[2003] UKIAT 156
- Case title: A (Macedonian ethnic group, Persecution)
- Appellant name: A
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Serbia and Montenegro
- Judges: Ms D K Gill, Mr A Smith
- Keywords Macedonian ethnic group, Persecution
The decision
IN THE IMMIGRATION APPEAL TRIBUNAL
Heard at:
Field House
_A (Macedonian Ethnic Group - Persecution) Serbia and Montenegro [2003] UKIAT 00156
Heard on:
12th November 2003
Date typed:
13th November 2003
Date promulgated:
21 November 2003-
Before:
MS D K GILL (CHAIRMAN)
............... (Vice President)
MR. A SMITH
Between:
The Secretary of State for the Home Department
Appellant
And
Respondent
DETERMINATION AND REASONS
Representation:
For the Secretary of State: Ms. J. Beach, Senior Home Office Presenting Officer.
For the Respondent: Ms. E. Shaw, of Turpin Miller & Higgin Solicitors.
1.1 The Secretary of State Appellant has appealed, with leave, against the determination of Mr. M B Hussain, an Adjudicator, who (following a hearing on 5th November 2002 at Hatton Cross) dismissed his appeal on asylum and human rights grounds allowed the appeal of Mr. Stojkov (who we shall hereinafter refer to as the Claimant) under Section 69(5) and under Section 65 of the Immigration and Asylum Appeals Act 1999 (the 1999 Act) against the Secretary of State’sRespondent’s decision of 14th November 2001 to refuse leave to enter give directions for his removal from the United Kingdom and to refuse his asylum and human rights claims.
1.2 This Determination is being reported because we assess whether the Claimant, who is from Kosovo and who is of Macedonian ethnic origin, would be at real risk of persecution or treatment in breach of Article 3 in his home area of northern Mitrovica and whether he would be able to travel to his home area safely from Pristina, which is where he would be returned to. Further details of the background to the Claimant's claim are provided below.
2.1 The Claimant is a national of Serbia and Montenegro, from Kosovo. The removal directions are for Kosovo.
2.2 The Claimant is of mixed ethnicity – his (late) father was a Macedonian and his mother is a Bosniak Muslim. The Claimant regards himself as a Macedonian. He practises the Orthodox Christian faith. He was born and raised in Pristina. In 1998, his father was killed, driving over a landmine. The Claimant and his mother then went to live in north west Mitrovica.
2.3 At paragraph 12 of the Determination, the Adjudicator stated that the Claimant’s claim – as set out by him in his interview - was that he feared the KLA who had tried to forcibly recruit him; the Claimant believed this was a ploy in order to get rid of him. However, the Adjudicator considered that the Claimant was no longer basing his claim on his difficulties with the KLA and that the basis of the Claimant's claim now, as he understood it, is that he feared persecution at the hands of the majority Albanian population as an ethnic Macedonian.
2.4 The Adjudicator noted that the Secretary of State had not disputed the Claimant's ethnic origin or his membership of the Orthodox Christian faith or his claim that he is not able to speak Albanian (paragraph 13 of the Determination).
2.5 The Adjudicator made the following findings:
(a) that the Claimant and his family relocated to Mitrovica in 1988/89 (paragraph 12 of the Determination). This timing must be an error on the Adjudicator’s part, because 1998/99 is referred to at paragraph 7 of the Determination which is consistent with the Claimant's statement dated 30th October 2002. However, nothing turns on this error.
(b) that the Claimant’s position must be regarded as analogous to either ethnic Serbs or other minority groups closely tied with the Serbs by the common heritage of language and culture (paragraph 14 of the Determination) and that his father worked for the Serbs (paragraph 22 of the Determination).
(c) that the Claimant has a well-founded fear of persecution on account of his ethnic origin (paragraph 22 of the Determination);
(d) that it was unduly harsh for the Claimant to relocate to Mitrovica, “where apart from questions of his physical safety, there remains serious doubts as to whether he would have to live in such isolation as to deprive him of the basic necessities of life” (paragraph 25 of the Determination).
3. Permission to appeal was granted generally by reference to the grounds of application. At the hearing before us, Ms. Beach withdrew the third ground, because she could not explain to us what it meant. Accordingly, the grounds which remained were:
(a) that the Adjudicator had failed to consider whether there was effective protection in Kosovo.
(b) that the Adjudicator had failed to distinguish between intimidation, harassment and persecution.
4. We asked the parties at the hearing whether the Claimant’s home area in Kosovo should be regarded as Mitrovica, given the Adjudicator's finding that the Claimant had relocated to Mitrovica in 1998. Both parties agreed that the Claimant's home area is Mitrovica. In fact, we need to be more specific, since there are two distinct areas of Mitrovica – the area to the north of the River Ibar in Mitrovica town, where the Serbs are in the majority and where the Claimant used to live prior to his departure from Kosovo and the area south of the River Ibar in Mitrovica where the Albanians are in the majority.
5.1 For the Secretary of State, Ms. Beach submitted that the Adjudicator was wrong to find that the Claimant’s position must be regarded as analogous to Serbs or other minority groups in Kosovo. She submitted that the Claimant’s own evidence (paragraph 12 at page 3 of the Claimant’s bundle) is that he was not part of the Serb community. The Claimant had initially based his claim on the fact that the KLA has asked him to join them. In Ms. Beach’s submission, he would not have been asked to join the KLA if he was regarded by the KLA as a Serb. Accordingly, Ms. Beach submitted that the KLA saw the Claimant as one of them, and not as a Serb. Paragraph K.6.9 of the CIPU Country Assessment Report dated October 2003 states that most ethnic Albanians are not strongly identified with their religion and that their animosity towards Serbs is essentially on the basis of ethnicity, with the difference in religion being a coincidental factor. Whilst the Claimant may share the same religion as the Serbs in Kosovo, he does not share their ethnicity.
5.2 Ms. Beach submitted that there was no objective evidence to show that ethnic Macedonians may be ill-treated in Kosovo; there is no reference to ethnic Macedonians in the CIPU report.
5.3 Ms. Beach then took us through various parts of the CIPU report, which she submitted shows that the Claimant would not receive treatment amounting to persecution if he is returned to Kosovo (paragraphs K.6.31 to K.6.36 of the CIPU report). Furthermore, he would be able to receive adequate protection (paragraphs K.6.38 to K.6.41 of the CIPU report).
6.1 For the Claimant, Ms. Shaw submitted that the Claimant's first language is Serbian. We pointed out at this stage that the Claimant had been interviewed in the Macedonian language and that he had given oral evidence in the Macedonian language. Upon taking instructions from the Claimant, Ms. Shaw informed us that her instructions were that the Macedonian language is not the same as Serbo-Croat but is very similar to it. The Claimant also shares the same religion as Serbs in Kosovo. Whilst paragraph K.6.9 of the CIPU report states that religion is seen by ethnic Albanians as a coincidental factor, the second part of the same paragraph refers to the destruction of over 100 Serbian Orthodox churches.
