Case No: C5 2006/1168
Neutral Citation Number: [2007] EWCA Civ 726
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AS/21484/2004] 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 2nd July 2007

Before:

LORD JUSTICE WARD
LORD JUSTICE THOMAS
and
LORD JUSTICE RICHARDS

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	RK (Serbia)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr N Armstrong (instructed by Messrs Wilson & Co) appeared on behalf of the Appellant.

Mr C Bourne (instructed by Treasury Solicitor) appeared on behalf of the Respondent.

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Judgment

Lord Justice Richards:

1.	The appellant is a Serbian national from Kosovo.  He came to the United Kingdom with his wife in 2004 and claimed asylum.  His claim and a related human rights claim were refused by the Secretary of State.  An appeal to an adjudicator was dismissed and the matter then came before the Asylum and Immigration Tribunal for reconsideration.  

2.	At the first stage of reconsideration the Tribunal identified a material error of law by the adjudicator and ordered a second stage hearing “to decide whether on the factual findings of the adjudicator in regard to the personal history of the Appellant he is likely to be at risk on return and whether an internal flight alternative is a realistic option”.  The second stage of reconsideration was carried out by a designated immigration judge, Mr Barton, who arrived at the same decision as the original adjudicator and, therefore, again dismissed the asylum and human rights appeals.  The case now comes before us as an appeal against a decision of the designated immigration judge.  

3.	The case was stood out pending judgment of this court in DK (Serbia) [2006] EWCA Civ 1747, concerning the approach to be adopted at the first and second stages of reconsideration.  In the light of that judgment, no procedural point is taken before us.  Although the written reasons for the decision of the first stage were not seen by the appellant at the time, it is accepted that the basis for the second stage of reconsideration was sufficiently clear from what had been said at the first-stage hearing.  Nor is any complaint made about the principle of a second-stage reconsideration confined to an assessment of risk on the basis of the adjudicator’s factual findings.  The complaint relates to the actual decision of the judge at the second stage.

4.	In his decision the judge summarised the adjudicator’s factual findings as follows:

“7. The Adjudicator accepted that the Appellant is an ethnic Roma [currently aged 62] who spent his life in northern Mitrovica [that is the Serb-dominated part of the town that lies to the north of the River Iber].  He never left that area, until he came to the UK by lorry in September 2004 with his wife.  His wife is a Bosniac.

“8. He noted that the Appellant at no time lived in the Roma community. His parents were both Roma, but his father was a driver/mechanic working at Trepca Mine and distanced himself from Roma. The family enjoyed a good standard of living settled in the general community. The Appellant spoke Albanian and Serbian and attended primary and secondary education after which he gained a Diploma in Technology.  His parents used the Albanian language at home and taught him no Romany.  His friends were mainly Albanians and Bosnians and he only knew 3 or 4 other Roma.

“9. He worked as an engineer until 1990 and owned his own flat.  In 1990 he was dismissed from his employment, but he and his wife became domestic employees of a Hungarian dentist, Zharko Kuzeljevic. He did gardening, housework and cleaning whilst his wife looked after Zharko's young daughter who was very ill and later died in February 2004.

“10. The Adjudicator accepted the Appellant's account of how he became ‘caught up’ in the hostilities between Serbs and Albanians. On 25th March 1999 three masked men searched his flat and took money, but after that they came for him three days later and made him (along with other Roma) assist with removal of Albanian corpses from one of the bridges over the River Iber. They were taken for burial in a mass grave. The day after, he was again made to help with burial duties, this time in southern Mitrovica. He was concerned that he had been seen by Albanians with the corpses. The following month the masked men came again for the Appellant and enlisted his help with looting the properties of Albanians who had been expelled from Mitrovica. The Appellant was never involved in the killing of Albanians and was never subsequently threatened or attacked by Albanians.

“11. As from mid-June 1999, Mitrovica was a divided city, north and south, with French NATO troops in the north to keep the peace. From September 1999, the Appellant and his wife were sheltered in ‘a small clinic’ [presumably the surgery] in Zharko's garden and did not dare to leave the premises. The Appellant felt unsafe in his area, because many Roma were beaten by Serbs. He recalled the inter-ethnic violence of mid-March 2004 and said that on the evening of 15th March a hand-grenade was thrown into Zharko's garden, but no-one saw those responsible. Next day, a group of people came carrying long truncheons to the property and beat the Appellant and his wife. KFOR troops arrived and the perpetrators left. They had been warned that they were living in Serbian land. UNMlK took a statement from the Appellant and promised to maintain more frequent patrols in the area.

“12. The Adjudicator noted that the Appellant told him he had experienced no problems from Albanians and there had been no problems either from Serbs between May 1999 and March 2004.  This is with the exception of two assaults upon his wife.  She had on an occasion in July 1999 been attacked in a local shop when a kettle of hot water was thrown over her and her hair was pulled.  It was claimed that there was a later incident in September 2004 when an attempts had been made to kidnap her from Zharko’s garden, but this had been foiled by the chance passing of a KFOR patrol.  The adjudicator did not believe this last incident.

