Tribunal decisions

The decision

ar

Asylum and Immigration Tribunal
ES (Ashkaelians, mixed Ashkaelian ethnicity) Serbia and Montenegro (Kosovo) CG
[2006] UKAIT 00071

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 5 May 2006

On 18 September 2006

Before

SENIOR Immigration Judge STOREY
Mr c p o’brian
Mr c thursby

Between

Appellant

and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr R Roebuck, Counsel, instructed by Zelin & Zelin Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

i) Persons of Ashkaelian ethnicity or mixed Ashkaelian ethnicity do not in general face a real risk of persecution or treatment contrary to Article 3 on return to Kosovo.

ii) This decision replaces as current guidance FM (IFA – Mixed Marriage – Albanian – Ashkaelian) Kosovo CG [2004] UKIAT 00081 and AB (Ashkaelia) Serbia and Montenegro CG [2004] UKIAT 00188. It also replaces FD (Kosovo-Roma) CG [2004] UKIAT 00214 insofar as that decision has any ongoing bearing on the issue of risk to Ashkaelia and persons of mixed ethnicity generally.

DETERMINATION AND REASONS

1. The appellant, born on 22 August 1984, is a national of Serbia and Montenegro from Kosovo. He is of mixed ethnicity, his father being Ashkaelian, his mother Albanian. As we shall see, the background evidence contains numerous variations in how “Ashkaeli” and “Ashkaelian” are spelt, but we adopt the spelling most commonly utilised by the Tribunal. The appellant arrived in the United Kingdom on 21 July 1999 and applied for asylum. His application was refused on 6 December 2001. Being a minor he was however, granted exceptional leave to remain for twelve months. He applied for this to be extended. On 20 May 2004 the respondent refused to vary his leave. He appealed on asylum and human rights grounds. His appeal was heard by the Adjudicator, Mr L.J.R. Lobo. In a determination notified on 21 December 2004 he allowed the appellant's appeal on asylum and human rights grounds (including Article 8).

2. By virtue of transitional provisions made under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 the permission to appeal which was granted to the respondent took effect as an order for reconsideration. On 13 March 2006 an AIT panel consisting of Mr P.S. Aujla, Immigration Judge, Mrs M.L. Roe and Mr D.R. Bremmer JP, found that there was a material error of law. Their reasons were as follows:
1. The Secretary of State for the Home Department (the Respondent) applies with permission of the Tribunal for reconsideration of the determination of an Adjudicator (Mr L J R Lobo) allowing the Appellant's appeal on both asylum and human rights grounds against the Respondent's decision of 20 May 2004 refusing to vary the Appellant's leave to enter or remain.
2. The Appellant, born on 22 August 1984, is a citizen of Serbia and Montenegro (Kosovo). He arrived in the United Kingdom on 21 July 1999 and claimed asylum on arrival. The Respondent refused his claim for the reasons set out in his letters of 06 December 2001 and 20 of May 2004. However, he granted him exceptional leave to remain until 21 August 2002. The Respondent refused to vary the Appellant’s leave to enter or remain on 20 May 2004. The Appellant appealed against the Respondent's decision. The Adjudicator heard the appeal on 07 December 2004 and allowed it in his determination promulgated on 21 December 2004. The Respondent appealed against the Adjudicator's decision. The Tribunal granted permission to appeal on 07 February 2005.

3. Permission to appeal was granted by the Immigration Appeal Tribunal. Following the commencement of the appeal provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and by virtue of article 5 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005, the grant of permission takes effect as an order for reconsideration of the Appellant’s appeal limited to the grounds upon which permission to appeal was granted.

4. The Appellant claimed to be a refugee. He stated that he belonged to a mixed ethnicity. His father was Ashkaelian and his mother was Albanian. His family were persecuted by the Serbian authorities due to the Albanian links. In August 1998 Serbian police officers came to his home in search of evidence of KLA support. They beat the Appellant and his father and the house was ransacked. The same incident occurred in January 1999 and in March 1999. The Appellant was ordered to leave Kosovo. He hid in neighbouring forest. A month later his home was burnt down and he decided to flee Kosovo to avoid further incidents. The Appellant came to the United Kingdom with his cousin. He feared persecution from the Serbian authorities if returned.

5. The Adjudicator set out his findings on asylum in paragraphs 19 and 20 of the determination. He stated that the Appellant would be easily recognised as belonging to mixed ethnicity and he therefore would be at risk on return. He also considered article 8 and found that the Appellant had an established family life with his cousin and that he also had an established private life. His removal would constitute an interference which would not be proportionate. He dealt with the proportionality issue in paragraphs 28 and 29. He allowed the appeal on both asylum and human rights grounds.

6. Both representatives agreed that there was a material error of law on the part of the Adjudicator in respect of his asylum determination. We agreed. The Respondent had placed before the Adjudicator at the hearing a copy of the country guidance decision of the Tribunal in FD (Kosovo - Roma) CG [2004] UKIAT 00214 in which the Tribunal clearly stated that the evidence as a whole did not justify the conclusion that the ethnic discrimination and violence to which Roma were at times subjected from other groups was of a level or frequency to mean that it constituted a real risk of persecution for a Convention reason. They agreed that the Adjudicator had allowed the asylum appeal whilst ignoring the country guidance decision. We were satisfied that there was a material error of law on the part of the Adjudicator.

7. There was no dispute between the parties before us as to the need for this matter to be adjourned for further reconsideration. The sole issue was whether or not both asylum and article 8 should be reconsidered. Mr Ouseley stated that the appeal should be considered as a whole, including article 8. Mr Richardson, however, stated that the ground of appeal which related to article 8 had only challenged the Adjudicator’s approach to article 8 (in view of DM Croatia) but had not challenged the substantive disposal of the proportionality issue by the Adjudicator.

8. Mr Ouseley submitted that the Respondent’s ground 2 adequately covered the whole article 8 issue. That ground had adequately identified the error of law and therefore, since the Adjudicator’s determination of the article 8 claim by reference to his finding of family life and the proportionality exercise was flawed, the whole article 8 issue should be reconsidered.

9. Mr Richardson submitted on the other hand that ground 2 did not identify an error of law in terms of attacking the Adjudicator’s substantive disposal of the article 8 issue. It only challenged his approach in that it was not in accordance with DM. He submitted that it was not open to us to set aside the Adjudicator’s disposal of the article 8 claim, however erroneous it was, since ground 2 did not specifically attack the substantive disposal. He relied on Miftari and the comments of Mr Justice Collins in Wani as to the extent of our jurisdiction. He submitted that, on the basis of ground 2, it was not open to us to interfere with the Adjudicator’s substantive decision on article 8.

10. We considered the matter and came to the conclusion that Mr Richardson's submission made sense. We were satisfied without doubt that the Adjudicator’s determination of article 8, both in his finding of family life and his decision on proportionately, was completely erroneous. However, we agreed with Mr Richardson that the Respondent’s ground 2 only attacked the Adjudicator’s decision to embark on considering article 8. It did not attack the substantive decision made by the Adjudicator. If the Respondent were to invite us to set aside the article 8 determination, the Respondent had to plead a further ground identifying the error which clearly was present in the determination. In the absence of that we concluded that it was not open to us to interfere with the article 8 decision, although it was totally erroneous.

11. The matter is therefore adjourned for further reconsideration which will take place at Field House (not at Taylor House as mentioned at the hearing). Further reconsideration will be limited to the issue of asylum and article 3 only.’

3. The panels’ directions to the parties stated:

“(1) Only asylum and Article 3 to be reconsidered.

(2) The Adjudicator’s Article 8 decision to stand.”

4. At the hearing before us we sought first to clarify the proper ambit of the second-stage reconsideration. We explained to the parties that we could not accept the direction of the previous panel in relation to either Article 3 or Article 8. That was because, as a matter of law, human rights arguments could not succeed in the context of an appeal such as this. This was an appeal against a refusal to vary leave. As such we were bound to follow and apply JM* (Rule 62(7)), human rights unarguable) Liberia [2006] UKAIT 00009. The appellant’s grounds of reconsideration reliant on Article 8 (and Article 3) grounds were incapable of succeeding. The parties said they were in agreement with us on this point.

5. Accordingly this reconsideration is confined solely to the asylum grounds of appeal.

6. Mr Walker confirmed that the appellant's credibility was not in dispute in this reconsideration. We have already noted the summary of his asylum claim as given by Immigration Judge Aujla, but for convenience we restate it here in our own words. The appellant is of mixed ethnic origin. His father was Ashkaelian. His mother was Albanian. As a family they were persecuted due to their Albanian links. In August 1989 twenty-five Service police officers came to their home in search of evidence of KLA support. They beat the appellant and his father. They ransacked their home. This incident was repeated in January 1999 and March 1999. The appellant and family were ordered to leave Kosovo, but they hid in neighbouring forests. A month later their home was burnt down. He subsequently decided to flee to avoid further incidents of persecution. Reflecting this account, the original basis of his asylum application in the UK was that he feared persecution at the hands of the Federal Republic of Yugoslavia authorities. To this he later added a claim that he feared he would also suffer ill-treatment amounting to persecution for a Convention reason from Albanian extremists who will want to take revenge against any Ashkaelians and those of mixed ethnic origin. He claimed that his Ashkaelian links will be discovered because of his accent and because he will have to register with the authorities and in doing so give details of his background and family.

