The decision

Heard at Field House
On 6 July 2004

YK (Citation of unreported decisions) Serbia and Montenegro [2004] UKIAT 00207

Date Determination notified:

28 July 2004


Mr Andrew Jordan
Mr R. A. McKee
Mr S. S. Percy






For the appellant/Secretary of State: Ms R. Brown, Home Office Presenting Officer
For the respondent/claimant: Mr J. Adler, Counsel, instructed by Gupta & Partners


1. The Secretary of State appeals against the decision of an Adjudicator, Mr M. Rothwell, promulgated on 18 September 2003, following a hearing at Hatton Cross on 9 September 2003 allowing the claimant's appeal against the decision of the Secretary of State to refuse both the claimant's asylum and human rights claims.

2. The claimant is a citizen of Serbia and Montenegro and was born on 21 January 1988. He is 16 years old.

3. The claimant arrived in the United Kingdom avoiding immigration controls on 13 April 2002, when he was aged 14, and claimed asylum on the same day shortly after arrival. The Secretary of State made a decision on 13 March 2003 giving directions for the claimant's removal to Albania and refusing his asylum claim. The basis of the refusal included the fact that the claimant had failed to complete and SEF without reasonable explanation. At the time of his arrival he was 14 years old and was unaccompanied.

4. The claimant comes from Kosovo in Serbia and Montenegro, not Albania. He speaks Albanian. He is of mixed ethnicity in that his father is Roma, although his mother is Albanian. He claimed that he was persecuted as a result of his mixed ethnicity because he had been discriminated against and harassed because he is Ashkaelia. The Secretary of State accepted that the removal directions should have been made to Kosovo and not Albania. An undertaking was given on behalf that the Secretary of State to the Adjudicator and repeated by Ms Brown who appeared before us to the intent that the claimant would not be required to return to Albania.

5. The claimant lived in Gjakova. His father worked for the Serbian police between 1995 and 1999 and was killed by members of the KLA in September 1999. His mother then moved the family to live with a relative, [ ], of the claimant's father, where they remained without incident until April 2002. [ ] worked as an electrician and the claimant's brother assisted him. In a statement made by the claimant on 13 May 2002, the claimant set out what happened in paragraphs 21 to 24. On 5 April 2002, 6 Albanian men called at [ ]'s home. They called him out and a fierce, violent altercation ensued. The claimant's brother intervened and was shot. The claimant continued:

"My mother ran out of the house and I could see the men pointing their guns at my mother and threatening to kill her. They told my mother they knew who we were and what had happened to my father and told her that gypsies had no place in Kosovo. They told my mother to go to Serbia because we were collaborators Serbs and that the Serbs would protect us. Before they left, they said they will come back soon and if they found is still around, they would kill all of us."

The claimant's brother was nursed back to health. Arrangements were made for the claimant to leave Kosovo. Those arrangements did not include his mother or brother. The Adjudicator recorded in paragraph 3.6 of the determination that the claimant had made no inquiries about his family since leaving.

6. At the hearing before the Adjudicator, the claimant did not give evidence save to confirm his statement. There appears to have been arrangement made between the representatives that no other evidence was to be provided. Mr Flegg, who appeared on behalf that the Secretary of State before the Adjudicator, submitted that there was no reason why the claimant should be identified as a Roma or would, indeed, identify himself as such. Although he has dark hair, his skin is pale and there is nothing in his physical appearance to identify himself as Roma. His mother is, of course, Albanian with no Roma blood. The claimant himself does not speak Roma. It was, therefore, submitted that he could relocate in whatever part of Kosovo he may choose and no consequences would follow. If he is out of touch with his family in the United Kingdom, he will be no substantially different position in Kosovo.

7. Mr Adler, who appeared before the Adjudicator as he appeared before us, submitted on the claimant's behalf that the claimant had been identified in the incident of April 2002 as a gypsy and as an alleged collaborator with the Serbs and was at risk of the same thing happening again. It is apparent to us that the sole issue before the Adjudicator was whether the appellant would be identified as a mixed ethnicity and/or of a family perceived to have collaborated with the Serbs. In paragraph 4.4 of the determination, the Adjudicator considered the background material and the fact that the Gjakova and Peje regions contain mixed communities of Roma and Albanians and that it was reasonably likely that the claimant was not living in a Roma community "so as to have any real identification of himself as one or another". He accepted that the claimant had had no problems between 1999 and 2002. The Adjudicator accepted the claimant's evidence that [ ] was a Roma who had avoided making that public.

8. The Adjudicator's determination was based upon his interpretation of the UNHCR Position Paper on the continued protection needs of individuals from Kosovo dated April 2002. He was referred to paragraph 5 of the document and the three categories of Kosovan Albanians who were then said to be in need of protection. This passage is found page 301 of the bundle before the Adjudicator. The categories are:

(a) Kosovo Albanians originating from areas where they constitute an ethnic minority
(b) Kosovo Albanians in ethnically mixed marriages and persons of mixed ethnicity
(c) Kosovo Albanians perceived to have been associated with the Serbian regime after 1990.