“13. In May 2004, the Appellant sold his flat to Zharko to raise the funds for he and his wife to be taken out of Kosovo to the UK by lorry. The arrangements made by Zharko took several months to bring to fruition.” 

The judge stated that he had to accept those findings of fact and then make an assessment of risk on return for this particular appellant and his wife to their home area of northern Mitrovica.  

5.	The judge then went on to consider the materials before him relating to risk on return.  He dealt at length with an expert report by Dr Duijzing, since the adjudicator’s failure to give reasons for rejecting the views of that expert was one of the errors of law identified at the first stage of reconsideration.  The judge referred to two relevant Tribunal decisions and examined more recent objective materials placed before him by the parties.  He then set out his conclusions in relation to the appellant as follows:

“37. Evaluating all that is before me, I conclude that there is not a real risk that this Appellant would be persecuted currently for a Refugee Convention reason upon return to north Mitrovica. There is not a reasonable degree of likelihood that he would be identified as a Roma.  He is not dark-skinned and does not have markedly Roma features. He is a man of mature years and good education.  He is married to a Bosniac. He is not a typical Roma. He has never been a part of the Roma community, but has always lived alongside Serbs in the general community. The claim was made that he speaks Albanian with a Roma accent and would be recognised by this, but no attempt has been made to show that this is so. The Adjudicator gave cogent reasons for disbelieving that he has a distinguishable accent. Albanian is his mother tongue that he has used all his life, living, attending school and then during his working life in Mitrovica outside the Roma community (with few Roma acquaintances). He speaks Serbian also and communicates with his wife in that medium. This is the language he would presumably use when talking to Serbs.

“38. Even if he should be recognised as a Roma married to a Bosniac, his past history does not support the claim that he has faced persecution.  He lived all his life in northern Mitrovica, worked for years as an engineer and purchased a flat.  He has never lived in the Roma community and has had no need to do so, or to take refuge in a camp.  The facts found by the Adjudicator are that he encountered some problems towards the end of the war in 1999, when he was unwillingly made to help to bury Albanian corpses two days running and he was later made to help loot the homes of Albanians who had been driven out of the area. These were no doubt distasteful experiences, but were of limited duration and at a time of extreme strife.  I do not find they to amount to persecution. It was not until nearly 5 years later that he again was touched personally by the ethnic problems, when a hand grenade was thrown into the garden of his employer's home where he was living. This occurred on 15th March 2004-the height of the inter-ethnic riots. The Appellant said that the culprits were unknown and were not caught, but he blamed Serbs and said it had been motivated by the presence of himself and his wife staying in the Dentist's surgery.

39. This is an implausible explanation for the occurrence. The events in Mitrovica, as the reports in the Appellant's bundle show, were in the form of an advance by angry Albanians across the bridge from the South into the Serb-held area and was repulsed by French KFOR troops. There was fire returned by Serbs and a report of one hand grenade being thrown.  The reports are detailed, but include no mention of any backlash against ethnic minorities resident within the Northern City.  Upon the basis of the material I have seen, I accept to the lower standard of proof that there was an explosion in the garden of the Appellant's employer, but there is no evidence as to motivation. The Appellant's explanation is pure speculation. Given the events that were taking place, the incident is far more likely to have been a random and non-targeted act, possibly by the Albanians.

“40. There was one further incident the following day, when the Adjudicator accepted that the Appellant and his wife were assaulted in the surgery by a group carrying truncheons and they were warned to leave the Serb area, before troops came to their aid. This appears to have been an isolated incident at a time of great tension.  The KFOR troops restored order and promised to maintain a more regular patrol of the area.  There was no repetition of the incident, notwithstanding that the Appellant and his wife remained there for a further 6 months. I conclude that the facts bear out that there was a sufficiency of protection by KFOR and also that there was no systematic targeting of the Appellant.

“41. The Appellant claimed that he fears targeting by extremist Albanians on account of his being seen as a Serb collaborator. I do not accept this. Firstly, he helped the Serbs only briefly and several years ago and on an involuntary basis. Secondly, there is no credible evidence that he ever came to be identified by Albanians.  Thirdly, even if he were to be so targeted, north Mitrovica is a Serb stronghold and would not be accessible to Albanians. If he were a target, he would have been killed during the 5 years since 1999.

“42. The Appellant claimed, at a very late stage in the appeal proceedings, that he fears being silenced by Serbs who may believe he could give evidence of their war crimes.  The timing of this claim gives the lie to the claim. If he had genuine concerns, he would have raised it earlier. In any event, the men who pressed him into helping them in 1999 were said to have worn masks, so that the Appellant could not identify them. Furthermore, he lived in the Serb community for 5 years after that time and no-one took action against him, as they surely would have. He and his wife were the live-in domestics of a dentist during this time, but this was hardly a secure or secret place, as it would have been accessible to a section of the public who were patients. There is not a reasonable degree of likelihood that he would be at real risk on this account.”

6.	All this led the judge to conclude that the appellant had not established past persecution or a real risk of future persecution on return to his home area.  The appellant could look to UNMIK and KFOR to provide a sufficiency of protection.  This led to the dismissal of the asylum claim; essentially the same considerations led to the dismissal of the human rights claim.

