The decision

AP (Roma) Croatia [2004] UKIAT 00269


Date of Hearing: 16 September 2004
Date Signed: 16 September 2004
Date Determination Notified: 24th September 2004


Mr S L Batiste (Vice-President)
Mrs R M Bray JP
Mr D C Walker






For the Appellant: Ms M Glass, instructed by Messrs Pearson & Winston
For the Respondent: Ms T Hart, Presenting Officer.

1. The Appellant, a citizen of Croatia, appeals, with permission, against the determination of an Adjudicator, Mr A G O’Malley, dismissing his appeal against the decision of the Respondent on 9 May 2002 to refuse leave to enter and refuse asylum. By reason of the date of the Respondent's decision, the "error of law" limitation on appeals to the Tribunal under the Nationality, Immigration and Asylum Act 2002 does not apply.

2. The Appellant’s claim can be summarised as follows. He was born on 4 January 1982 in Baranja in Eastern Slavonia and he and his entire family are of Roma origin. He is a member of the Serbian Orthodox Church. In 1992 his father fought for the Serbs against the Croats. The war ended in 1995. In 1998, when the Croatian authorities took power in Eastern Slavonia, Croatian returnees came back. The Appellant suffered humiliation and harassment in school. In 1998 he was badly beaten up by his Croat schoolmates. When the United Nations forces departed from Croatia, the situation deteriorated further. He and his family were exposed to threats by Croat police because of his father's involvement in the war. They were repeatedly warned either to leave or they would be killed. The harassment continued from the spring of 1998 until 17 July 1999 when he and his family left Croatia. In that period the threats were not carried out. Members of his family, including uncles and cousins have been granted refugee status in the UK. His parents, who voluntarily returned to Serbia because of the illness of his grandmother, are now in the Irish Republic and seeking asylum there. The Appellant also made an Article 8 claim in respect of his marriage on 19 April 2001, one month before he made his application for asylum, to Sanja Todorovic.

3. The Adjudicator concluded that the Appellant was a credible witness, albeit that his claim was lacking in detail. He gave an account of the difficulties experienced by him at school, however he is now an adult and no longer at school. The Adjudicator accepted that Roma continue to be discriminated against in Croatia by some members of the local population. This did not however amount to persecution and in any event the objective evidence showed that the government of Croatia did not support discrimination against the Roma and would provide a sufficiency of protection for him if it were needed. With regard to article 8 the Adjudicator concluded that return would be in pursuance of a legitimate objective and proportionate. There was no insuperable obstacle to the Appellant returning to Croatia and making an application under the Immigration Rules to join his spouse in the United Kingdom rather than queue jumping, as described by the Court of Appeal in Mahmood.

4. The grounds of appeal argue that the Adjudicator failed to put sufficient weight on the evidence of the threats to the Appellant's family from the local Croat population and police and erred in relying upon the US State Department report to show that there would be a sufficiency of protection, when there was other evidence suggesting the contrary.

5. At the outset of the proceedings before us, Ms Glass indicated that she did not wish to proceed with an application to extend the grounds of appeal to cover a challenge to the Adjudicator's decision in respect of Article 8. She did however raise one preliminary matter. It was that the Appellant had been served with the removal directions to Hungary. However, an examination of our case file showed that the removal directions had been set to Croatia. It also showed that the refusal letter dealt with the situation in Croatia. Ms Hart said that there was nothing on the Home Office file concerning removal directions to Hungary and everything on it suggested that the removal directions had been set and served in relation to Croatia. We examined the removal directions to Hungary, produced by Ms Glass, with those on the case file to Croatia. It is plain that the same basic document has been used in both but either the word Hungary has been deleted and replaced with Croatia, or vice versa, on one of them. We are satisfied on the evidence before us that in this appeal the removal directions were properly set to Croatia and duly served on the Appellant. If there has been any error, it has been corrected. In any event, this is not an appeal against removal directions but against refusal of leave to enter after refusal of asylum. There is therefore nothing of material significance in this preliminary point.

6. The situation in Croatia has been considered by the Tribunal in a number of cases over the last two years, following the changes brought about by the new government in that country and its desire that Croatia should become a member of the European Union. It has accepted that it must meet amongst other things the human rights conditions necessary to achieve that aim and is engaged in a process to bring this about. In SK [2002] UKIAT 05613*, the lead and compendium determination in five selected test cases, the Tribunal, chaired by its then President, Collins J, considered detailed submissions and comprehensive objective material concerning Croatia. Its declared aim, endorsed by the Court of Appeal, was to provide authoritative general guidance on the current situation in Croatia and the issues most frequently raised in Croatian appeals. The determination was promulgated on 3 December 2002. The Tribunal assessed the evidence relating to the common complaints and reached the following conclusions in paragraph 40.
“The material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the European Convention on Human Rights. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused by it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian government, despite the difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection. It follows that we accept the submissions made by Mr Wilken, set out in detail in his skeleton argument and more particularly in Annex 2 to it. Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has we are satisfied that removal is justified by a proper control of immigration.”