7. Given the terms of the decision that there was a material error of law, we are not concerned any more with the Adjudicator Mr Lobo’s findings on the appellant's claim. However, in submissions Mr Roebuck drew our attention to various passages in the April 2005 CIPU Country Report on Kosovo, which confirmed, he said that persons of mixed ethnic origin and Ashkaelians remained at risk in Kosovo. He urged us not to accept that the appellant could achieve safety on return by settling in an Ashkaelian enclave. That would entail for him living in a ghetto in which he would be at risk of attack from hostile outsiders and would have to tolerate standards of living which fell below basic international norms. UNHCR continued to emphasis the fragility of the return process and the problems which would ensue from forced returns for both Ashkaelians and persons of mixed ethnicity.

8. Mr Walker disagreed on both counts. He said the relevant parts of the CIPU Report showed an improvement in the position of Ashkaelians and those of mixed ethnicity. He did not think that this appellant would be identified as of Ashkaelian or mixed ethnicity in any event.

Our decision
9. It is common ground that there is no longer anything about the appellant's circumstances that would lead to him being targeted by anyone with personal knowledge of him or his family. Put another way, there are no specific factors relating to the appellant's personal history of relevance in this case beyond the fact that he will be returning as a young man of mixed Ashkaelian/Albanian ethnicity on his own without any apparent family network of support.

10. We can be short with the question of whether the appellant would be identified as of Ashkaelian or mixed ethnicity. Mr Walker initially sought to argue that the appellant would not be perceived as such. We find that he would. We do not have any evidence before us to help us with whether the appellant in physical terms looks Ashkaelian or of mixed Ashkaelian ethnicity. However, we think there is force in Mr Roebuck’s submission, based on the appellant’s and cousin’s statements, that his way of speaking and acting, combined with the fact that he would be asked on return, both by officials and neighbours about his origins, would mean he would be, or would soon come to be, perceived as of mixed Ashkaelian ethnicity. We bear in mind the approach taken to the issue of identification of mixed ethnic origin in the case of a person of mixed Roma ethnicity from Kosovo in Hysi [2005] EWCA Civ 711 and the Court’s observation at para 26 that:

“We have serious reservations about whether it is realistic to conclude that the arrival in one part of Kosovo of a young man, albeit with an Albanian surname, aged 18 years, who has spent the past three years or so in England, would not, by a sequence of perfectly understandable questions, eventually lead to the discovery of the appellant's mixed ethnicity, his flight to England from a different part of Kosovo, and if so, too, the reasons for it…”

11. All hinges in this appeal, therefore, on the issue of whether the appellant, as a person of Ashkaelian/Albanian mixed ethnicity would be at risk on return to Kosovo.

12. We turn first to consider existing Tribunal case law on this issue. There are several cases which furnish guidance of relevance to this case, in particular RB (Risk – Ethnicity – Gorani – Sanxhali) Kosovo CG [2004] UKIAT 00037, FM (IFA – Mixed Marriage – Albanian – Ashkaelian) Kosovo CG [2004] UKIAT 00081, AB (Ashkaelia) Serbia and Montenegro CG [2004] UKIAT 00188 and FD (Kosovo – Roma) Serbian and Montenegro CG [2004] UKIAT 00214. However, since they build on each other over time, it is sufficient to focus below on the two most recent cases. The first is the Country Guideline case of FD. This case concerned a Kosovan whose father was a Roma and whose mother was a Serb. Having analysed a considerable number of background country materials the Tribunal concluded:

’50. The picture which we draw from the various reports is that there has been a decrease in violence against the ethnic minorities including the Roma over the last few years although incidents of violence continue to occur with Roma amongst those targeted by other groups. It is of course not possible for any system to provide a guarantee against violence and it does not suffice in order to show that there is a real risk of persecution by non-state agents against which the state is unable to offer protection, to point out that such attacks do occur. We have to bear in mind that the UNMIK police and the KPS together with the judicial system have been effective in reducing the level of attack upon ethnic minorities. There is evidence that they do investigate and prosecute before judges of improving quality, independence and diversity, those who commit such offences. The evidence does not suggest that those incidents are so widespread that the forces now present in Kosovo are unable to provide a system of physical protection to minorities, even though it cannot prevent a number of unpleasant attacks. The reported incidence of attacks is hard to gauge from the material when set against the fact that there are some 36,000 Roma in Kosovo and 1,200 RAE returned in 2002 alone; but it does not appear to be high.

51. Romas do not all live in Roma enclaves or in camps and those who live outside do not all face persecution; the picture is somewhat variable depending on time and place. We assume however that the claimant would not return to his village but would instead go to a Roma enclave or to a camp. We make that assumption because of what he said about being the only Roma family there and the likelihood that his house will have been taken over by ethnic Albanians. The position in an enclave, however, does not suggest that there is a real risk of persecution there; Roma concerned about the security situation can go to such enclaves where there is a greater prospect of collective protection than outside.

52. There is no evidence that conditions in the camps, should the claimant go to one, breach Article 3 of the ECHR. They are overcrowded and conditions are poor. The fact that they are overcrowded suggest that the security situation, freedom of movement and discrimination are a long way from what is aimed for. However, the threshold for such a breach is very high.

53. The evidence shows that the general conditions of life for many Roma involve routine and quite severe discrimination in accessing public services, poverty, a high degree of dependancy on humanitarian aid and fears for their future and security. We do not consider that the conditions as evidenced by the various reports, however, show that there is a real risk that the claimant's Article 3 rights will be infringed if he is returned. There is humanitarian aid; some are able to access public services; not all are subject to the same degree of discrimination. The position in enclaves or camps is likely to afford scope for greater collective opportunities for protection and the provision of services.

54. The UNHCR is legitimately concerned about more than just refugee status and addresses humanitarian issues without necessarily drawing a distinction, let alone a precise, distinction between Geneva Convention refugees and those whom it considers should still have humanitarian protection. But it does not apply the same test on the face of the material as is required by Article 3 jurisprudence, which may explain why it expresses its concerns and why the Tribunal's assessment of whether someone can be returned can properly differ.

55. It is plain that the improving situation in Kosovo has enabled ethnic minorities to return in increasingly significant numbers although caution is exercised about their enforced or large scale return. There is some evidence that ethnic Albanians take violent or destructive action to prevent those returning doing so to the multi-ethnic areas where they once lived and that there has been some secondary displacement. But with the international force in Kosovo, even if they are unable to prevent such an unwelcome response to returns, there is no evidence that those who returned have been persecuted and unable to find state protection or alternative areas in which to live, notwithstanding the discomfort and poor conditions in which they may then have to live. None of the evidence suggests that there would be a breach of Article 3. In all those circumstances even though we can understand why the UNHCR discourages the additional load which would be placed upon welfare and aid resources there, we do not consider that its views preclude this claimant’s return.’

13. The Tribunal also gave separate and specific consideration to evidence about March 2004 outbreaks of inter-ethnic violence and to the UNHCR Position Paper of 30 March 2004. It concluded neither this evidence nor this UNHCR paper caused it to change its analysis of the situation.

14. The most recent case reported dealing with ethnic minorities is SK (Roma in Kosovo – update) Serbia and Montenegro [2005] UKIAT 00023. This case concerned a Roma from Kosovo. Although not designated as a country guidance case, the panel did review the extent to which FD remained valid as guidance. The panel looked at evidence which had come into existence since FD. That evidence included the August 2004 UNHCR Position Paper. At paragraph 16 it stated:

’16. The FD case was heard on 13 February 2004. The determination was promulgated on 14 July 2004. Paragraphs 1 to 56 of the determination were written before the outbreak of violence in mid-March 2004. the Tribunal's conclusions, in summary, were:

(a) That Roma do not all live in Roma enclaves or in camps and that those who live outside do not all face persecution; the picture is somewhat variable, depending on time and place (para 51);

(b) Roma who are concerned about the security situation can go to an enclave where the there is a greater prospect of collective protection than outside (paragraph 51);

(c) Conditions in camps are overcrowded and poor; freedom of movement and discrimination (which, for many Roma, involve routine and quite severe discrimination in accessing public services) are a long way from what is aimed for. However, they do not reach the Article 3 threshold (paragraphs 52 and 53);

(d) There is some evidence that ethnic Albanians take violent or destructive action to prevent those returning from doing so to the mufti-ethnic areas where they once lived and that there has been some secondary displacement. However, there is no evidence that those who returned have been persecuted or unable to find state protection or alternate areas in which to live (paragraph 55);

Following the outbreak of inter-ethnic violence in Kosovo in mid-March 2004, the Tribunal invited submissions from both parties. Following the publication of the UNHCR Position Paper on 30 March 2004, the Tribunal invited further submissions explicitly addressing that paper (see paragraph 57 of the determination in the FD case). Neither party made any submission. After considering the UNHCR paper:

(e) the Tribunal saw no reason to revise the view it had earlier reached that the claimant in that case would return to a Roma enclave or camp, neither of which would involve a breach of Article 3 (paragraphs 59 and 64);

(f) that Serbs were the primary targets of the violence in mid-March, although Roma and Ashkaelia were also attacked (paragraph 60); that the violence of mid-March 2004 represented an extreme but temporary expression of those inter-ethnic hatreds which simmer below the surface of daily life, with sporadic violent eruptions against which the UN authorities and KPS provided a sufficient degree of protection. The violence is not of such a scale that it prevented an effective, controlling protection response from the authorities (paragraphs 64, 65 and 66). It was of the order of a week before NATO forces were sufficiently reinforced to quell the violence though the prospects of identification and prosecution of its instigators are limited (paragraph 60). The events of mid-March 2004 are a clear demonstration of the promptitude and effectiveness of the protecting responses (paragraph 65);

(g) that there was nothing of substance before the Tribunal to show that the political or inter-ethnic landscape has changed such that there is a real risk of treatment in breach of Article 3 or of persecution under the Geneva Convention for reasons of ethnicity. Rather, the Tribunal found that the mid-March incidents demonstrate that the tensions lead to sporadic and unpleasant violence which the authorities have the will and ability to suppress (paragraph 67).