6.2 Ms. Shaw submitted that the Adjudicator had carefully considered the objective evidence, as paragraphs 15 to 23 of the Determination shows. In Ms. Shaw’s submission, the Determination of the Adjudicator was unusual in that the Adjudicator had set out parts of the relevant objective evidence in considerable detail. Accordingly, in Ms. Shaw’s submission, the first ground of appeal could not stand.
6.3 With regard to the second ground of appeal, Ms. Shaw submitted that the particular incident mentioned in paragraph 23 which is referred to in paragraph 2 of the grounds of application is only one incident in Mitrovica. The Ninth Assessment of the OSCE report was only one of the documents the Adjudicator had had before him. Accordingly, Ms. Shaw submitted that the second ground of appeal could not stand.
6.4 In the event that we were not with her, Ms. Shaw submitted that the objective evidence before us shows that there is a real risk of treatment amounting to persecution for ethnic minorities in Kosovo and those considered Serbs. The Claimant would therefore be at real risk of treatment sufficiently severe as to amount to persecution.
6.5 The OSCE Tenth Assessment Report shows that there would be insufficient protection for the Claimant (for example, pages 93, 98, 99, 108, 112 and 113 of the Claimant's bundle refer). The Amnesty International Report (for example, at pages 115, 119, 120, 121 122, 123, 128, 131 and 138 of the Claimant’s bundle) also shows that the Claimant would be at real risk of treatment amounting to persecution and that there would be insufficient protection.
7. Ms. Beach did not wish to respond and relied on her earlier submissions.
8. We reserved our Determination.
9. We have decided to allow the Secretary of State’s appeal. We are satisfied that the Adjudicator's finding that the Claimant is at risk of treatment which is sufficiently severe as to amount to serious harm (by which term we refer to treatment amounting to persecution or in breach of Article 3) is plainly wrong, is not sustainable and cannot be allowed to stand. In reaching this conclusion, we have followed the guidance of the Court of Appeal in Oleed [2002] UKIAT EWCA Civ 1906. We now give our reasons for reaching our conclusion.
10.1 The objective evidence shows that the location of the home area is important, because the security concerns vary from area to area. The Claimant's home area was found by the Adjudicator to be Mitrovica. This follows from the Adjudicator's finding that the Claimant and his family had relocated to Mitrovica in 1998/99. We were careful at the hearing before us to confirm with both parties that the Claimant's appeal should be determined on the basis that his home area is Mitrovica. Both parties agreed that this is the case. As we have stated in paragraph 4 above, it is necessary to be more specific because the objective material shows that there is a Serb-dominated part of Mitrovica and an Albanian-dominated part of Mitrovica. Prior to his departure from Kosovo, the Claimant lived in the Serb-dominated part of Mitrovica. At paragraph 4 of his statement dated 30th October 2002, he refers to north west Mitrovica. At paragraph 11 of his statement, he refers to northern Mitrovica.
10.2 With regard to Ms. Beach’s submission that there is no objective evidence which shows that Macedonians are persecuted in Kosovo, we note that Ms. Shaw did not dispute that this was the case. Indeed, it was acknowledged by both parties before the Adjudicator. However, it is a fact that Kosovo has seen hostility along ethnic lines. In saying this, we make it clear that we are but making only a general observation of the situation in general since the ethnic cleansing of the Albanians from Kosovo. It would therefore be dangerous to assume that, simply because there is no mention in the objective material of a particular ethnic group in Kosovo, this means that members of that ethnic group are not at real risk of serious harm. It may simply be that the reason why there is no mention of the situation of ethnic Macedonians in Kosovo is simply because their numbers have been or are very small.
10.3 As we state below, the objective material as a whole shows that persons who are ethnically in the minority in any particular area have security concerns. The Secretary of State has not disputed the Claimant’s nationality, nor his ethnic origin as a Macedonian. Given that there is no reference in the objective material to the situation of Macedonians in Kosovo and given that the absence of any such reference may mean that the total number of Macedonians in Kosovo is very small, this leads to the conclusion that the Claimant will be in a minority situation in his home area in northern Mitrovica, where (as shown by the objective evidence) Serbs are in the majority.
10.4 The Claimant’s accounts of his experiences in Kosovo do not suggest that he was at real risk of serious harm at the hands of the Serbs. For example, at paragraphs 11 and 12 of his statement dated 30th October 2002, he acknowledged that there are mainly Serbs living in northern Mitrovica but states that it is not possible for him to survive there. He then states that Albanians did go into northern Mitrovica with guns and he faced their threats. He then said that he was not really part of the Serb community and that he experienced some provocation from the Serbs but it was not life threatening as the danger he experienced from the Albanians. It is clear that his asylum and human rights claims have been put on the basis of his fear of serious harm at the hands of Albanians. It has not been put on the basis of his fear of serious harm at the hands of the Serbs on account of being a Macedonian. He shares the same religion as Serbs. His own account (see paragraph 10.7 below) is that his language is very similar to that of Serbo-Croat, which he says is the language of the Serbs. Of course, strictly speaking, the instructions which the Claimant gave to Ms. Shaw on this point at the hearing before us cannot be regarded as “evidence”.
10.5 The Claimant's mother is a Bosniak Muslim. At paragraph 12 of his statement dated 30th October 2003, he said that the Serbs really hate the Muslims. However, at paragraph 13 of the same statement, he said that he has not had any news of his mother since his arrival in the United Kingdom. Accordingly, his account is that he has lost contact with his mother; this would reduce further the likelihood of any difficulties from the Serbs. In any event, his own account of his difficulties from the Serbs when he was living with his mother is that he had “some provocation” from them. He has not mentioned anything which shows that he experienced treatment amounting to serious harm at the hands of the Serbs, on account of his mother’s religion.
10.6 Accordingly, we are satisfied that, on the Claimant's own accounts, he would not be at real risk of treatment sufficiently severe as to amount to serious harm on account of his Macedonian ethnicity at the hands of the Serbs if he were to return to Kosovo and live in northern Mitrovica, where the Serbs are in the majority. Accordingly, for all of these reasons, we consider that this appeal falls to be determined on the basis of the Claimant's fear of persecution at the hands of members of the Albanian ethnic group.
10.7 In deciding whether there is a risk of serious harm at the hands of Albanians, we have decided to proceed on the basis of the Adjudicator's finding that the Claimant’s situation ought to be regarded as analogous to that of either ethnic Serbs or other minority groups closely tied with the Serbs, for the following reasons:
(a) The Adjudicator's finding in this respect was not challenged by the Secretary of State in the grounds of application and permission to appeal was not granted in this respect.