7. SK was reviewed by the Tribunal in the light of further objective evidence in DK (Return - Ethnic Serb – Upheld SK – Accommodation) Croatia CG [2003] UKIAT 00153. As its title suggests, the Tribunal on this occasion upheld the views reached in SK. Both these cases were further reviewed by the Tribunal and upheld, again in the light of further objective material and developments in Croatia, in DM (HDZ) Croatia CG [2004] UKIAT 00024 and BD (Application of SK and DK) Croatia CG [2004] UKIAT 00032.

8. Whilst we accept, as Ms Glass observed, that all these cases dealt specifically with the risk on return for ethnic Serbs rather than Roma, we consider they are nevertheless relevant and material in this appeal because of the detailed consideration given to a very wide range of objective material concerning the sufficiency of protection available from the present Croatian government generally to those who for one reason or another (including some who had fought in the civil war for the Serbs) might fall foul of local Croat populations, local officials and local police. The conclusion by the Tribunal in the four country guidance cases that the government of Croatia, being committed to seeking membership of the European Union, offers a sufficiency of protection for members of minorities who might face risk and is actively addressing their specific concerns, is relevant and material in this appeal. It is also noteworthy that the Tribunal in SK addressed the question of sufficiency of protection not only in the context of Horvath [2000] Imm AR 205 CA, subsequently affirmed in the House of Lords, but also having regard to the guidance of the Court of Appeal in Svazas [2002] EWCA Civ 74, extending the Horvath principles to situations where rogue agents of the state are involved in ill-treatment, as was in part the situation in the appeal before us, as Ms Glass has pointed out.

9. We therefore adopt the general reasoning and conclusions of the Tribunal in the above cases, and have applied them in our assessment, along with the guidance in Horvath and Svazas. Nevertheless we accept that none of these cases dealt specifically with the position of Roma in Croatia and we would therefore need to assess the further objective evidence produced to us to see whether those general conclusions apply in this appeal. We note it was envisaged in SK that there could be exceptional situations, and that each case would have to be considered on its merits. This we have done.

10. Ms Glass first challenged the Adjudicator’s findings of fact. She said he was wrong to say that the claim is entirely lacking in detail. She submitted that there was considerable detail given if one took into account both the asylum interview and the Appellant's written statement, as well as his oral evidence. We consider that this is a matter of semantics and of no material relevance. The reality is that the Appellant's evidence was rather generalised in nature and did not offer specific detail of the general assertions. However the Adjudicator's overall conclusion on credibility is clear. At the beginning of paragraph 17, he said effectively that the Appellant was a credible witness notwithstanding the lack of detail. Indeed, it is plain, reading the determination as a whole, that the Adjudicator assessed the Appellant's claim at its strongest and took into account all the relevant elements of it. This includes the Appellant's evidence that his father fought during the conflict for the Serbs, as is recorded in paragraph 9 of the determination. We can see no material error in the Adjudicator's findings of fact relating to the Appellant personally.

11. Ms Glass then referred us to various passages in the objective evidence before us. The objective evidence relied upon by her is contained in the three substantial bundles submitted on behalf of the Appellant. The specific passages to which she referred are contained in her list of essential reading.

12. One specific incident is referred to by a variety of sources. It relates to a serious physical attack on a 36 year old Romani, Semso Secic, in April 1999, which involved hospitalisation for 6 days. Mr Secic claim that he did not receive adequate medical assistance and that the police failed to take sufficient steps to bring the perpetrators of the crime to justice. In April 2001 he filed a complaint with the Croatian Constitutional Court claiming that the failure of the Croatian authorities to investigate the attack and initiate criminal proceedings against its perpetrators amounted to a violation of his constitutional rights. As of March 2004 no decision had been reached on the complaint. Moreover in January 2001 his son was verbally and physically attacked and also filed a criminal complaint against unknown perpetrators and again the police failed to launch a thorough investigation into the assault. In November 2002 both father and son, with the support of the European Roma Rights Centre, filed an application to the European Court of Human Rights claiming that the Croatian authorities had violated Article 3. The case is still pending.