15. At paragraphs 23-27 the Tribunal turned to consider the principal points which it saw as emerging from the CIPU Bulletin of July 2004:

’23. There are two main points which emerge from the CIPU Bulletin of July 2004 concerning freedom of movement. Paragraph 3.9 of the Bulletin states that freedom of movement for ethnic minorities has practically ceased in Kosovo. However, this relates in particular to Kosovo Serbs, although Roma and Ashkaelia are also mentioned as being adversely affected in their movement in Kosovo, reducing their capacity to work as day labourers. Whilst this may affect those who need to travel on a daily basis to work, it is clear from paragraphs K.6.63 to K.6.65 of the CIPU of October 2004 that returns (both forced and voluntary) are managed. We do not therefore consider it reasonably likely that a returnee would not be able to travel safely to a Roma enclave or camp.

24. Paragraph 4.8 of the CIPU Bulletin of July 2004 refers to the possibility of further violence in the future. This is attributed by the April 2004 report to the UN Security Council of the then SRSG, Harri Holderi. However, we also note that he also referred to the fact that, in view of this, the KFOR and UNMIK police are maintaining a high level of visibility and presence particularly in minority areas.

25. We note, furthermore, that paragraphs K.6.87 of the CIPU October 2004 reports states that, according to the UNHCR Update paper of June 2004 (which has not been placed before us), the overall situation for the Roma, Ashkaelia and Egyptian communities since March 2004 in the main has been one of gradual resumption of the relative levels of minority rights held before the violence of mid-March 2004.

26. Mr Fripp drew our attention to the problems in Vushtrri/ Vucitrn (see paragraph K.6.896 of the CIPU October 2004 report and paragraph 3 of the UNHCR Kosovo August 2004 Paper). The Ashkaelia community in this place suffered disproportionately when compared with other minority communities elsewhere in Kosovo. We do not see that the experience of the Ashkaelia community in Vushihtrri/Vucitrn in March 2004 has any real bearing on the issue in the instant appeal.

27. On the whole of the evidence before us, we have concluded that the conclusion of the Tribunal in the FD case remain valid. There is reference to freedom of movement for Roma being adversely affected (which shows some deterioration in their situation) but, on the other hand, there is reference to KFOR and UNMIK police maintaining a high level of visibility and presence particularly in minority areas (which indicates an improvement in terms of protection). On the whole, the situation remains much the same as it was on the evidence before the Tribunal in the FD case.’

16. Before proceeding further, we note that although both FD and SK were concerned with Roma or persons of mixed Roma ethnicity, the analysis in both cases appeared to regard Roma, Ashkaelis and Egyptians (RAEs), including persons of mixed Ashkaelian ethnicity, as in much the same position. In general terms they considered that KFOR and the Kosovo Police Service (KPS) were together capable of affording protection in the event of any outbreaks of inter-ethnic violence such as that which erupted in March 2004. However, we now have before us a number of more recent reports. These cover the position of Roma as well as RAEs (Ashkaelian included) and persons of mixed ethnicity. It is important that any attempt to review the approach to risk categories adopted in previous Tribunal cases, takes these recent reports fully into account.

The Background Evidence

17. All the major reports seek to cover the position of the Ashkaelia, partly under the general category of Roma, partly under the category of “RAEs” and partly in specific terms.

18. The Home Office Country Information and Policy Unit (CIPU) Report: Serbia and Montenegro (Including Kosovo) April 2005, analyses the relative situation of Roma and Ashkaelia as follows:

CIPU Report April 2005
“K.6.86. Roma are not a homogenous or cohesive group – they are made up of various groups with different allegiances, linguistic and religious traditions, according to the ninth assessment of OSCE / UNHCR (May 2002); most have a settled rather than nomadic lifestyle. [18c](p.58) According to an article in Sociology, February 2003, the nomadic nature of Roma is held by many academic sociologists to be misunderstood, particularly within the asylum / trans-border migration process: studies of this misidentification in the Italian system shows that policy can be clouded by questions of settlement, with perceived “nomads” needing to achieve a higher threshold in relation to the need of protection than “settled” Roma. As nomadic Roma are few within the Kosovan scenario this is held to be iniquitous. [87a]

K.6.87. Although usually categorized together, Roma are distinct from the groups known as Ashkaelia or Egyptians. The following explanation of these groups is taken from the ninth UNHCR / OSCE assessment of the situation of ethnic minorities in Kosovo, dated May 2002. [18c] (p.58ff)

K.6.88. "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. In general, however, ethnic Roma clearly identify themselves as Roma and tend to use Romany as their mother tongue, although a large percentage of the Roma population can speak Serbian (and to a lesser extent Albanian) languages.” (UNHCR / OSCE assessment, ninth assessment, May 2002) [18c](p.58 – footnote)

K.6.89. Other sources, notably the Blue Guide to Albania and Kosovo, indicate that the Kosovo Roma group is small, and compared with Roma aligned with either Serb or other minorities. It concurs with the UNHCR / OSCE assessment that Kosovo Roma do clearly indicate that they are Roma as distinct from other groups, and that not all groups called Maxhupet (Albanian term for “Gypsies”) (see below) call themselves Roma:

“Only one group identifies as ethnic Roma, while other groups have a variety of identity affiliations. The former use Romani as their mother tongue, and also speak Albanian and Serbian.” (Blue Guide) [84a](p.105)

K.6.90. “The Ashkaelia are Albanian-speaking (although many can also communicate in Serbian language) and have historically associated themselves with Albanians, living close to that community. Nevertheless, Albanians treat them as separate from the Albanian community. Like the Ashkaelia, the Egyptians speak Albanian language but differentiate themselves from Ashkaelia by claiming to have originated from Egypt.” (UNHCR / OSCE assessment, ninth assessment, May 2002) [18c](p.58 – footnote)

19. However, the report goes on to note that these points of difference are not always recognized by members of the Albanian majority community in Kosovo:

“K.6.91. “It should be noted that, on the local community level, Albanians do not generally perceive the differences between the three groups, more often viewing Roma, Ashkaelia and Egyptians as one group. It should also be noted that the separations and distinctions between Roma, Ashkaelia and Egyptian vary between regions, and in some regions (Peja/Peć, for example), the Roma and Egyptian populations live in the same geographic areas, without much distinction between them on a day-to-day basis. In other areas or regions, the distinctions between the groups (including the geographic locations where they tend to live as well as their actual or perceived levels of integration with either the Albanian or Serb population) may be much more pronounced.” (UNHCR / OSCE assessment, ninth assessment, May 2002) [18c](p.58 – footnote)

K.6.92. Further information, from a Germany-based Roma support group website, undated but circa 2003, indicates that ethnic Albanians see all RAE as ‘Madschup’ alt. ‘Maxhupet’, a derogatory term which roughly equates to ‘Gypsies’. The source further suggests that treatment of Roma by the majority population depend on the state of Serb / Albanian tensions at that time and in that place.” [85a]

20. The CIPU report’s specific section dealing with Ashkaelia states inter alia that:

“Ashkaelia

S.6.88. The Helsinki group report, published October 2004, notes that:-

“Firstly a new ethnic community, the Ashkalia, ‘emerged’ in the period between the two censuses [1991 and 2002]. Being the ‘youngest’ minority in Serbia, Ashkalia are often equated with Roma or Albanians. Bearing in mind their animosity towards Albanians, such treatment is a permanent source of tension.” [7a] (p.11)

21. The principal problem in recent times for Kosovo Roma, following the fall of Milosevic, has been the perception by Albanians Kosovans that Roma generally collaborated with Serb mistreatment of ethnic Albanians. The Home Office report notes at K.6.85 as follows:

“K.6.85. Kosovo Roma have been targeted as a group because they are seen as having collaborated with Serb mistreatment of ethnic Albanians during the conflict. Allegations that some Roma took part in criminal acts with Yugoslav forces or opportunistic looting have blackened the name of others. According to UNHCR figures of 2002, quoted in the report dated 16 October 2002 published by the Council of Europe Office of the Commissioner for Human Rights, approximately 25,000 fled from Kosovo to Serbia, Montenegro or Macedonia and those who remain tended to move to Roma enclaves.” [82a](p30)

22. Nevertheless, the report recognizes that there are significant variations in the perceptions of the majority population depending on the particular area, population and locality issues:

“K.6.93. The security position for Roma, Ashkaelia and Egyptian (RAE) communities varies according to perceptions of the majority population, locality and language issues, according to the UNHCR / OSCE ninth assessment of January 2003: “This [a then trend towards greater security and freedom for Roma] 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, locality, and language issues.” [18c](p.58) UNHCR and OSCE (both in January 2003 reports) 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. [17g](p.3) [18c](p.58) This is qualified by the UNHCR / OSCE ninth report (January 2003): “Further, the ability to speak Albanian fluently may mitigate against random attacks, but even then only to a degree, as it will not safeguard against committed assailants who want to cause harm for reasons based on the person’s ethnic background.” [18c](p.58) The UNHCR also adds in its January 2003 report: “In addition to the general discrimination against the Roma and Ashkaelia, former or current links to Kosovo Serbs or Kosovo Albanians and their language orientation continue to influence their security and freedom of movement, particularly in Prishtine/Pristina and Gjilan/Gjilane regions.” [17g](p.3)

23. Although it does not set out its own treatment in chronological order, the Report sees the situation of RAE as properly being dealt with in terms of pre-March 2004, March 2004 and post-2004 timeframes.
The situation for ethnic minorities including Ashkaelia prior to March 2004
24. The report sums up the pre-March 2004 situation as follows:
“K.6.61. According to the Europa Regional Survey of Central and South-eastern Europe, 5th edition, 2005, ethnic Albanians make up approximately 90% of the population of Kosovo. The remaining 10% are made up of various minorities including ethnic Serbs, Roma, Ashkaelia, Egyptians, Bosniaks, Gorani, Croats and Turks. Following the war, there was a very high level of violence directed at Serbs, Roma and other ethnic minorities, who were seen as having collaborated with the Yugoslav oppression. Most of the perpetrators were ethnic Albanians seeking revenge or pursuing the aim of a wholly Albanian state. Large numbers of the Serbs and Roma communities fled from Kosovo. Those who remained are mostly concentrated in mono-ethnic areas. [1a](p.
K.6.62. Prior to the March 2004 riots, according to the US State Department Report for 2003, “Members of non-Serb minority communities, including Bosniaks, Egyptians, Ashkaeli, Gorani, and some Roma, reported that their security situation improved during the year, although incidents of violence and harassment continued to occur and their freedom of movement was restricted in some areas.” [2c](p.38,9)The UNHCR however maintained their position with regard to the situation of ethnic minorities in Kosovo, principally in their update paper of January 2003.[17g]
“UNHCR’s position remains that members of all minority groups, particularly Serbs, Roma, Ashkaelia, Egyptians as well as Bosniaks and Goranis should continue to benefit from international protection in countries of asylum. Induced or forced return movements jeopardize the highly delicate ethnic balance and may contribute to increasing the potential for new inter-ethnic clashes.” [17n](p.3)
K.6.64. The UNHCR were also of the opinion that, over 2003 and early 2004, some ethnic minority groups were increasing their trust in the police agencies:
“However, before the riots of 15-19 March 2004, an increase in the level of confidence towards law enforcement authorities could be observed among minorities compared to earlier reporting periods, varying slightly between region and ethnicity. Generally, Kosovo Bosniaks had greater trust in the police than members of the Roma, Ashkaelia or Egyptian communities.” [18f](p.7)
25. The Report also recorded UNHCR’s view that in the period between January 2003 and March 2004 the overall number of security incidents targeting minorities decreased:
“K.6.76. Ethnic Serbs have been the principal targets for ethnically motivated attacks. As the UNHCR June 2004 Update expresses the situation: “Kosovo Serbs remained the primary targets of inter-ethnic violence, not only in terms of the number of incidents or victims, but also in terms of the severity and cruelty of the crime.” [18f](p.5) The US State Department Report for 2003 recounts that of the 72 murders in Kosovo during 2003, 13 were of Serbs, with 7 held to ethnically motivated. [2c] (p.38) The UNHCR Update of June 2004, published August 2004, adds:

“Although the period between January 2003 and March 2004 saw further decline in the number of security incidents victimizing Roma, Ashkaelia, Egyptian, Bosniak and Gorani minorities in Kosovo, as compared to the previous reporting period covering April to October 2002, this positive trend was shattered by several high profile killings of Kosovo Serbs during the second [half] of 2003 and at the beginning of the year 2004. Subsequently, while the overall number of security incidents targeting minorities decreased, the reporting period saw an increase in violent/severe crimes victimizing Kosovo Serbs, compared to 2002.” [18f](p.5)

“During 2002 only five Serbs were murdered, compared to 12 from January to November 2003…. As a comparison, while the number of killed Serbs more than doubled, the total number of [all persons] killed remained at the same level.” [18f](p.5)(footnote 2)

26. The report also touches on certain other difficulties faced by Roma and Ashkaelia in the pre March 2004 period:

“K.5.100. The US State Department Report for 2003 mentions, (and as repeated in the USSD report for 2004 [2a](p.28) ), that Roma Ashkaeli and Egyptian children attend mixed schools with ethnic Albanians but sometimes face intimidation or are expected to work for their families from a young age at the expense of their education.[2c](p.36) In their report of activities undertaken in 2002, the Expert Committee on Education and Youth of the Standing Technical Working Group of the European Centre for Minority Issues (ECMI) expressed concern that students of these groups were under-performing academically, and that further efforts should be made to address this imbalance. [46c] Bosniaks can obtain primary education in their language but there is a shortage of Bosniak teachers at secondary level, according to the Humanitarian Law Centre (HLC)’s Shadow Report on the Implementation of the Framework Convention for the Protection of National Minorities in Serbia, Montenegro, and Kosovo of 16 January 2003.” [63b](p.30)

The Events of March 2004

27. The CIPU report also gives details of how the events of March 2004 affected the Ashkaelia in certain areas. It notes at K.4.17 that on 18 March:

“The morning was held to be relatively calm, most of the mobs having dissipated. Most mobs reassembled and the first incidents reported around noon. Large scale violence occurred in Prizren. [69c](p.49.) The afternoon and evening was punctuated with incidents of Albanian mobs on the rampage targeting Serb property, and in violent engagement with the security forces. [69c](p.49,50,51.) In the late afternoon, two Albanian mobs converged in southern Mitrovica to attack the Ashkaelia settlement of Vushtri (previously evacuated) and destroyed the entire neighbourhood. [69c](p.51.) The ICG report notes only one incident of a non-Albanian being directly threatened on Day 2 (a Serb nun held prisoner at Devic convent, Drenica); otherwise, the security forces had ensured the safe evacuation of targeted groups.” [69c](pp.52.)

28. At K.6.96 more detail is given as follows:

“K.6.96. One of the main incidents involving RAE reported widely in the analyses of the March 2004 riots was the case of the Ashkaeli community in Vushtrri/Vucitrn. According to the European Roma Rights Center (ERRC), in their photo-report of 30 March 2004, in Vushtrri/Vucitrn, 260 Ashkaelia were left homeless as two Ashkaelia neighbourhoods were burnt down by ethnic Albanian mobs. [26e]The Roma and Serb populations of Vucitrn had been driven away previously in 1999. [26e]The Ashkaelia are currently under KFOR protection in the French KFOR camp near Novo Selo. [26e]The ERRC published photographs of the destruction of one of the two Ashkaelia neighbourhoods. [26e] The UNHCR were particularly concerned in August 2004, in their Position Paper, about the Vucitrn attacks, as the Ashkaelia community had been reassembled from Ashkaeli IDPs, and the community was in nature part-integrated, part-returnee; concluding:

“The March 2004 events demonstrate that, Vushtrri/Vucitrn being a case in point, the existence of return movements (whether spontaneous, facilitated or organized) does not necessarily or immediately reflect a substantial improvement in their security situation in general. In view of this, all three communities continue to feel threatened for well-founded reasons.” [18g](p.4,5)

The Position of Ashkaelia post-March 2004
29. At K.5.72 the report goes on to describe the position for Ashkaelia several months later as follows:

“K.5.72. Regarding the Ashkaeli community in Mitrovica, the KosovaLive website relayed on 17 December 2004 the following comments of Ali Ismajli, a member of the PDAK (Democratic Party of Kosovo):
“In Mitrovicë [Mitrovica], there are currently [December 2004] 46 Ashkali families with 318 members. In 2003, nine families returned to their homes, whereas this year, there was only one. Return was voluntary and stable. We do not have problems with Albanians. We move freely and 40 of our children attend Mitrovicë schools,” Ismajli said. He said that the roads, water supply and sewage system had been repaired in the Korriku 2 neighbourhood, where the Ashkali community now lived. This, in his view, has improved the quality of life for his community.” [83f]

30. Elsewhere the report had noted the UNHCR’s position as follows:

“K.6.66. The UNHCR reiterated its position regarding the return of members of ethnic minorities to Kosovo in an updated Position Paper ‘On the Continued International Protection Needs of Individuals from Kosovo’, dated 13 August 2004, stating:

“UNHCR therefore maintains its position that members of the Serb, Roma, Ashkaelia and Egyptian communities should continue to benefit from international protection in countries of asylum. Return of these minorities should take place on a strictly voluntary basis, deriving from fully informed individual decisions. Along with Kosovo Albanians originating from areas where they are now are in a minority situation, they should not be forced or compelled to return to Kosovo. There are also certain categories of the population, whether belonging to the majority or minority communities, who may face serious protection related problems, including physical danger, were they to return home at this stage. This category also includes members of Bosniak and Gorani communities.” [18g](p.2)

….