9. The Adjudicator decided the claimant fell into all three, or at least two, of those categories. Since the claimant originated from an area in Kosovo where the Albanian population was and remains in the majority, it may be that the Adjudicator was not satisfied that the claimant fell into this group. The Adjudicator did, however, find that the claimant was from an ethnically mixed marriage and, as a result of the April 2002 incident, was perceived to have been associated with the Serbian regime after 1990. In paragraph 4.10 of the determination, the Adjudicator said:

"Of course, the appellant is of mixed ethnicity. Although having dark hair his skin is pale and he has clearly been able to live without being identified or suffering any problems for three years until the incident of 2002. So while he has not strictly in the group of RAE it is still relevant to note that his family was targeted with the perception of then deemed gypsies and because of collaboration with the Serbs… the appellant's circumstances are also distinguishable from those of B (SMKosovo) because his family are specifically identified even though he was living in western Kosovo where circumstances are said to be improved. It is not known how his family identity and background was established, but it was with dramatic consequences for him."

10. On the basis of this reasoning, the Adjudicator found that the appellant had proved past persecution and the risk of further prospective persecution. Similarly, the consequences that he found were reasonably likely to occur to the claimant on return to Kosovo where sufficiently serious constitute a violation of his Article 3 rights.

11. The Secretary of State appealed. The grounds of appeal raise a single issue. It is said that the claimant could pass for an ordinary Albanian on return to Kosovo because he is light-skinned, does not speak Roma, has an Albanian surname and would not be identified as Roma on return to Kosovo except in his own village. This issue is, in effect, the same issue canvassed before the Adjudicator.

12. In our judgment, we are satisfied that the Secretary of State has made out the point raised in the grounds of appeal. The question before the Adjudicator was whether the claimant was at risk of adverse consequences on return to Kosovo as a result of his past history as found by the Adjudicator. This required the Adjudicator to assess the risk for this particular claimant. In the circumstances of his case, the issue of risk was directly related to whether he would be identified. It was, of course, for the claimant to establish that he would be identified as a Roma or of mixed ethnicity or would be perceived as a collaborator with the Serbs or from a family of collaborators. On the basis of those findings, it was open to the claimant to argue that, on the facts of his particular case, he would be at risk. We say this because not all Roma are persecuted, just as not all family members are persecuted as a result of the activities of one member of their family. Nevertheless, the claimant could not realistically even begin the task of establishing a case unless he was able to establish to the requisite standard that he would be recognised or identified as a target.

13. The Adjudicator did not approach the appeal in that way. Instead, he approached the issue of risk by examining whether the claimant fell into one of the UNHCR categories as if classification alone were determinative of adverse consequences. The Position Paper should not be construed as a statute. At most, it is a guide from one of the several organisations that seek to assist decision makers in the assessment of risk. It is not a substitute for the Adjudicator making his own assessment on the facts of an individual case. This is clear from the terms of the categories. A couple in a mixed marriage, living together, in circumstances where the mixed ethnicity is clear and apparent might reasonably be identified as being at risk. Yet, we doubt whether this category can properly be applied slavishly in all cases. In our judgment, it could not properly identify a risk where the spouses in a mixed marriage separate and each moves away from their home and begins an independent life.

14. Mr Adler relied upon the fact that in April 2002 the claimant had been involved in a violent incident in which his brother had been shot. We understand that [ ] was a relative of the claimant's father and himself a Roma. For obvious reasons, he had managed to conceal his ethnicity for the most part. The claimant's account suggests that the Albanians who attacked [ ] were targeting him, rather than the claimant or his family. [ ]'s home is apparently some three or four hours away by car from where the claimant lived. There is no credible evidence that the attackers were from Gjakova and had managed to trace the claimant's whereabouts. The claimant's mother is Albanian and the claimant himself does not have the physical appearance of a Roma so there is no reason that, by appearance alone, the claimant's family would have been targeted. Mr Adler did not seek to suggest he knew a means by which the claimant's mixed ethnicity had come to the attention of the attackers. He merely stated that it had and that it was, therefore, liable to happen again. We do not accept that submission. There is nothing about the claimant's lifestyle or appearance that identifies him as Roma. If, as he claims, the fact of being Roma or half-Roma places him at risk, it is reasonable to assume that this will be concealed. There is no situation put forward by Mr Adler in which the claimant will be required to reveal his mixed ethnicity. It is not a factor that has to be revealed when dealing with the authorities or applying for identity cards, passports or other official documents. It seems to us much more likely that the incident occurred because [ ]was identified as a Roma, rather than as a result of the claimant's family’s presence in his household.

