue of the marriage was not properly considered by the Adjudicator. He dealt simply with ethnicity rather than the problems posed by the mixed marriage between people of different ethnicity. He did not consider what problems would arise as a result and whether internal relocation was a viable option as a consequence. He invited the Tribunal to reach its own conclusions on the basis of the facts as established and he submitted the appeal should be allowed outright.

8. Mr Saunders submitted that the Adjudicator's conclusions were properly sustainable. The Appellant, though Ashkaelia, spoke Albanian as his first language and is married to an Albanian Moslem woman. There was no reason why he could not merge into the majority community in his home area. He had remained there for some nine months after the shooting (for which it was still no corroborative medical evidence). There was no evidence of material difficulties in this time and, as the Adjudicator noted, there was no clear triggering event for his decision to leave Kosovo for the United Kingdom. Alternatively, in paragraph 14 of the determination the Adjudicator noted that the Appellant went to live for some time in Fush. Though he claimed he had had problems there he was unable to state what they were. Thus he had been able to live elsewhere in Kosovo previously and could again, though he had returned to his home and had lived in Ballovk for at least the nine months before coming to the UK. The objective evidence showed that attacks on minorities had materially reduced and that Ashkaelia live alongside the majority community. He submitted that the appeal should be dismissed.

9. Mr Amarasinha’s main submission was that the Adjudicator failed to consider the question of the mixed marriage alongside the question of ethnicity when considering the risk on return. That submission, insofar as it relates to his consideration of the specific facts, is not borne out by the terms of the determination as a whole. The Appellant's wife gave evidence on his behalf. The Adjudicator plainly took on board her ethnicity and the Appellant's claim that the position got worse for him as a consequence of the marriage. He did not however agree that the problems faced by the couple in their home area crossed the severity threshold required to constitute persecution or breach of Article 3 or that they lacked protection. He was entitled to reach this view given that the Appellant remained at his home for some nine months after the shooting incident (which may well have been accidental and did not result in serious injury) and was unable to identify any particular reason for leaving Kosovo when they did. We noted that although the Adjudicator expressed concern that there was no medical evidence to corroborate the gunshot injury, none has been produced to us either The Adjudicator was also entitled to take into account the fact that the Appellant's first language is Albanian and that this enabled him to merge more easily into the majority community. However whilst the Adjudicator in reaching these conclusions plainly did have regard to the specific facts and the objective evidence as a whole and identified a number of material passages in the CIPU report, it is true, as Mr Amarasinha asserted that there is no specific reference in the determination to UNHCR advice either on ethnicity or mixed marriages. We have therefore assessed the objective evidence as a whole, including the advice of UNHCR, to see whether the Adjudicator’s conclusions are sustainable.

10. The US State Department report to which we have been referred shows that some minorities, including the Ashkaelia, live alongside ethnic Albanians and their security situation has improved during 2002, though some incidents of violence and harassment continued to occur. However the main problems for minorities were for Serbs, who often feared to leave their enclaves, and Roma.

11. Mr Amarasinha referred us to the UNHCR advice of January 2003 and said that it had not changed subsequently. It states that
“Members of minority groups in Kosovo as described in this paper, especially Kosovo Serbs and Roma, but also Ashkaelia and Egyptians, should continue to benefit from international protection in countries of asylum. UNHCR stresses that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions. Any such voluntary return movements should be properly coordinated and reintegration should be supported through assistance to ensure sustainability. Kosovo Serbs, Roma, Ashkaelia and Egyptian individuals or families should not be forced or induced to return to Kosovo.
While general improvement in the overall situation of Roma, Ashkaelia and Egyptian communities have continued, with a stabilised security situation in many regions, these three communities continue to face serious protection problems. The Roma to an extent comparable to the Serbs, the Ashkaelia and Egyptians to a lesser extent. Even where inter-ethnic relations appear to have improved enabling small-scale returns, amongst the Ashkaelia particularly, experience has demonstrated that the risk of attack remains. Hence their physical security remains precarious.
The Roma, Ashkaelia and Egyptian communities tend to live in concentrated groups as a means of enhancing their sense of safety. Their freedom of movement is generally restricted, although it varies according to geographical location. Freedom of movement also varies with language ability (for instant Albanian speaking Ashkaelia appear to the better tolerated and thus enjoyed relatively greater freedom of movement).”