(b) The Claimant has not sought to challenge this finding either. Indeed, at the hearing before us, as stated above, his case was put on the basis that he would be regarded as a Serb or as associated with the Serbs.
Having said that we proceed on this basis, we note in passing that the information we were given at the hearing (by Ms. Shaw on instructions from the Claimant) that the Macedonian language is very similar to Serbo-Croat although the two languages are not the same appears to be at odds with the objective evidence. The CIPU report for Serbia and Montenegro dated October 2003 refers to the Serbian language as being formerly known as Serbo-Croat and states that it is usually written in Cyrillic script (paragraph 1.2.2). On the other hand, the CIPU report for Macedonia dated April 2003 refers to the official language for Macedonia being the Macedonian language. There is no reference to this being written in Cyrillic script. We recognise that we have referred to a document which has not been submitted in evidence. We acknowledge that we have not alerted the parties at the hearing before us that we might refer to it. This is because this matter did not come to our minds until after the hearing. However, it does not affect the outcome of the appeal, because we have decided to determine the appeal on the basis of the Adjudicator's finding that the Claimant’s position is to be regarded as analogous to either ethnic Serbs or other minority groups closely tied with the Serbs.
In reaching this finding, the Adjudicator took into account the fact that the Claimant shares the same religion as Serbs and that he does not speak Albanian. The Adjudicator also appears to have considered that the Claimant shares the same culture as Serbs. We bear these factors in mind in deciding the risk on return at the hands of the Albanians in Kosovo. We are also prepared to determine this appeal on the basis that, on account of the language he speaks, he is reasonably likely to be perceived by Albanians as being either a Serb or so closely associated with Serbs that they (the Albanians) are reasonably likely to treat him in the same way as they would treat Serbs.
10.8 We agree with Ms. Shaw that the Adjudicator set out parts of the objective evidence in his Determination in some considerable detail. However, when assessing the risk of serious harm, he failed to take into account his findings that the Claimant had moved to (northern) Mitrovica in 1998/99 and that the Claimant's position should be regarded as analogous to that of either ethnic Serbs or other minority groups closely tied with the Serbs.
10.9 Furthermore, in considering the extracts of the UNHCR’s Position Paper dated April 2002, the Adjudicator failed to consider them within the context of paragraph 9 of the same report (page 6 of the Claimant’s bundle). This paragraph is the first paragraph of Section II, entitled “Minorities”. This states:
The term “minority” is used to describe groups of persons who are in a numerical minority situation in a particular location, regardless of their status elsewhere in Kosovo or in the Federal Republic of Yugoslavia (FRY).
10.10 It is with this in mind that the remaining parts of the UNHCR’s Position paper which the Adjudicator quoted should be read – for example, paragraph 14 of the report (on the same page of the Claimant's bundle) which states:
UNHCR stresses that minority return should take place on a strictly voluntary basis and based on fully informed decisions of the members of this community……….. Minorities should not be forced, compelled or induced to return to Kosovo.
10.11 The overall inference the Adjudicator drew from the documents which were before him (including the UNHCR Position paper) is that any group which might be seen as a minority group in relation to Kosovo as a whole is at real risk of serious harm. That, in fact, is not what the UNHCR Position Paper states. We are of the opinion that the UNHCR Position Paper makes it clear that the situation facing each ethnic community varies according to the location and whether, in any particular location, the ethnic group is a minority. The OSCE Report (Ninth Assessment, which was before the Adjudicator) is along similar lines.
10.12 As we have stated above, the Claimant's home area was found by the Adjudicator to be north Mitrovica. Besides the fact that the Adjudicator erred in considering the internal flight option at paragraph 25, the fact is that, in north Mitrovica, the Claimant would be in an area where Serbs are in the majority. At paragraph 23 of the Determination, the Adjudicator quoted from paragraph 3 of the OSCE Report (Ninth Assessment). Some of the text he quotes has been left out. The full text of this paragraph is to be found at page 19 of the Claimant's bundle. The missing text refers to violence perpetrated by Serbs in April 2002. The Claimant is someone whose situation (in so far as any risk from the Albanians is concerned) has been found to be analogous to either ethnic Serbs or other minority groups closely tied with the Serbs. The part of this paragraph which the Adjudicator does quote at paragraph 23 of the Determination states:
….. periodic upsurges of political unrest and occasional violence in north Mitrovica continued to have a negative effect on ethnic minorities in the Serb-dominated north, particularly those few non-Serbs remaining in isolation in northern urban Mitrovica towns………………. The few remaining ethnic Albanians (who are in a minority in this Serb-majority area) continued to be housebound and were subject to threats periodically by members of the majority Serb population, while other non-Serbs (such as some Bosniak families) also faced an increase in intimidation …. (Our emphasis)
10.13 We draw attention to two matters – firstly, the fact that this paragraph also confirms that Serbs are in the majority in the area the Claimant comes from (north Mitrovica) and, secondly, that the reference to ethnic minorities is a reference to those who are in a minority position in north-Mitrovica. The Claimant’s claim is based on his fear of serious harm at the hands of the Albanians. Albanians are in a minority in northern Mitrovica. The passage we have just quoted refers to problems experienced by Albanians and non-Serbs in Northern Mitrovica, and not problems caused by Albanians. If the Adjudicator had properly applied his finding that the Claimant's position is analogous to Serbs or other minority groups who are closely tied to Serbs, we do not see how he could have found that the Claimant would be at real risk of serious harm in north Mitrovica at the hands of Albanians.
10.14 In any event, even if we are wrong about this, the fact is that the reference is to “periodic upsurges of political unrest and occasional violence”. Bearing in mind also that the UNHCR did not, in its April 2002 Position paper, specify that Serbs or those ethnic groups whose situation is analogous to Serbs fall within the protection categories (see page 5 of the Claimant’s bundle) and the whole of the objective evidence, we are satisfied that the Adjudicator's finding that the Claimant is at real risk of serious harm is plainly wrong and cannot be allowed to stand.
11.1 We therefore determine the risk on return ourselves, based on the more recent documents we have been referred to. These say much the same things, except that, since the dates of the documents which were the Adjudicator, the situation has improved, albeit not to a great extent. For example, the Tenth Assessment of the OSCE states:
Considering the overall situation described in this report, the changes noted during the reporting period are not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future …. (last paragraph on page 93 of the Claimant's bundle).
We note that this refers to changes being “not yet fundamental enough for large scale returns”.