K.6.97. In the main, since March 2004, the overall situation for the RAE communities, according to the UNHCR Update paper of June 2004, has been one of gradual resumption to the relative levels of minority rights held before the Violence. [18f](p.41.) The report does however conclude: “Overall the Roma, Ashkaelia and Egyptian communities have lost confidence towards law enforcement authorities while in some areas (for example in Pejë/Pec), they acknowledge the positive role played by certain local (majority) authorities.” [18f](p.41.)

31. The report also noted the latest US State Department report’s findings:

“K.6.67. The USSD report for 2004’s summary is as follows:-

“Although UNMIK regulations and the Constitutional Framework protect ethnic minorities, in practice, Kosovo's most serious human rights problem was pervasive social discrimination and harassment against members of minority communities, particularly Serbs but also Roma, Ashkali, and Egyptians, with respect to employment, social services, language use, freedom of movement, the right to return, and other basic rights. Violence and property crime directed at Kosovo's minorities remained serious problems.” [2a](p.32)
US State Department Report 2005
32. Turning to examine this latter report - the U.S. Department of State Report 2005 (Country Reports on Human Rights Practices (2005) – for ourselves, we note that it deals, inter alia, with the issue of returnees to Kosovo from ethnic minorities (page 30).
“The UNHCR reported that 2,048 minorities returned to Kosovo during the year, including ethnic Albanians who returned to areas where they are a minority. Overall minority returns since 2000 stood at 14,433 at the end of the year. A slightly smaller number of ethnic Serbs returned compared to 2004, when more Bosniaks and Goranis returned. Ethnic Serbs made up approximately 35 percent of returnees during the year, compared with 33 percent in 2004. Roma (including Ashkalia and Egyptians) continued to return in slightly greater numbers, making up 45 percent of the overall number of returns. In Mitrovica ethnic Serbs in the north of the city and ethnic Albanians in the south continued to illegally occupy each others' properties, hindering potential returnees.”
33. The report also describes chequered progress in the construction of relocation facilities affecting Roma, Ashkaelian and Egyptian RAEs (page 30):
“ During the year UNMIK began construction on a relocation facility to eventually accommodate approximately 531 Roma, Ashkali, and Egyptian IDPs living in three lead-polluted camps in northern Kosovo; however, all the IDPs remained in the polluted camps at year's end. World Health Organization testing showed dangerously high blood-lead levels in many camp residents. UNMIK began a concurrent donor funding campaign to rebuild the IDPs' original neighborhood in south Mitrovica, which was destroyed in 1999 by ethnic Albanians, who accused Roma of being Serb collaborators, but completed only limited clearing of rubble by year's end. Limited funding slowed the return project. On September 2, the European Roma Rights Center filed an appeal to the Kosovo prosecutor's office to initiate a criminal investigation into the matter; no formal charges had been filed at year's end.”
34. On the subject of political representation it notes (page 31):
“There were 21 ethnic minority members in the 120-seat Assembly, including 10 ethnic Serbs and 11 members of other groups, including ethnic Turks, Bosniaks, Gorani, Roma, Ashkali, and Egyptians. There were two minority PISG ministers, one ethnic Serb and one Bosniak, and three minority deputy ministers. One Bosniak and one ethnic Turk held a rotating seat on the Assembly presidency; the Serb boycott left empty the set-aside seat for one ethnic Serb. At year's end ethnic Serbs in the largest Kosovo Serb political party had not claimed their set-aside cabinet posts and continued to boycott the Assembly; however, members of Slavisa Petkovic's political party took up 2 of the set-aside seats and led a ministry. The constitutional framework requires that the Assembly reserve 10 seats for ethnic Serbs and 10 for members of other ethnic groups, but ethnic minorities were underrepresented at the municipal level.”
35. On schooling it observes (page 33) :
“UNMIK regulations require children between the ages of 6 and 15 to enrol in public school; however, a few children from minority (excluding ethnic Serb) communities did not attend PISG-run public school due to security concerns. Primary education is free. According to UNICEF, 97.5 percent of ethnic Albanian and 99 percent of ethnic Serbian children were enrolled in primary school, while only 77 percent of children between the ages of 7 and 14 from non-Serb minority communities (Roma, Ashkalia, Egyptian, Turkish, Bosniak, Gorani, and others) were in school. The UN Children's Fund (UNICEF) reported that less than 52 percent of the children who completed primary education continued to secondary school; 43 percent of these were female. There were lower rates of secondary school attendance and completion for ethnic Albanian girls than for ethnic Albanian boys or ethnic Serb girls. Some children were forced to leave school early to work (see section 6.d.).
Romani, Ashkali, and Egyptian children attended mixed schools with ethnic Albanian children but reportedly faced intimidation in some majority Albanian areas. Romani children tended to be disadvantaged by poverty, leading many to start work both at home and in the streets at an early age to contribute to family income. Some Bosniak children in predominantly Bosniak areas were occasionally able to obtain primary education in their language, but those few outside such areas received instruction in the majority Albanian language.”
36. On official and societal discrimination and living conditions, it says this (pages 37-38):
“Official and societal discrimination with respect to employment, social services, language use, freedom of movement, the right to return, and other basic rights and harassment of members of minorities improved over the previous year, although discrimination persisted, particularly against ethnic Serbs and Roma, Ashkali, and Egyptians. Violence and crimes against property directed at minorities lessened, but remained a problem.
….
During the year police and KFOR commenced large-scale operations to apprehend persons responsible for the March 2004 interethnic riots that resulted in the deaths of 8 ethnic Serbs and 12 ethnic Albanians, injury of more than 900 persons, severe damage or destruction of more than 900 ethnic Serb, Romani, and Ashkali houses and 30 Orthodox churches or monasteries. In its July report on follow-up actions after the riots, UNMIK stated that 348 individuals had been brought before the courts for riot-related offences. Of these, 179 cases were completed, 71 were awaiting trial, and 98 were under investigation. At least 57 serious cases were prosecuted by international lawyers and resulted in sentences of up to 16 years in prison. Kosovo judges handed down more than 85 convictions, with punishment ranging from court reprimands and fines up to $240 (200 euros) to imprisonment for periods ranging from two months to two years. On May 19, an international panel of judges of the Gjilan/ Gnjilane district court convicted six ethnic Albanians in connection with the killing of two ethnic Serbs during the riots and sentenced them to prison terms ranging from 3.5 to 16 years.”
Human Rights Watch Report 2005
37. We next turn to the Human Rights Watch Report for 2005. In relation to the pre-March 2004 situation it states (page 6) that:
“Roma, Ashkali, and Egyptians (Roma who claim descent from ancient Egypt)—referred to collectively as RAE communities—also faced violence, intimidation, and forcible expulsion in the aftermath of the 1999 conflict. Some ethnic Albanians suspected that some RAE had collaborated with the Serb and Yugoslav forces during the 1999 conflict, and ethnic Albanians were not above the widespread anti-RAE sentiments that prevail in Europe, where RAE communities are derisively known as "Gypsies." In the immediate aftermath of the 1999 conflict, RAE homes were burned alongside Serb homes, and RAE communities also faced deadly attacks, kidnappings, and other forms of violence.”
Events of March 2004
38. Most of the report, however, focusses on the events of March 2004 and their aftermath. At page 4 it states:
“The March violence forced out the entire Serb population from dozens of locations—including the capital Pristina—and equally affected Roma and Ashkali communities. After two days of rioting, at least 550 homes and twenty-seven Orthodox churches and monasteries were burned, leaving approximately 4,100 Serbs, Roma, Ashkali, and other non-Albanian minorities displaced. Some 2,000 persons still remain displaced months later, living in crowded and unsanitary conditions—including in unheated and unfinished apartments, crowded schools, tent camps on KFOR military bases, and even metal trucking containers. The future of minorities in Kosovo has never looked bleaker.”
39. More detail is given at page 6:
“On March 17, 2004, violent rioting by ethnic Albanian crowds broke out in Kosovo, a day after ethnic Albanian news agencies in Kosovo reported sensational and ultimately inaccurate reports that three young children had drowned after being chased into the river by Serbs. [2] With lighting speed, the crowd violence spread all over Kosovo, with the Kosovo authorities counting thirty-three major riots involving an estimated 51,000 participants over the next two days. [3] Large ethnic Albanian crowds targeted Serb and other non-Albanian communities, burning at least 550 homes and twenty-seven Serbian Orthodox churches and monasteries, and leaving approximately 4,100 Serbs, Roma, Ashkali (Albanian-speaking Roma), and other non-Albanian minorities [4] displaced. [5] Nineteen people—eight Kosovo Serbs and eleven Kosovo Albanians—were killed, and over a thousand wounded—including more than 120 KFOR soldiers and UNMIK police officers, and fifty-eight Kosovo Police Service (KPS) officers.”
40. At page 15 it expresses the view that the March 2004 violence was organised by ethnic extremists:
“The March violence in Kosovo involved more than 50,000 rioters, and international officials quickly described the violence as organized by ethnic extremists. UNMIK spokesperson Derek Chappell described the acts of violence as having "a degree of organization behind them." On March 23, during a visit to the violence-affected city of Obilic, UNMIK head Harri Holkeri stated that Albanian extremists "had a ready-made plan" for the violence. [61] During his March 22 visit to Kosovo, NATO Secretary-General Jaap de Hoop Scheffer described the "unacceptable" violence as "orchestrated and organized by extremist factions in the Albanian community." [62] Visiting Kosovo just days after the March violence, the European Union’s foreign policy representative Javier Solana also described the violence as organized: "It may have been a moment of spontaneity, but ... a lot of people (were) organized to take advantage of that moment of spontaneity." [63] Admiral Gregory Johnson, the commander of NATO forces for Southern Europe, a command which includes the NATO-led KFOR troops in Kosovo, stated that there was a "modicum of organization" behind the violence and described the violence as "essentially amount[ing] to ethnic cleansing." [64] In his report to the U.N. Security Council, Secretary-General Kofi Annan stated that "the onslaught led by Kosovo Albanian extremists against the Serb, Roma and Ashkali communities of Kosovo was an organized, widespread, and targeted campaign." [65]”
41. As well as highlighting the widespread attacks by ethnic Albanians on Serbs, Roma, Ashkaeli, Albanian-speaking Roma and other non-Albanian minorities, the report at page 12 expressed “equal concern” about “ the near-collapse of the international security organizations in Kosovo when confronted by the violence and unrest of March 2004, and the inability of KFOR, UNMIK international police, and the local KPS to provide effective protection to Kosovo’s minority communities during the two days of violence”. It noted that “in nearby Vucitrn, located in between two main French KFOR camps, Albanian crowds burned sixty-nine Ashkaeli homes without a response from either French KFOR or international UNMIK police”.
42. The overall role of the KPS was dealt with as follows:
“In the absence of KFOR and UNMIK, the dire security situation was often left in the hands of the recently trained and under-equipped Kosovo Police Service (KPS), whose performance was mixed. Some KPS officers performed with great courage and professionalism during the crisis, working tirelessly to protect or evacuate Serbs from their homes and doubtlessly saving lives. Many other KPS officers stood by passively, refusing to take steps to protect ethnic Serbs and other minorities, or participate in their evacuation. In a number of cases, KPS officers showed a bias against minorities, arresting Serbs or Ashkalis who tried to defend their homes while ignoring the criminal actions of Albanian rioters. Some KPS officers took an active part in the violence, allegedly participating in the burning of homes in Vucitrn, Obilic, and Kosovo Polje”.
43. The KPS role was also touched on at page 21:
“Ethnic Serbs were not the only victims of the March violence. In many areas of Kosovo, Roma, Ashkali (Albanian-speaking Roma), and other non-Albanian minorities also faced violence. Among the most severe attacks was the burning of at least sixty-nine Ashkali homes together with a Serb Orthodox Church in Vucitrn. The town of Vucitrn is located south of Mitrovica. Even though Vucitrn is in close proximity to two major French KFOR bases—"Belvedere" and Novo Selo—KFOR or UNMIK did not take an active part in the defence of the Ashkali community in Vucitrn. The only security force that played a significant role during the violence in Vucitrn was the predominantly ethnic Albanian Kosovo Police Service (KPS). While some KPS officers assisted in the evacuation of Ashkali residents, it appears that other KPS officers played an active part in the violence, arresting and abusing Ashkalis who attempted to defend their homes. According to some Ashkaeli, some KPS officers participated in the burning of Ashkali homes. […]”
The Situation Post-March 2004
44. In evaluating the situation post-March 2004, the Human Rights Watch 2005 report (at pages 34-35) expressed concerns about the displacement it had caused and the conditions being experienced by the displaced persons affected:
“ More than 2,000 persons remained displaced at the time of Human Rights Watch’s April research mission, and were often living in miserable and overcrowded conditions. Many of the families burned out of their homes in Svinjare and Obilic were living in unheated, unfinished apartment buildings without access to water and electricity in Mitrovica and Zvecan. [181] Human Rights Watch also found displaced Serbs living in metal trucking containers in Gracanica and Ugljare. Hundreds of displaced persons are also housed in school buildings in Gracanica and Mitrovica, in crowded conditions that provide no privacy and inadequate sanitation. Displaced Serbs from Prizren are located at a gymnasium on the German KFOR base, displaced Serbs from Belo Polje are located at the Italian "Villagio Italio" KFOR base, while hundreds of displaced Ashkali from Vucitrn are living in a muddy and crowded tent camp inside the French KFOR base at Novo Selo. Several families are being housed in single tents. The historic monasteries of Gracanica and Decani are also housing displaced Serbs.
….
Many of the persons affected by the March violence had only recently returned to Kosovo, some with the assistance of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration. Fedaim Kelmendi abandoned his application for asylum in Belgium in January 2004, and returned to his home in Vucitrn after IOM assured him it was safe to return. IOM provided him with free plane tickets to Kosovo, and provided transportation to his home in Vucitrn. Njazi Pllavci, an Ashkali, returned to his home in Vucitrn in May 2003 with the assistance of UNHCR, because he was no longer able to support his family in Serbia. The Serbs of Belo Polje returned after receiving security guarantees from KFOR and UNMIK, as well as rebuilding assistance.”
UNHCR Position Paper, March 2005
45. That brings us to the UNHCR Position on the Continued international Protection Needs of Individuals from Kosovo (UNHCR, March 2005). This is the latest UNHCR report placed before us. Its contents represent a modification of the position expressed in the August 2004 report. At D paragraphs 13 and 15 it gives the following summary:

46. At paragraph 16, under the heading ‘Other Groups at Risk’, it stated:
‘In the current complex situation of Kosovo, others groups not detailed above may have a well-founded fear of being persecuted for Convention related reasons. Under these categories may thus fall Kosovo Albanians belonging to the majority population and members of all ethnic minority groups, including those that UNHCR has not mentioned under the above ‘ethnic minorities at risk’. Example for these categories may include but are not limited to the following:
Persons in ethnically mixed marriages and persons of mixed ethnicity
Persons perceived to have been associated with the Serbian regime after 1990; and
Victims of trafficking.’
European Roma Rights Centre (ERRC) Report, June 2005
47. Also before us was the European Roma Rights Centre (ERRC) Report, “In the Aftermath of Ethnic Cleansing: Continued Persecution of Roma, Ashkaelis, Egyptians and Others Perceived as “Gypsies” in Kosovo (Memorandum of the European Roma Rights Centre, presented to the European Parliament on 27/06/05)”. Its view is summarised at page 12 as follows:
“Six years ago, after the end of the NATO bombing of former Yugoslavia, Roma Ashkalis, Egyptians and others regarded as “Gypsies” (“RAE”) were violently cleansed from their homes in Kosovo by means of arson, mass destruction of houses, killings and rape. Today, persecution of the members of these communities continues, manifested in their systematic exclusion from access to fundamental human rights. Racial discrimination against RAE communities in Kosovo is pervasive, depriving tens of thousands from even a bare minimum of dignity. Anti-Gypsy sentiment among the majority is widespread, ranging from assaults on RAE individuals to verbal abuse and dissemination of defamatory images, including images stigmatising RAE as perpetrators of crimes against Albanians, in the media.”
48. The report later summarises what it describes as “some particularly extreme issues facing Roma, Ashkalis, Egyptians and others considered as “Gypsies” in Kosovo” as follows:
”Failure to Provide Just Remedy for Gross Violations of Fundamental Human Rights: RAE are denied the right to compensation for the violent crimes committed against them immediately after the end of the NATO bombing in June 1999 and the following years. In the course of the ethnic cleansing campaign, ethnic Albanians kidnapped and severely physically abused and in some cases killed Roma, Ashkalis and Egyptians; raped women in the presence of family members; and seized, looted or destroyed property en masse. Whole Romani settlements were burned to the ground by ethnic Albanians, in many cases while NATO troops looked on. In the following years numerous RAE returnees were targeted for violent assaults such as the brutal killing of four Ashkali returnees in Dashevc/Doševac in November 2000, the numerous explosions causing deaths and destruction of newly rebuilt houses for returnees. The perpetrators of these crimes have not been brought to justice to date. The ethnic cleansing of the RAE remains totally unremedied.
Continuing Violence, Intimidation, and Harassment: After several years during which UN officials and others assured the public that the worst violence in Kosovo was over; after Germany, Italy, Sweden and other states, considering Kosovo to be safe, terminated the international protection of many RAE and started their forceful repatriation to Kosovo, the renewal of mass violence against minorities in Kosovo in March 2004, demonstrated that forces in Kosovo intent on expelling non-Albanian minorities continue to control the course of events. Several hundreds of Roma and Ashkalis were targeted for violent attacks; at least 75 houses belonging to Romani and Ashkali families were set on fire. In Vushtrri/Vucitrn alone, some 70 houses belonging to Ashkalis were burned and destroyed.
Roma, Ashkalis, Egyptians and others considered as “Gypsies” in Kosovo today live in a state of pervasive fear, nourished by routine intimidation and verbal harassment, as well as by occasional racist assaults by Kosovo Albanians. Most of these incidents remain unreported to the authorities due to lack of trust and fear of retaliation, reinforced and affirmed by the awareness among RAE that there has been no justice delivered in connection with the massive wave of violent crimes committed against them, and indeed that the persons primarily responsible for these crimes are the new powers in Kosovo.
A Vacuum of Protection against Discrimination: Roma, Ashkalis, Egyptians and others considered as “Gypsies” in Kosovo are subjected to exclusion and marginalisation as a result of systematic racial discrimination. RAE remain the only communities which still live in camps for internally displaced in inhuman conditions; levels of unemployment and impoverishment among them are grossly disproportionate compared to the rest of the Kosovo population; housing conditions are markedly inferior; access to social and public services is seriously restricted. The impact of racial discrimination against RAE is particularly visible in the exercise of:
 The Right to Return in Safety and Dignity: Numerous Roma, Ashkalis and Egyptians remain in internal displacement throughout Kosovo and outside Kosovo unable to return due to fear for their security; due to failure of the authorities to rebuild their houses and ensure other necessary conditions for a dignified return; due to failure of the authorities to ensure that the legal owners of houses can reclaim their property which had been illegally occupied. Most poignantly, the failure of authorities in Kosovo to ensure access to fundamental rights of RAE has been demonstrated by the continuing exposure in the last six years of some 700 RAE individuals in the IDP camps in Northern Mitrovica and Zveçan to lead poisoning.
 The Right to Work: Discrimination against Roma, Ashkalis and Egyptians in employment is massive: With the privatisation of the Kosovo enterprises, hundreds of RAE are excluded from jobs; other opportunities for access to income sources are also largely unavailable to them; RAE involvement in the civil service is token. Discrimination in employment condemns large numbers of RAE to degrading poverty. Severe impoverishment of RAE families is also a major obstacle for access to education and health care.
 The Right to Adequate Housing: For numerous families housing is extremely substandard in marked contrast to housing conditions of any other ethnicities currently in Kosovo. In a number of RAE neighbourhoods, located on the margins of towns, individuals are exposed to serious health risks due to lack of basic facilities and their access to employment, education and public services is severely restricted.
The conditions described above deter tens of thousands of individuals from returning to their homeland. Out of a community of about 150,000 individuals before 1999, the estimated number of RAE in Kosovo today is 30,000-35,000. In addition to the hundreds of thousands of individuals who fled persecution in 1999-2000, several dozens of Ashkali families left Kosovo after the March 2004 pogroms. A number of voluntary and forced returnees with whom the ERRC recently spoke were preparing to leave the province. Many of these individuals are threatened to become victims of human trafficking and other gross human rights violations. Forced returnees in 2003 and 2004 have left Kosovo in a matter of months after their forced repatriation. For many RAE, the only reason to remain in Kosovo is reportedly lack of money to arrange their leaving the province. The underlying cause of these issues is the persecution of Roma, Ashkalis, Egyptians and others regarded as “Gypsies” in Kosovo, a persecution undertaken under the auspices of international administration in Kosovo.”
49. At page 8 the report describes the state of mind of RAE in Kosovo:
“A sense that they live in a state of danger and precariousness remains very high among RAE in Kosovo. Many RAE told the ERRC that it was hard to believe that ethnic violence would not erupt again, particularly after the experiences of March 2004. In the event of such violence, RAE told the ERRC that they did not believe they would be effectively protected. The largest non-Serbian community which was subjected to a violent arson attack in March 2004 – some 70 Ashkali families from Vushtrri/Vučitrn – is now outside Kosovo or in internal displacement inside and outside Kosovo. According to Hamid Zymeri, one of the few individuals who returned to Vushtrri/ Vučitrn in April 2005, after the burned houses were rebuilt, only six Ashkali families returned. Over 50 newly built houses are reportedly currently empty. Mr Zymeri himself described his life in Vushtrri/ Vučitrn after the pogroms as “home-prison”.
50. Pages 10-11 of the report evaluate the recent history of forced returns and make recommendations:
“Forced returns of RAE in the past several years, especially from countries such as Germany, Sweden, and Italy have never ceased. Most recently, on April 26, 2005, the German state and the UNMIK made the so called “Agreed Note” according to which between 300-500 Ashkalis and Egyptians will be forcefully returned per month from Germany to Kosovo by the end of 2005. Regarding Romani communities, the Note says: “In view of expected improvements of the situation of Roma in Kosovo, UNMIK agrees to the possibility of allowing the return of criminal offenders of the Roma community who have been sentenced to imprisonment for at east 2 years or to several prison sentences amounting to a total of at least 2 years and who are not in need of protection.”
….