13. Not surprisingly the material before us from the ERRC deals extensively with this incident and also bases a number of general assertions concerning discrimination in society and in the criminal justice system, and lack of protection for Roma, upon this and a relatively limited number of other specific examples. The Croatian Helsinki Committee report also speaks of Roma “often falling victim to racial intolerance and violent attacks”. According to police reports, five attacks qualifying as criminal plus two misdemeanours were committed at the expense of the Roma people. The Committee concluded that judging by the everyday situation in Croatia there was no doubt that in reality the number of attacks against Roma was much greater than that recorded in the police data. To put this into context, several reports estimate that the current Roma population in Croatia is between 30,000 and 40,000 overall. Amnesty International also makes similar observations and has expressed concern at the failure of the Croatian authorities to thoroughly and effectively investigate violent attacks against returnees and members of the Romani communities and to bring the perpetrators of these abuses to justice.

14. The US State Department report for 2003 confirms that the general protections set out in the Constitution are extended to all citizens, including Roma. Nevertheless violence, harassment, and discrimination against Roma continued. They faced many obstacles, including language, lack of education high unemployment and widespread societal discrimination. However in October 2003 the government adopted a national programme for Roma that was developed during the year with significant input from both international and local NGOs. This programme identified the educational, health, social and employment measures that if taken would help the Roma to integrate better into the social and political life. However the report noted that doubts had been expressed from some quarters, including Roma representatives, as to whether the government was properly committed to this, given the actions of some local authorities to introduce segregated schooling for Roma.

15. The OSCE report of April 2004 also deals with this initiative and adopts a relatively positive approach to the government's actions and intentions towards the Roma. It states
“In October 2003, the government adopted a National Programme on Roma that covers key areas where Roma face obstacles to full integration in Croatian society such as educational, employment and social programmes. It proposes specific measures by which these problems should be remedied, including legislative reform and concrete actions to be undertaken by relevant State bodies. While certain measures are already ongoing, implementation of the bulk of the programme is not scheduled to begin until 2004.”

16. Our assessment of the objective material overall shows that there continues to be strong societal discrimination towards the Roma as indeed there is towards the Serb minority population also. It also shows that the government of Croatia in its drive towards membership of the European Union is taking active steps to address the difficulties that exist. It does not condone racial discrimination. There have been some prosecutions, albeit that the Roma organisations consider that more severe measures should be taken and that what is being done is not enough. However prosecution in alleged racial attacks, especially when the perpetrators are unknown, is notoriously difficult, as we have found in the UK on several high-profile occasions recently. The lack of a successful prosecution cannot in itself be taken to mean that there is in practice no sufficiency of protection. Moreover there are avenues of complaint available against shortcomings by police or officials, as Mr Secic has demonstrated by his appeal to the Constitutional Court.

17. Ms Glass has argued that Roma are in a worse position than the Serbian minority because they have always been discriminated against and this was made worse by their support for the Serbs during the war. We do not consider on the evidence before us that the position of the Roma minority in Croatia is materially worse than that of the Serbian minority as described in SK. There has been a long history of antipathy between the Croats and the Serbs resulting in periodic bloodletting over the years, most recently in the war during the early 1990s. Clearly in the late 1990s feelings ran strong on both sides when memories of the dreadful experiences during the conflict were fresh. The evidence suggests, as identified in SK, that passions have cooled somewhat and that Croatian society is moving on and seeking acceptance within the wider European Community. We maintain that the assessment by the Tribunal in SK and in the other cases described above in relation to the Serb minority, reflect also the position in relation to the Roma. We consider that there is in general, and within the terms described in Horvath and Svazas, a sufficiency of protection available to the Roma as well as to the Serbs.

18. With regard to the specific circumstances of this Appellant, his account shows that although the family received a number of threats in the period up to 1999, none of these threats were carried out. It may well be that some local policemen were involved in the threats and harassment, but in the changed circumstances since 1999, the risk of conduct of sufficient severity to cross the high threshold required to constitute persecution or in breach of Article 3 does not now amount to a real risk. Moreover if there were such a risk, there would be a sufficiency of protection available to the Appellant. He is no longer at school and the experiences he had whilst at school in Croatia up to 1999 will not therefore be relevant to the current assessment of his risk on return. He is now a young adult. Ms Glass suggested that he would be at additional risk because his father fought for the Serbs during the war. We do not agree. The Appellant was not a combatant himself and he will not be returning with his father who, having voluntarily left the UK for Serbia, has now gone to claim asylum to Ireland. We do not consider that there is anything in the Appellant's evidence of his father's military involvement that would cause even his father any current real risk on return, let alone the Appellant by association.

19. Thus we conclude that the Adjudicator's assessment of the specific risk on return to this Appellant both in respect of asylum and Article 3, and the availability of a sufficiency of protection, is on the facts of this appeal fully in line with the country jurisprudence of the Tribunal and the objective evidence and, notwithstanding the matters raised by Ms Glass, reveals no arguable error.

20. Accordingly, for the reasons given above, this appeal is dismissed.

Spencer Batiste
(Vice President)

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