Notwithstanding the stabilisation of the security situation, the fear of harassment, intimidation and provocation remains part of everyday experience for members of the minority communities throughout Kosovo. Members of the minority groups, whether living in mixed communities or moving outside their own enclaves can become targets for grenade attacks, arson, physical assault in particular against the Kosovo Serbs, Roma, Egyptians ……….. (pages 98 and 99 of the Claimant's bundle).
We note that this refers to “fear of harassment, intimidation and provocation” and, further, that it states that minorities “can become” targets for grenade attacks etc “whether living in mixed communities or moving outside their own enclaves”. The Claimant’s home area is, on other hand, dominated by Serbs, with only a minority of Albanians.
(with regard to Mitrovica) ………… Lack of security and freedom of movement remains a major obstacle to the establishment of normal life in the town……….. (page 108 of the Claimant's bundle).
We note that this refers to “normal life”. The test is not whether the Claimant would be able to live a normal life in northern Mitrovica but whether he would be subjected to serious harm.
(with regard to returns of Kosovo Serbs) …. The increase in returns for 2002 must be seen within the context of an overall downward trend in returns, most significantly amongst Kosovo Serbs, witnessed in the previous year. Many factors contributed to this decrease, including violent attacks against the minority communities in 2000 and 2001 and the instability created in the region by the conflicts in the fYROM and southern Serbia. Another determining factor was the saturation of the mono-ethnic enclaves, where large numbers of IDPs had sought refuge, over and above returnees going back home. Kosovo Serb families displaced from these locations have continued to return. These returns are encouraged by the security provided by such concentrations of Kosovo Serbs. It should be noted that these Kosovo Serb mono-ethnic communities of return were mono-ethnic villages or separate Kosovo Serb parts of ethnically mixed villages or towns in the pre-conflict period (page 112 of the Claimant’s bundle).
Since Serbs dominate northern Mitrovica, northern Mitrovica comes within the description of a “separate Kosovo Serb part” of an “ethnically mixed town in the pre-conflict period”. Accordingly, northern Mitrovica is an area to which Kosovo Serb families have continued to return. This is evidence that Serbs regard north Mitrovica as being safe which, in turn, is evidence that they are not at real risk of serious harm at the hands of Albanians in north Mitrovica.
11.2 We were referred in some detail to the Amnesty International Report dated 29th April 2003. We agree that this report also provides evidence of continuing security concerns for minority groups. Ms. Shaw referred us to several passages which she submitted show that there is insufficient protection. However, the issue of protection is only relevant if there is a real risk of serious harm. The second page of the Amnesty International Report (on page 116 of the Claimant’s bundle) states that Serbs living in other parts of Kosovo travelled to Mitrovica to access municipal and other services - including, in the divided town of Mitrovica, hospitals, schools and a parallel university - as well as to purchase Serbian goods. Again, this is evidence that Serbs regard north Mitrovica as being safe which, in turn, is evidence that they are not at real risk of serious harm at the hands of Albanians in north Mitrovica.
11.3 On the whole of the evidence before us, we accept that, if the Claimant returns to live in northern Mitrovica, his freedom of movement will be restricted, in that, he would experience difficulties if he were to travel south of the River Ibar or elsewhere. He may well be at risk of sporadic problems or even attacks at the hands of the minority Albanians in northern Mitrovica or those Albanians who may cross the River Ibar to northern Mitrovica. However, we are satisfied that, taken as a whole, the objective evidence shows that the risk that the Claimant would, in his home area, receive treatment sufficiently severe as to amount to serious harm at the hands of the Albanians is not such as to reach the low standard of a reasonable likelihood, and we so find. Of course, guarantees cannot be given but we make it clear that we have assessed the risk on the low standard of a reasonable likelihood.
11.4 The Claimant would be returned to Pristina. We therefore have to consider whether he would be able to travel in safety from Pristina, which is dominated by Albanians, to northern Mitrovica. Page 14 of the Amnesty International Report (page 131 of the Claimant's bundle) refers to the provision of escorted transport services. Escorts are provided by UNMIK or KFOR. We acknowledge that the increased mobility of minorities has been accompanied in “some areas” by an increase in security incidents, “in particular stone throwing at both buses and trains”. We also acknowledge that these services are limited, conditional and “not always available”. However, the fact is that escorted transport services are available. As stated in paragraph 11.2 above, there is evidence that Serbs from other parts of Kosovo do travel to northern Mitrovica. In all of the circumstances, we are satisfied that the Claimant would be able to travel safely from Pristina to northern Mitrovica.
12. For all of the above reasons, we are satisfied that the findings of the Adjudicator that the Claimant’s removal to Kosovo would be in breach of the U.K.’s obligations under the Refugee Convention and in breach of his rights under Article 3 are not sustainable, and are plainly wrong, given a proper assessment of the objective evidence to his particular facts.
13.1 On 17th November 2003, we received by facsimile a letter from Ms. Shaw dated 17th November 2003. On 18th November 2003, we received the original of this letter in the post. In this letter, Ms. Shaw states:
We write further to the hearing before the Tribunal on 12th November 2003. We wish to clarify the basis on which Alek Stojkov argues that there is a risk of persecution on his return to Serbia.
We understand that it is not in dispute that Alek is an Orthodox Christian from Kosovo who is non-Albanian speaking. He speaks the two Slavic languages, Serbo-Croat and the closely related Macedonian.
We trust that we made it clear in our submission that the danger for Alek arises when he is identified by the Albanian majority as being part of the Serb community. This would occur as a result of him speaking either Serbo-Croat or Macedonian, as a result of his residence in one of the Serb enclaves, and as a result of his Orthodox Christian faith.
The Tribunal received at the hearing country information describing the dangers faced by that community.
We ask that the Tribunal considers this clarification when making its decision on this case.
13.2 We have considered the information contained in this letter. As stated in paragraph 10.7 above, we have proceeded to determine this appeal on the basis that, in so far as the Claimant claims to fear persecution at the hands of Albanians in Kosovo, his position is to be regarded as analogous to either ethnic Serbs or other minority groups closely tied with the Serbs. As we have stated in paragraph 10.7 above, we have proceeded to determine this appeal on the basis that the Claimant does not speak Albanian, that he shares the same religion as Serbs and that the Adjudicator considered that he shares the same culture as Serbs. We have also stated in paragraph 10.7 above that we are prepared to determine this appeal on the basis that, on account of the language he speaks, he is reasonably likely to be perceived by Albanians as being either a Serb or so closely associated with Serbs that they (the Albanians) are reasonably likely to treat him in the same way as they would treat Serbs. We have, indeed, considered the appeal on the basis that the Appellant would be returning to his home area of northern Mitrovica, which is Serb-dominated (that is, a Serb enclave in Kosovo). Accordingly, we are satisfied that the information contained in the letter dated 17th November 2003 does not affect the outcome of this appeal.