In view of the present human rights situation of the RAE communities in Kosovo, the ERRC urges the representatives of the international community and the Provisional Institutions of the Kosovo government to act within the powers available to them to ensure that:
 Prompt and impartial investigations into all acts of violence to which Romani, Ashkali and Egyptian individuals and other persons regarded as “Gypsies” in Kosovo have been subjected are carried out; all perpetrators of racially-motivated acts of ethnic cleansing are brought swiftly to justice and victims or families of victims receive adequate compensation; justice is done and seen to be done;

 Individuals guilty of the persecution of Roma, Ashkalis, Egyptians and other persons regarded as “Gypsies” in Kosovo are swiftly brought to justice via the International Criminal Tribunal for the Former Yugoslavia, or through other mechanisms;

 Sustained efforts are undertaken by all authorities in Kosovo and involved in the administration of Kosovo to ensure that no discussions of Kosovo’s final status are embarked upon until such a time as all stakeholders achieve durable and lasting consensus in practice that Kosovo is a multi-cultural society in which all individuals can freely exercise in practice all of their fundamental human rights;
 Any forced returns of Kosovo Romani, Ashkali or Egyptian individuals to Kosovo, or to the rest of Serbia and Montenegro are rendered impossible and impermissible until such a time as authorities in Kosovo are able to demonstrate durable and lasting security and freedom from racial discrimination for all in all parts of the province. “
Our Assessment

51. In view of the fact that the latest UNHCR report differentiates in places between the position faced by Roma on the one hand and (within the category of RAE) Ashkaelia on the other, we have decided that we should confine our assessment to the position of Ashkaelia and those of mixed Ashkaelian ethnicity. In this connection we should mention that we have seen a copy of a recent draft decision by a different senior panel dealing with Roma and persons in ethnically mixed Roma marriages. In our view, the issue of persons of mixed ethnicity on the one hand and persons of ethnically mixed marriages are distinct and it not our intention here to deal with the latter. We deal only with Ashkaelia and persons of mixed Ashkaelian ethnicity.

52. In assessing the background evidence, we should note that we have taken a similar approach to UNHCR reports as have previous panels. That is to say, we consider that we should attach very considerable weight to them, particularly bearing in mind the fact that these reports draw on the experiences of UNHCR officers working on the ground in Kosovo. Equally, however, we consider it important to repeat the same reservations as were stated in para 54 of FD regarding the UNHCR’s own formulation of risk categories. It continues to be the case that UNHCR reports and position papers on Kosovo frame risk categories according to a category of “(international) protection” which is broader in scope than arises under either the Refugee Convention or the European Convention on Human Rights. We would accept that, in certain sentences, the advice does clearly indicate when, by “international protection” if it means Refugee Convention protection and Article 3 ECHR (or Article 3 Convention Against Torture (CAT)) protection (see e.g. paragraph 14), but these co-exist with sentences which refer vaguely to “complementary forms of protection depending on the circumstances of claims”.

53. As regards the June 2005 report of the European Roma Rights Centre (ERRC) however, we considered we could only attach limited weight to it. There are a number of reasons for this. It is written in the style of a partisan organisation which has a settled agenda. In places, it unhelpfully makes no distinction between the situation these minorities faced under Milosevic and the situation they have faced since. It describes incidents of human rights abuses as “generalised persecution”, without any concern for considerations regarding the scale and frequency of such incidents: virtually everything that has befallen the Roma and the Ashkaelia is described in terms of “generalised or systematic” persecution. In a number of places it makes generalised assertions, without giving the reader any idea of their empirical basis. In assessing the role of the international administration in Kosovo, which it regards as having condoned persecution of Roma and Ashkaelia, it gives no indication whatsoever that it has attempted to take account of this administration’s protection successes, as well as protection failures, which have occurred. Whilst we take the report into account nevertheless as providing a perspective from a leading human rights organisation active on behalf of Roma and Ashkaelia, we prefer the more careful and evidence-based approach of the other reports, the latest UNHCR report in particular.