15. Unless the claimant can establish by credible evidence the means by which he will be recognised either as a Roma, or of mixed ethnicity or the son of a Serbian collaborator, his claim must inevitably fail. Even if the attack in April 2002 was a result of somebody identifying the claimant or his family as Roma, but by a means that no one is able to establish, the claimant fails to establish the reasonable likelihood that history will repeat itself. In our judgment, it is irrational to place the claimant in a category of risk by reference to the UNHCR Position Paper when the claimant is unable to adduce any credible evidence that anybody in Kosovo is capable of identifying the claimant as falling within the risk category.

16. In the course of the appeal we were referred to various decisions of the Tribunal. In the [2003] UKIAT 00013 B (SM Kosovo), (Mr J. Freeman, chairman) the Tribunal dismissed the appeal of the appellant of mixed ethnicity, and who was found not to be easily identifiable as a Roma. In paragraph 13 of the determination, the Tribunal was unable to see that a young single Albanian-speaking and-looking man with no family times could be identified by others as a half-gypsy or would identify himself as such, if there was a risk in doing so. In our judgment, this determination is a simple matter of common sense reached by the same method of reasoning that we have adopted.

17. We were also referred to the decision of the Tribunal in an unreported case decided in 2004, HX18260-2003, (Mr P. Lane, chairman) in which the Adjudicator had not been referred to the decision in B (SM Kosovo) which had been promulgated only three days before. The Tribunal decided that the murder of the applicant's father because he was a collaborator, and the shooting of the applicant's brother, rendered relocation impossible. The issue as to whether the claimant would be identified as a half-Roma and the son of a collaborator was not considered in the appeal as it has been before us. The decision, in our judgment, does not assist the claimant in establishing a means by which his past will become known to others on return.

18. More importantly, we are satisfied that it is inappropriate for the Tribunal to consider a case that has not been identified by the Tribunal deciding it as suitable for reporting. The decision of a Tribunal not to report a case is a positive act. It should not be regarded as an oversight. It may be that issues which could and should have been canvassed have not been canvassed. In such cases, it is not for the Tribunal to deal with issues that have not been raised. Where this occurs, the Tribunal is unlikely to find that it would be appropriate to report the decision. Similarly, in an appeal where neither party has referred to sufficient background material to satisfy the Tribunal that its decision is a comprehensive assessment of the issue of risk on return, the Tribunal will not direct that the determination is to be reported. The fact that a Tribunal determination has not been reported should mean either that it contains nothing of interest except to the parties to the appeal or that it cannot safely be relied upon as offering guidance.

19. In our judgment, it is not for the parties to seek to introduce unreported determinations simply because the decision supports the outcome they seek. The criteria for relying upon a decision that has not been reported are strict. Practice Direction No 10 (CA3 of 2003) provides:

“5. Permission will be given only in exceptional cases, and even more rarely in relation to Adjudicator determinations. An application for permission to cite an unreported determination:
(i) must include a full transcript of the determination,
(ii)must identify the proposition for which the determination is to be cited,
(iii)must certify that that proposition is not found in any reported determination of the Tribunal, and has not been superseded by a decision of higher authority, and
(iv)must be accompanied by a summary analysis of all other decisions of the Tribunal, and all available decisions of 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. This analysis is intended to show the trend of IAT decisions on this issue.”

20. In the present appeal, no application was made in writing prior to the appeal. The application was made orally. We consider that it is only in exceptional cases that the application can properly be made at the hearing, if only because the summary analysis of other decisions may require time for the opposing party to research and consider. It is difficult to envisage any circumstances where the application can be made orally. Our reasons are as follows. The application requires the principle on which reliance is sought to be identified. This can rarely be properly considered by the Adjudicator unless it is reduced to writing. The summary analysis of other decisions by the Tribunal (and higher) must inevitably be put in writing. More importantly, it imposes upon the representative the burden of certifying that he has done sufficient research to commit himself to stating that the proposition is not found in other decisions and has not been superseded by higher authority. A written certificate focuses the mind and emphasises the responsibility of certification.

21. As is made clear in the notes to the Practice Directions, the purpose of maintaining a body of decisions upon which practitioners and Adjudicators can rely is to enable a check to be kept on the number of authorities that are cited both before the Adjudicator and the Tribunal. In our judgment, it would be a retrograde step if it became commonplace for practitioners to seek to introduce unreported decisions and to prolong the length of hearings unnecessarily by the consideration of applications to cite them when the real issue in the appeal is whether the reasoning in the reported case-law should be applied in the particular circumstances of the appeal before the Adjudicator.

22. The Practice Direction is clear. It should be applied strictly. In the present appeal, the Tribunal considered the report de bene esse. That is not the approach that should be adopted in future cases where there has been no compliance with the terms of the Practice Directions and, in particular, in the absence of the certificate.

Decision: The appeal of the Secretary of State is allowed.

Andrew Jordan
Vice President
13 July 2004