14. It follows that we must allow the Secretary of State’s appeal.
Decision
The appeal of the Secretary of State is ALLOWED.
Ms. D. K. GILL
Vice President Date: 18th November 2003
Heard at:
Field House
_A (Macedonian Ethnic Group - Persecution) Serbia and Montenegro [2003] UKIAT 00156
Heard on:
12th November 2003
Date typed:
13th November 2003
Date promulgated:
21 November 2003-
Before:
MS D K GILL (CHAIRMAN)
............... (Vice President)
MR. A SMITH
Between:
The Secretary of State for the Home Department
Appellant
And
Respondent
DETERMINATION AND REASONS
Representation:
For the Secretary of State: Ms. J. Beach, Senior Home Office Presenting Officer.
For the Respondent: Ms. E. Shaw, of Turpin Miller & Higgin Solicitors.
1.1 The Secretary of State Appellant has appealed, with leave, against the determination of Mr. M B Hussain, an Adjudicator, who (following a hearing on 5th November 2002 at Hatton Cross) dismissed his appeal on asylum and human rights grounds allowed the appeal of Mr. Stojkov (who we shall hereinafter refer to as the Claimant) under Section 69(5) and under Section 65 of the Immigration and Asylum Appeals Act 1999 (the 1999 Act) against the Secretary of State’sRespondent’s decision of 14th November 2001 to refuse leave to enter give directions for his removal from the United Kingdom and to refuse his asylum and human rights claims.
1.2 This Determination is being reported because we assess whether the Claimant, who is from Kosovo and who is of Macedonian ethnic origin, would be at real risk of persecution or treatment in breach of Article 3 in his home area of northern Mitrovica and whether he would be able to travel to his home area safely from Pristina, which is where he would be returned to. Further details of the background to the Claimant's claim are provided below.
2.1 The Claimant is a national of Serbia and Montenegro, from Kosovo. The removal directions are for Kosovo.
2.2 The Claimant is of mixed ethnicity – his (late) father was a Macedonian and his mother is a Bosniak Muslim. The Claimant regards himself as a Macedonian. He practises the Orthodox Christian faith. He was born and raised in Pristina. In 1998, his father was killed, driving over a landmine. The Claimant and his mother then went to live in north west Mitrovica.
2.3 At paragraph 12 of the Determination, the Adjudicator stated that the Claimant’s claim – as set out by him in his interview - was that he feared the KLA who had tried to forcibly recruit him; the Claimant believed this was a ploy in order to get rid of him. However, the Adjudicator considered that the Claimant was no longer basing his claim on his difficulties with the KLA and that the basis of the Claimant's claim now, as he understood it, is that he feared persecution at the hands of the majority Albanian population as an ethnic Macedonian.
2.4 The Adjudicator noted that the Secretary of State had not disputed the Claimant's ethnic origin or his membership of the Orthodox Christian faith or his claim that he is not able to speak Albanian (paragraph 13 of the Determination).
2.5 The Adjudicator made the following findings:
(a) that the Claimant and his family relocated to Mitrovica in 1988/89 (paragraph 12 of the Determination). This timing must be an error on the Adjudicator’s part, because 1998/99 is referred to at paragraph 7 of the Determination which is consistent with the Claimant's statement dated 30th October 2002. However, nothing turns on this error.
(b) that the Claimant’s position must be regarded as analogous to either ethnic Serbs or other minority groups closely tied with the Serbs by the common heritage of language and culture (paragraph 14 of the Determination) and that his father worked for the Serbs (paragraph 22 of the Determination).
(c) that the Claimant has a well-founded fear of persecution on account of his ethnic origin (paragraph 22 of the Determination);
(d) that it was unduly harsh for the Claimant to relocate to Mitrovica, “where apart from questions of his physical safety, there remains serious doubts as to whether he would have to live in such isolation as to deprive him of the basic necessities of life” (paragraph 25 of the Determination).
3. Permission to appeal was granted generally by reference to the grounds of application. At the hearing before us, Ms. Beach withdrew the third ground, because she could not explain to us what it meant. Accordingly, the grounds which remained were:
(a) that the Adjudicator had failed to consider whether there was effective protection in Kosovo.
(b) that the Adjudicator had failed to distinguish between intimidation, harassment and persecution.
4. We asked the parties at the hearing whether the Claimant’s home area in Kosovo should be regarded as Mitrovica, given the Adjudicator's finding that the Claimant had relocated to Mitrovica in 1998. Both parties agreed that the Claimant's home area is Mitrovica. In fact, we need to be more specific, since there are two distinct areas of Mitrovica – the area to the north of the River Ibar in Mitrovica town, where the Serbs are in the majority and where the Claimant used to live prior to his departure from Kosovo and the area south of the River Ibar in Mitrovica where the Albanians are in the majority.
5.1 For the Secretary of State, Ms. Beach submitted that the Adjudicator was wrong to find that the Claimant’s position must be regarded as analogous to Serbs or other minority groups in Kosovo. She submitted that the Claimant’s own evidence (paragraph 12 at page 3 of the Claimant’s bundle) is that he was not part of the Serb community. The Claimant had initially based his claim on the fact that the KLA has asked him to join them. In Ms. Beach’s submission, he would not have been asked to join the KLA if he was regarded by the KLA as a Serb. Accordingly, Ms. Beach submitted that the KLA saw the Claimant as one of them, and not as a Serb. Paragraph K.6.9 of the CIPU Country Assessment Report dated October 2003 states that most ethnic Albanians are not strongly identified with their religion and that their animosity towards Serbs is essentially on the basis of ethnicity, with the difference in religion being a coincidental factor. Whilst the Claimant may share the same religion as the Serbs in Kosovo, he does not share their ethnicity.
5.2 Ms. Beach submitted that there was no objective evidence to show that ethnic Macedonians may be ill-treated in Kosovo; there is no reference to ethnic Macedonians in the CIPU report.
5.3 Ms. Beach then took us through various parts of the CIPU report, which she submitted shows that the Claimant would not receive treatment amounting to persecution if he is returned to Kosovo (paragraphs K.6.31 to K.6.36 of the CIPU report). Furthermore, he would be able to receive adequate protection (paragraphs K.6.38 to K.6.41 of the CIPU report).
6.1 For the Claimant, Ms. Shaw submitted that the Claimant's first language is Serbian. We pointed out at this stage that the Claimant had been interviewed in the Macedonian language and that he had given oral evidence in the Macedonian language. Upon taking instructions from the Claimant, Ms. Shaw informed us that her instructions were that the Macedonian language is not the same as Serbo-Croat but is very similar to it. The Claimant also shares the same religion as Serbs in Kosovo. Whilst paragraph K.6.9 of the CIPU report states that religion is seen by ethnic Albanians as a coincidental factor, the second part of the same paragraph refers to the destruction of over 100 Serbian Orthodox churches.