54. So far as the events of March 2004 and their aftermath are concerned, we note that the UN Secretary-General, Kofi Annan, has described the violence concerned as organised by extremist Albanian groups seeking to exploit the situation, (see e.g. page 15 of the US State Department report covering 2004) and that is a factor which was not immediately evident at the time of these events. The same report, at page 12, tells us that Kofi Annan’s report also considered that the initial reaction of international security organisations when confronted by the violence and unrest in March 2004 was inadequate and neither the French KFOR nor the international UNMIK police were able to provide effective protection to the Ashkaelian community in Vucitrn. However, we do not think that these initial failings were perpetuated; rather, the same US State Department report along with other major reports indicates that in the ensuing period the international authorities in Kosovo were able to respond to the situation and take sufficient steps to afford protection to those groups adversely affected by these events (we note, for example, that the US State Department report covering 2004 records at pages 37-8 that in its July report on follow-up actions UNMIK said that 348 individuals had been brought before the courts for riot-related offences.). In this regard we find that the preponderance of the latest evidence continues to support the analysis given by the Tribunal in FD (paragraph 65) and SK (paragraph 16(f)).

55. However, whatever may be the position of Roma and those of mixed Roma ethnicity, we note that the UNHCR report of March 2005 considers that, whilst there continues to be security concerns for certain ethnic minorities, the Ashkaelia are less likely to face difficulties than Kosovo Serbs, Roma and Albanians in a minority situation. This report does not identify Ashkaelia as a general risk category. All it does is indicate that some Ashkaeli may face targeting on an individual basis. (The precise wording given in part D of the report’s summary is that: “In addition, Ashkaelia and Egyptians as well as Bosniak and Goranis may be targeted, even if on a more individual basis”). Also of particular note is what is said at para 15:

56. Whilst this report goes on to reconfirm its view that ‘Other Persons at Risk’ includes ‘[p]ersons in ethnically mixed marriages and persons of mixed ethnicity’, it confines itself to stating that such persons “may have a well-founded fear of being persecuted for Convention related reasons”.

57. Before leaving the evidence from the UNHCR, we would note that since the hearing we have had brought to our attention the publication of a more recent UNHCR report, “UNHCR’s Position on the Continued Protection Need of Individuals from Kosovo (June 2006). We considered whether to invite submissions from the parties concerning its relevance, but decided it was unnecessary, since it contains nothing to suggest that the UNHCR is now taking a different view concerning the position of Ashkaelia generally. Indeed, if anything, its text is now more emphatic that members of the Ashkaeli community do not in general have protection needs. At paragraph 3 it is stated that:

‘Positive developments within the inter-ethnic environment have had a particular impact on members of the Ashkaelia and Egyptian communities in Kosovo.’

58. At paragraph 25 it is stated that:

‘... UNHCR, in consideration of positive security developments which have taken place in the past year in Kosovo no longer consider that the Ashkaelia and Egyptian minorities in general, are in need of international protection. Therefore asylum claims originating from among those ethnic communities should be assessed individually based on Art. 1A(2) of the 1951 Convention and the 1967 Protocol.’

UNHCR goes on to say that its only continuing concerns in relation to Ashkaelia and Egyptians relate to the manner of returns (the need for phasing). This is not a matter relevant to our assessment of risk.

59. In our view the evidence before us at the hearing overwhelmingly demonstrates that one factor significantly reducing the level of difficulties facing Ashkaelia is that they generally have an ability to speak fluent Albanian: see e.g. the latest CIPU report at K.6.93. We also find particularly striking the emphasis laid in the major reports on the fact that, although Ashkaelia in certain areas face difficulties, the situation varies considerably from area to area: see e.g. the latest CIPU report at K.6.92-93. That is an indication, in our view, that agencies on the ground in Kosovo are taking and will in future take steps to ensure that Ashkaelian returnees are steered away from any particularly difficult areas. We are satisfied, therefore, that in general there is currently no real risk of serious harm for returning Ashkaelia and that, except in unusual individual circumstances, were any individual Ashkaelia to face a real risk of serious harm (exceptionally), he or she would normally be able to access adequate protection from the authorities in Kosovo.

60. So far as living conditions are concerned, it is clear that the situation facing Ashkaelia is far from ideal and that there remains discrimination of various kind as well as harassment and occasional violence. However, we think that the comments made at paragraph 53 of FD as regards Roma generally:

“The evidence shows that the general conditions of life for many Roma involve routine and quite severe discrimination in accessing public services, poverty, a high degree of dependancy on humanitarian aid and fears for their future and security. We do not consider that the conditions as evidenced by the various reports, however, show that there is a real risk that the claimant's Article 3 rights will be infringed if he is returned. There is humanitarian aid; some are able to access public services; not all are subject to the same degree of discrimination. The position in enclaves or camps is likely to afford scope for greater collective opportunities for protection and the provision of services.”

continue to represent a fair evaluation of the likely conditions in which any returning Ashkaelia would have to live. Certainly none of the major reports indicate that conditions for Ashkaelians generally are so dire as to violate basic non-derogable human rights.

61. So far as persons of mixed Ashkaelian ethnicity are concerned, we acknowledge that there is a dearth of specific information. However, we have not seen anything to suggest that the Ashkaelian communities would reject persons who had an Ashkaelian parent, particularly when the person concerned is someone whose mode of behaviour is perceived generally as being Ashkaelian.

62. We would add that the appellant in this case has argued that his mode of behaviour would mark him out to other Kosovan Albanians as someone of Ashkaelian ethnicity. He has not, however, submitted that he would be at risk of being rejected by Ashkaelians by virtue of having one parent who was Albanian. We reiterate the point that in general the Ashkaelia are Albanian-speaking in any event. This constitutes a further reason, specific to the appellant's case, for dismissing the appeal.

63. For the above reasons:

The Adjudicator materially erred in law.

The decision we substitute for that of the Adjudicator is to dismiss the appellant’s appeal on all grounds, including the asylum and human rights grounds of appeal.

Signed Date

Dr H H Storey
Senior Immigration Judge

APPENDIX A

BACKGROUND MATERIALS REFERRED TO

DATE

May 2003
UK Home Office Immigration & Nationality Directorate – Operational guidance notes on Kosovo
13.2.03
Psychiatric report on the appellant prepared by Dr J Hajioff
01.01.04
Human Rights Watch – Overview of human rights developments 2003 ‘Serbia and Montenegro’
30.03.04
UNHCR – Position on international protection needs of individuals from Kosovo in the light of recent inter-ethnic confrontations
31.03.04
European Roma Rights Centre (ERRC) – Ethnic cleansing of ‘gypsies’ in Kosovo
26.05.04
Amnesty International report 2004 – Serbia & Montenegro
June 2004
UNHCR – Update on the Kosovo Roma, Ashkaelia, Egyptian, Serb, Bosniak, Gorani and Albanian communities in a minority situation
13.07.04
FIDH – Serbia Montenegro – The failures of the transition
20.07.2004
UNHCR – Human rights committee considers report of Serbia & Montenegro
06.08.04
Amnesty International - Fear of safety/forcible displacement
August 2004
UNHCR – The possibility of applying the internal flight or relocation alternative within Serbia & Montenegro to certain persons originating from Kosovo and belonging to certain ethnic minorities there.
August 2004
UNHCR – Position on the continued international protection needs of individuals from Kosovo
August
UNHCR – Kosovo minorities still need international protection
06.12.04
Medical report from Dr Jane Obasi MBChB DCH
10.01.05
UNMIK – Availability of adequate medical treatment for post-traumatic stress disorder in Kosovo
17.03.05
Amnesty International - The March violence – one year on
31.03.05
UNHCR – Position on the continued international protection needs of individual needs from Kosovo
09.06.2005
Refugees International – Kosovo 2005: Ashkaelia family with lead poisoning
15.6.2005
Refugees International – Kosovo : Lead pollution requires immediate evacuation of Roma camps
27.6.2005
Refugees International – Kosovo: Roma returns stalled by security concerns, politics and discrimination
28.06.05
European Roma Rights Centre – In the aftermath of ethnic cleansing continued persecution of Roma, Ashkaelis Egyptians and other perceived as ‘gypsies’ in Kosovo

European Roma Rights Centre – Everyone fiddles while the Roma burn
18.9.2005
Refugees International – The Roma: The Balkans’ most vulnerable
23.9.2005
Refuges International – Kosovo : Roma returns stalled by security concerns, politics and discrimination
02.02.06
European Roma Rights Centre – Representative of the UN Secretary General for the Human Rights of internally displaced persons expresses concern over Romani IDPs and victims of lead poisoning
02.02.06
European Roma Rights Centre – Roma rights in Kosovo: Joint statement to the Organisation for Security and Cooperation in Europe
02.02.06
European Rights Centre – Police violence
03.04.06
European Roma Rights Centre – European Court of Human Rights has no jurisdiction in Kosovo lead poisoning cases
03.08.06
US Department of State – Country report on human rights practices