12. The CIPU report for April 2004, states when reporting the ninth assessment of UNHCR/OCSE that
“Ethnic identification as Roma, Ashkaelia or Egyptian is not necessarily determined by easily discernible or distinct characteristics or cultural traits but rather by a process of self identification. It is not uncommon in Kosovo for individuals to change their ethnic self-identification depending on the pressures of local circumstances, especially when it is necessary in order to distance themselves from other groups to avoid negative associations.
The Ashkaelia are Albanian speaking and have historically associated themselves with Albanians, living close to that community. Nevertheless, Albanians treat them as separate from the Albanian community.
The security position for Roma, Ashkaelia and Egyptian communities varies according to perceptions of the majority population, totality and language issues. This should be qualified by underlining the fact that the trend is marked by variations between Roma, Ashkaelia and Egyptian communities depending upon the perceptions of the majority population, totality, and language issues. UNHCR and OSCE state that the ability to speak fluent Albanian is likely to be a factor in the degree to which RAE are able to integrate with the majority community.”

13. The main difference between the UNHCR paper and the CIPU report is the UNHCR makes a recommendation against return whilst the CIPU report leaves the question of safety on return to those who have to make the decisions. However it appears from the UNHCR recommendation against returns reflects its wider brief than ours, and that they have given weight to economic factors related to sustainability and integration overall, rather than the more focused exercise which we have to undertake to assess whether there is a real risk of persecution or a breach of Article 3 on return, on the facts of each individual case. Having looked at the objective evidence before us in the round, we conclude, given the more positive comments by UNHCR about the position facing the Ashkaelia, that one cannot properly say that no Ashkaelia can be returned to Kosovo against their will. There are clear and differences in risk between different groups, different areas and different individual factors, which have to be assessed on a case by case basis.

14. In saying this, we also take note of the extensive publicity concerning the temporary upsurge of hostility between the Albanian and Serbian ethnic communities in Kosovo in March 2004. Clearly this reflected the underlying tensions in the province that are apparent from the objective material before us. However that inter-ethnic violence was rapidly addressed by the security forces, and there is no evidence before us to suggest that this episode has materially changed the general profile for assessing risk on return.

15. In this appeal, the Appellant is Ashkaelia, which appears to be the minority community least at risk and closest to the Albanian majority. He speaks Albanian as his first language and has integrated in the past into the general majority community and lived successfully in an area where there was an Ashkaelia concentration. He did not leave his home, let alone Kosovo, after the shooting incident and was unable to explain to the Adjudicator what actually led him and his wife to leave some nine months later.

16. We have considered whether, as Mr Amarasinha suggested, his mixed marriage would create any material extra risk for him. The UNHCR advice on mixed marriages produced to us is of April 2002. It states
“While most Kosovo Albanians are able to return without protection difficulties there are certain categories of Kosovo Albanians who may face serious problems including physical danger were they to return home at this time. These include Kosovo Albanians in ethnically mixed marriages and persons of mixed ethnicity.
Claims from persons who fear persecution because they belong to one of these categories should be carefully considered in order to ascertain the need for international protection.”

17. The Appellant is not a Kosovo Albanian but he is married to one. Plainly the main groups of mixed marriages that can cause security difficulties in Kosovo are marriages between ethnic Albanians and ethnic Serbs, and the Roma who are more perceived by the Albanians as being allied to the Serbs. This is because of the continuing tension between the two communities and the need particularly for the ethnic Serbs and Roma to concentrate in their own communities for security and protection. A mixed marriage between an Albanian and a Serb could mean difficulties in both communities and greater exposure to risk.

18. The situation for Ashkaelia is however rather different. They have associated themselves traditionally with the Albanian community. The Appellant has lived in the majority Albanian community for much of his life. Having an ethnic Albanian wife would make it easier for him to identify himself with the Albanian community in the way described in the objective evidence. The evidence that they have experienced difficulties themselves in the past in Kosovo is very limited and vague. In any event the UNHCR advice is only that claims from people in mixed marriages should be carefully considered. This we have done.

19. We consider that the Adjudicator was entitled to conclude on the evidence as a whole to conclude that the Appellant and his wife would not be at any real risk of persecution or a breach of Article 3 on return to their home area and would have a sufficiency of protection within the terms of Horvath. Moreover, if they wish, there is a viable internal relocation alternative to Pristina, to where they will be returned and where they will be able to merge within the majority community without people being aware of their history. Alternatively the Appellant and his wife could return to Fush, where there is a concentration of Ashkaelia and where he lived before. To expect them to do so would not be unduly harsh. We therefore uphold the Adjudicator’s determination.

20. Accordingly this appeal is dismissed.

Spencer Batiste