6.2 Ms. Shaw submitted that the Adjudicator had carefully considered the objective evidence, as paragraphs 15 to 23 of the Determination shows. In Ms. Shaw’s submission, the Determination of the Adjudicator was unusual in that the Adjudicator had set out parts of the relevant objective evidence in considerable detail. Accordingly, in Ms. Shaw’s submission, the first ground of appeal could not stand.
6.3 With regard to the second ground of appeal, Ms. Shaw submitted that the particular incident mentioned in paragraph 23 which is referred to in paragraph 2 of the grounds of application is only one incident in Mitrovica. The Ninth Assessment of the OSCE report was only one of the documents the Adjudicator had had before him. Accordingly, Ms. Shaw submitted that the second ground of appeal could not stand.
6.4 In the event that we were not with her, Ms. Shaw submitted that the objective evidence before us shows that there is a real risk of treatment amounting to persecution for ethnic minorities in Kosovo and those considered Serbs. The Claimant would therefore be at real risk of treatment sufficiently severe as to amount to persecution.
6.5 The OSCE Tenth Assessment Report shows that there would be insufficient protection for the Claimant (for example, pages 93, 98, 99, 108, 112 and 113 of the Claimant's bundle refer). The Amnesty International Report (for example, at pages 115, 119, 120, 121 122, 123, 128, 131 and 138 of the Claimant’s bundle) also shows that the Claimant would be at real risk of treatment amounting to persecution and that there would be insufficient protection.
7. Ms. Beach did not wish to respond and relied on her earlier submissions.
8. We reserved our Determination.
9. We have decided to allow the Secretary of State’s appeal. We are satisfied that the Adjudicator's finding that the Claimant is at risk of treatment which is sufficiently severe as to amount to serious harm (by which term we refer to treatment amounting to persecution or in breach of Article 3) is plainly wrong, is not sustainable and cannot be allowed to stand. In reaching this conclusion, we have followed the guidance of the Court of Appeal in Oleed [2002] UKIAT EWCA Civ 1906. We now give our reasons for reaching our conclusion.
10.1 The objective evidence shows that the location of the home area is important, because the security concerns vary from area to area. The Claimant's home area was found by the Adjudicator to be Mitrovica. This follows from the Adjudicator's finding that the Claimant and his family had relocated to Mitrovica in 1998/99. We were careful at the hearing before us to confirm with both parties that the Claimant's appeal should be determined on the basis that his home area is Mitrovica. Both parties agreed that this is the case. As we have stated in paragraph 4 above, it is necessary to be more specific because the objective material shows that there is a Serb-dominated part of Mitrovica and an Albanian-dominated part of Mitrovica. Prior to his departure from Kosovo, the Claimant lived in the Serb-dominated part of Mitrovica. At paragraph 4 of his statement dated 30th October 2002, he refers to north west Mitrovica. At paragraph 11 of his statement, he refers to northern Mitrovica.
10.2 With regard to Ms. Beach’s submission that there is no objective evidence which shows that Macedonians are persecuted in Kosovo, we note that Ms. Shaw did not dispute that this was the case. Indeed, it was acknowledged by both parties before the Adjudicator. However, it is a fact that Kosovo has seen hostility along ethnic lines. In saying this, we make it clear that we are but making only a general observation of the situation in general since the ethnic cleansing of the Albanians from Kosovo. It would therefore be dangerous to assume that, simply because there is no mention in the objective material of a particular ethnic group in Kosovo, this means that members of that ethnic group are not at real risk of serious harm. It may simply be that the reason why there is no mention of the situation of ethnic Macedonians in Kosovo is simply because their numbers have been or are very small.
10.3 As we state below, the objective material as a whole shows that persons who are ethnically in the minority in any particular area have security concerns. The Secretary of State has not disputed the Claimant’s nationality, nor his ethnic origin as a Macedonian. Given that there is no reference in the objective material to the situation of Macedonians in Kosovo and given that the absence of any such reference may mean that the total number of Macedonians in Kosovo is very small, this leads to the conclusion that the Claimant will be in a minority situation in his home area in northern Mitrovica, where (as shown by the objective evidence) Serbs are in the majority.
10.4 The Claimant’s accounts of his experiences in Kosovo do not suggest that he was at real risk of serious harm at the hands of the Serbs. For example, at paragraphs 11 and 12 of his statement dated 30th October 2002, he acknowledged that there are mainly Serbs living in northern Mitrovica but states that it is not possible for him to survive there. He then states that Albanians did go into northern Mitrovica with guns and he faced their threats. He then said that he was not really part of the Serb community and that he experienced some provocation from the Serbs but it was not life threatening as the danger he experienced from the Albanians. It is clear that his asylum and human rights claims have been put on the basis of his fear of serious harm at the hands of Albanians. It has not been put on the basis of his fear of serious harm at the hands of the Serbs on account of being a Macedonian. He shares the same religion as Serbs. His own account (see paragraph 10.7 below) is that his language is very similar to that of Serbo-Croat, which he says is the language of the Serbs. Of course, strictly speaking, the instructions which the Claimant gave to Ms. Shaw on this point at the hearing before us cannot be regarded as “evidence”.
10.5 The Claimant's mother is a Bosniak Muslim. At paragraph 12 of his statement dated 30th October 2003, he said that the Serbs really hate the Muslims. However, at paragraph 13 of the same statement, he said that he has not had any news of his mother since his arrival in the United Kingdom. Accordingly, his account is that he has lost contact with his mother; this would reduce further the likelihood of any difficulties from the Serbs. In any event, his own account of his difficulties from the Serbs when he was living with his mother is that he had “some provocation” from them. He has not mentioned anything which shows that he experienced treatment amounting to serious harm at the hands of the Serbs, on account of his mother’s religion.
10.6 Accordingly, we are satisfied that, on the Claimant's own accounts, he would not be at real risk of treatment sufficiently severe as to amount to serious harm on account of his Macedonian ethnicity at the hands of the Serbs if he were to return to Kosovo and live in northern Mitrovica, where the Serbs are in the majority. Accordingly, for all of these reasons, we consider that this appeal falls to be determined on the basis of the Claimant's fear of persecution at the hands of members of the Albanian ethnic group.
10.7 In deciding whether there is a risk of serious harm at the hands of Albanians, we have decided to proceed on the basis of the Adjudicator's finding that the Claimant’s situation ought to be regarded as analogous to that of either ethnic Serbs or other minority groups closely tied with the Serbs, for the following reasons:
(a) The Adjudicator's finding in this respect was not challenged by the Secretary of State in the grounds of application and permission to appeal was not granted in this respect.
(b) The Claimant has not sought to challenge this finding either. Indeed, at the hearing before us, as stated above, his case was put on the basis that he would be regarded as a Serb or as associated with the Serbs.
Having said that we proceed on this basis, we note in passing that the information we were given at the hearing (by Ms. Shaw on instructions from the Claimant) that the Macedonian language is very similar to Serbo-Croat although the two languages are not the same appears to be at odds with the objective evidence. The CIPU report for Serbia and Montenegro dated October 2003 refers to the Serbian language as being formerly known as Serbo-Croat and states that it is usually written in Cyrillic script (paragraph 1.2.2). On the other hand, the CIPU report for Macedonia dated April 2003 refers to the official language for Macedonia being the Macedonian language. There is no reference to this being written in Cyrillic script. We recognise that we have referred to a document which has not been submitted in evidence. We acknowledge that we have not alerted the parties at the hearing before us that we might refer to it. This is because this matter did not come to our minds until after the hearing. However, it does not affect the outcome of the appeal, because we have decided to determine the appeal on the basis of the Adjudicator's finding that the Claimant’s position is to be regarded as analogous to either ethnic Serbs or other minority groups closely tied with the Serbs.
In reaching this finding, the Adjudicator took into account the fact that the Claimant shares the same religion as Serbs and that he does not speak Albanian. The Adjudicator also appears to have considered that the Claimant shares the same culture as Serbs. We bear these factors in mind in deciding the risk on return at the hands of the Albanians in Kosovo. We are also prepared to determine this appeal on the basis that, on account of the language he speaks, he is reasonably likely to be perceived by Albanians as being either a Serb or so closely associated with Serbs that they (the Albanians) are reasonably likely to treat him in the same way as they would treat Serbs.
10.8 We agree with Ms. Shaw that the Adjudicator set out parts of the objective evidence in his Determination in some considerable detail. However, when assessing the risk of serious harm, he failed to take into account his findings that the Claimant had moved to (northern) Mitrovica in 1998/99 and that the Claimant's position should be regarded as analogous to that of either ethnic Serbs or other minority groups closely tied with the Serbs.
10.9 Furthermore, in considering the extracts of the UNHCR’s Position Paper dated April 2002, the Adjudicator failed to consider them within the context of paragraph 9 of the same report (page 6 of the Claimant’s bundle). This paragraph is the first paragraph of Section II, entitled “Minorities”. This states:
The term “minority” is used to describe groups of persons who are in a numerical minority situation in a particular location, regardless of their status elsewhere in Kosovo or in the Federal Republic of Yugoslavia (FRY).
10.10 It is with this in mind that the remaining parts of the UNHCR’s Position paper which the Adjudicator quoted should be read – for example, paragraph 14 of the report (on the same page of the Claimant's bundle) which states:
UNHCR stresses that minority return should take place on a strictly voluntary basis and based on fully informed decisions of the members of this community……….. Minorities should not be forced, compelled or induced to return to Kosovo.
10.11 The overall inference the Adjudicator drew from the documents which were before him (including the UNHCR Position paper) is that any group which might be seen as a minority group in relation to Kosovo as a whole is at real risk of serious harm. That, in fact, is not what the UNHCR Position Paper states. We are of the opinion that the UNHCR Position Paper makes it clear that the situation facing each ethnic community varies according to the location and whether, in any particular location, the ethnic group is a minority. The OSCE Report (Ninth Assessment, which was before the Adjudicator) is along similar lines.
10.12 As we have stated above, the Claimant's home area was found by the Adjudicator to be north Mitrovica. Besides the fact that the Adjudicator erred in considering the internal flight option at paragraph 25, the fact is that, in north Mitrovica, the Claimant would be in an area where Serbs are in the majority. At paragraph 23 of the Determination, the Adjudicator quoted from paragraph 3 of the OSCE Report (Ninth Assessment). Some of the text he quotes has been left out. The full text of this paragraph is to be found at page 19 of the Claimant's bundle. The missing text refers to violence perpetrated by Serbs in April 2002. The Claimant is someone whose situation (in so far as any risk from the Albanians is concerned) has been found to be analogous to either ethnic Serbs or other minority groups closely tied with the Serbs. The part of this paragraph which the Adjudicator does quote at paragraph 23 of the Determination states:
….. periodic upsurges of political unrest and occasional violence in north Mitrovica continued to have a negative effect on ethnic minorities in the Serb-dominated north, particularly those few non-Serbs remaining in isolation in northern urban Mitrovica towns………………. The few remaining ethnic Albanians (who are in a minority in this Serb-majority area) continued to be housebound and were subject to threats periodically by members of the majority Serb population, while other non-Serbs (such as some Bosniak families) also faced an increase in intimidation …. (Our emphasis)
10.13 We draw attention to two matters – firstly, the fact that this paragraph also confirms that Serbs are in the majority in the area the Claimant comes from (north Mitrovica) and, secondly, that the reference to ethnic minorities is a reference to those who are in a minority position in north-Mitrovica. The Claimant’s claim is based on his fear of serious harm at the hands of the Albanians. Albanians are in a minority in northern Mitrovica. The passage we have just quoted refers to problems experienced by Albanians and non-Serbs in Northern Mitrovica, and not problems caused by Albanians. If the Adjudicator had properly applied his finding that the Claimant's position is analogous to Serbs or other minority groups who are closely tied to Serbs, we do not see how he could have found that the Claimant would be at real risk of serious harm in north Mitrovica at the hands of Albanians.
10.14 In any event, even if we are wrong about this, the fact is that the reference is to “periodic upsurges of political unrest and occasional violence”. Bearing in mind also that the UNHCR did not, in its April 2002 Position paper, specify that Serbs or those ethnic groups whose situation is analogous to Serbs fall within the protection categories (see page 5 of the Claimant’s bundle) and the whole of the objective evidence, we are satisfied that the Adjudicator's finding that the Claimant is at real risk of serious harm is plainly wrong and cannot be allowed to stand.
11.1 We therefore determine the risk on return ourselves, based on the more recent documents we have been referred to. These say much the same things, except that, since the dates of the documents which were the Adjudicator, the situation has improved, albeit not to a great extent. For example, the Tenth Assessment of the OSCE states:
Considering the overall situation described in this report, the changes noted during the reporting period are not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future …. (last paragraph on page 93 of the Claimant's bundle).
We note that this refers to changes being “not yet fundamental enough for large scale returns”.
Notwithstanding the stabilisation of the security situation, the fear of harassment, intimidation and provocation remains part of everyday experience for members of the minority communities throughout Kosovo. Members of the minority groups, whether living in mixed communities or moving outside their own enclaves can become targets for grenade attacks, arson, physical assault in particular against the Kosovo Serbs, Roma, Egyptians ……….. (pages 98 and 99 of the Claimant's bundle).
We note that this refers to “fear of harassment, intimidation and provocation” and, further, that it states that minorities “can become” targets for grenade attacks etc “whether living in mixed communities or moving outside their own enclaves”. The Claimant’s home area is, on other hand, dominated by Serbs, with only a minority of Albanians.
(with regard to Mitrovica) ………… Lack of security and freedom of movement remains a major obstacle to the establishment of normal life in the town……….. (page 108 of the Claimant's bundle).
We note that this refers to “normal life”. The test is not whether the Claimant would be able to live a normal life in northern Mitrovica but whether he would be subjected to serious harm.
(with regard to returns of Kosovo Serbs) …. The increase in returns for 2002 must be seen within the context of an overall downward trend in returns, most significantly amongst Kosovo Serbs, witnessed in the previous year. Many factors contributed to this decrease, including violent attacks against the minority communities in 2000 and 2001 and the instability created in the region by the conflicts in the fYROM and southern Serbia. Another determining factor was the saturation of the mono-ethnic enclaves, where large numbers of IDPs had sought refuge, over and above returnees going back home. Kosovo Serb families displaced from these locations have continued to return. These returns are encouraged by the security provided by such concentrations of Kosovo Serbs. It should be noted that these Kosovo Serb mono-ethnic communities of return were mono-ethnic villages or separate Kosovo Serb parts of ethnically mixed villages or towns in the pre-conflict period (page 112 of the Claimant’s bundle).
Since Serbs dominate northern Mitrovica, northern Mitrovica comes within the description of a “separate Kosovo Serb part” of an “ethnically mixed town in the pre-conflict period”. Accordingly, northern Mitrovica is an area to which Kosovo Serb families have continued to return. This is evidence that Serbs regard north Mitrovica as being safe which, in turn, is evidence that they are not at real risk of serious harm at the hands of Albanians in north Mitrovica.
11.2 We were referred in some detail to the Amnesty International Report dated 29th April 2003. We agree that this report also provides evidence of continuing security concerns for minority groups. Ms. Shaw referred us to several passages which she submitted show that there is insufficient protection. However, the issue of protection is only relevant if there is a real risk of serious harm. The second page of the Amnesty International Report (on page 116 of the Claimant’s bundle) states that Serbs living in other parts of Kosovo travelled to Mitrovica to access municipal and other services - including, in the divided town of Mitrovica, hospitals, schools and a parallel university - as well as to purchase Serbian goods. Again, this is evidence that Serbs regard north Mitrovica as being safe which, in turn, is evidence that they are not at real risk of serious harm at the hands of Albanians in north Mitrovica.
11.3 On the whole of the evidence before us, we accept that, if the Claimant returns to live in northern Mitrovica, his freedom of movement will be restricted, in that, he would experience difficulties if he were to travel south of the River Ibar or elsewhere. He may well be at risk of sporadic problems or even attacks at the hands of the minority Albanians in northern Mitrovica or those Albanians who may cross the River Ibar to northern Mitrovica. However, we are satisfied that, taken as a whole, the objective evidence shows that the risk that the Claimant would, in his home area, receive treatment sufficiently severe as to amount to serious harm at the hands of the Albanians is not such as to reach the low standard of a reasonable likelihood, and we so find. Of course, guarantees cannot be given but we make it clear that we have assessed the risk on the low standard of a reasonable likelihood.
11.4 The Claimant would be returned to Pristina. We therefore have to consider whether he would be able to travel in safety from Pristina, which is dominated by Albanians, to northern Mitrovica. Page 14 of the Amnesty International Report (page 131 of the Claimant's bundle) refers to the provision of escorted transport services. Escorts are provided by UNMIK or KFOR. We acknowledge that the increased mobility of minorities has been accompanied in “some areas” by an increase in security incidents, “in particular stone throwing at both buses and trains”. We also acknowledge that these services are limited, conditional and “not always available”. However, the fact is that escorted transport services are available. As stated in paragraph 11.2 above, there is evidence that Serbs from other parts of Kosovo do travel to northern Mitrovica. In all of the circumstances, we are satisfied that the Claimant would be able to travel safely from Pristina to northern Mitrovica.
12. For all of the above reasons, we are satisfied that the findings of the Adjudicator that the Claimant’s removal to Kosovo would be in breach of the U.K.’s obligations under the Refugee Convention and in breach of his rights under Article 3 are not sustainable, and are plainly wrong, given a proper assessment of the objective evidence to his particular facts.
13.1 On 17th November 2003, we received by facsimile a letter from Ms. Shaw dated 17th November 2003. On 18th November 2003, we received the original of this letter in the post. In this letter, Ms. Shaw states:
We write further to the hearing before the Tribunal on 12th November 2003. We wish to clarify the basis on which Alek Stojkov argues that there is a risk of persecution on his return to Serbia.
We understand that it is not in dispute that Alek is an Orthodox Christian from Kosovo who is non-Albanian speaking. He speaks the two Slavic languages, Serbo-Croat and the closely related Macedonian.
We trust that we made it clear in our submission that the danger for Alek arises when he is identified by the Albanian majority as being part of the Serb community. This would occur as a result of him speaking either Serbo-Croat or Macedonian, as a result of his residence in one of the Serb enclaves, and as a result of his Orthodox Christian faith.
The Tribunal received at the hearing country information describing the dangers faced by that community.
We ask that the Tribunal considers this clarification when making its decision on this case.
13.2 We have considered the information contained in this letter. As stated in paragraph 10.7 above, we have proceeded to determine this appeal on the basis that, in so far as the Claimant claims to fear persecution at the hands of Albanians in Kosovo, his position is to be regarded as analogous to either ethnic Serbs or other minority groups closely tied with the Serbs. As we have stated in paragraph 10.7 above, we have proceeded to determine this appeal on the basis that the Claimant does not speak Albanian, that he shares the same religion as Serbs and that the Adjudicator considered that he shares the same culture as Serbs. We have also stated in paragraph 10.7 above that we are prepared to determine this appeal on the basis that, on account of the language he speaks, he is reasonably likely to be perceived by Albanians as being either a Serb or so closely associated with Serbs that they (the Albanians) are reasonably likely to treat him in the same way as they would treat Serbs. We have, indeed, considered the appeal on the basis that the Appellant would be returning to his home area of northern Mitrovica, which is Serb-dominated (that is, a Serb enclave in Kosovo). Accordingly, we are satisfied that the information contained in the letter dated 17th November 2003 does not affect the outcome of this appeal.
14. It follows that we must allow the Secretary of State’s appeal.
Decision
The appeal of the Secretary of State is ALLOWED.
Ms. D. K. GILL
Vice President Date: 18th November 2003