7.	For the appellant Mr Armstrong, in commendably succinct and well-focused submissions, makes a number of complaints about the judge’s reasoning.  At the forefront of his oral submissions he raises an issue of unfairness which arises in this way.  He points out that the judge started with a finding that there was not a reasonable degree of likelihood that the appellant would be identified as a Roma upon return.  Mr Armstrong says that this misses the point.  In his home area the appellant was already known to be a Roma, so that the question of how easily he might be identified as such on return was irrelevant.  That he was already known to be a Roma was apparent, first, from the nature of the second attack in March 2004 in which the group assaulting the appellant and his wife had warned them to leave the Serb area.  The adjudicator had accepted the appellant’s account of that attack and its ethnic motivation was clear.

8.	Similarly, the adjudicator had accepted the appellant’s account of the hand-grenade attack the day before.  Part of the appellant’s account of that incident was that he believed the attack to have been ethnically motivated.  Mr Armstrong submits that it was not open to the judge to dismiss that explanation in the way he did, at least without first putting the point to the appellant or his representatives to enable the appellant to be called to give evidence about why he believed the attack to have been ethnically motivated and why he believed that the people who had attacked on the second occasion were the same as those who were responsible for the grenade attack.

9.	It is the failure on the part of the judge to have raised this point with the appellant or his representatives before deciding it in the way he did which is said by Mr Armstrong to have involved real unfairness.  In any event, it is said that the judge, by failing to work on the basis that the two attacks on the appellant in March 2004 were ethnically motivated, erred in relation to his assessment of risk, and the errors are submitted to have been material errors.  

10.	I will deal with the two incidents in March 2004 in chronological order.  In my view, the judge’s approach to the first incident cannot be faulted.  The throwing of the hand-grenade into the garden occurred in the context of an advance by Albanians into the Serb held area which was repulsed by KFOR troops.  The adjudicator in his determination had observed that no-one saw who was responsible for the throwing of the grenade into the garden and he had found the appellant to have been unfortunately involved in the violence of that day.  The judge for his part, having considered the objective materials, pointed out that reports made no mention of any backlash against ethnic minorities in the northern part of Mitrovica.  There was nothing to show that the throwing of the grenade into the garden was targeted at the appellant, let alone that it was motivated by his Roma ethnicity.  In my judgment, he was reasonably entitled to find that the incident was far more likely to have been a random and non-targeted attack, possibly by Albanians.

11.	In so finding, the judge did not depart at all from the factual findings of the adjudicator which had to form the basis of his second-stage reconsideration.  On the contrary, it seems to me that what he said was entirely consistent with the passages in the adjudicator’s determination where the adjudicator had dealt with this incident.  

12.	Likewise, in my judgment, fairness did not require the point to be raised at the hearing with the appellant or his representatives as contended for by Mr Armstrong.  It seems to me that this is the kind of exercise that the judge had to carry out on the basis of the materials before him in order to perform the task given to him in relation to the second stage.  If the appellant had wanted further findings of fact to be made in the light of the adjudicator’s determination, then, as Mr Bourne submitted on behalf of the Secretary of State, the appellant could and should have sought leave to give such evidence.  In so far as it is contended by Mr Armstrong that the appellant simply assumed that the reconsideration would proceed on the basis of his stated belief as to the motivation for the attacks, there was no basis for such an assumption.  The appellant was not entitled to proceed on the basis that the judge at the second stage would do otherwise than examine the objective evidence in order to determine whether the appellant’s belief was well-founded.  

13.	Moreover, the fact is that the appellant had already set out, in answers in interview and in his written witness statement and oral evidence before the adjudicator, what he believed to be the motivation, and for my part I can see nothing further that the appellant could usefully have said upon this matter.  Accordingly, I conclude that there was no unfairness.  

14.	As to the incident the following day, it is true that, from the remarks made by the attackers, the assault appears to have had an ethnic motivation.  There is, however, nothing to show that it was because the appellant had been identified as Roma rather than, for example, that he was perceived to be Albanian or his wife had been identified as Bosniac.  All that one can determine from the known facts is that the attack took place because they were perceived to be non-Serbs.  In any event, I do not consider that this one incident would be sufficient to establish that the appellant was already known in his home area to be a Roma so as to render irrelevant the judge’s finding that he would not be identified as such upon return.

15.	Coming back to the way in which the argument generally is put by Mr Armstrong and having regard to his written as well as his oral submissions on this, I do not accept that the judge erred in approaching the matter as he did, placing weight on his conclusion that the appellant would not be identified on return as Roma.  In any event, it is quite clear that the judge did not consider the matter simply on the basis the appellant would not be recognised as a Roma but dealt in terms with the position if the appellant were recognised as a Roma, and indeed as a Roma married to a Bosniac.  That is clear from the opening words in paragraph 38 of the judge’s decision which I have quoted and from the analysis in his following paragraphs.  

16.	The judge looked at the appellant’s history, he found that the events of 1999 were of limited duration at a time of extreme strife and did not amount to persecution.  He looked at the two incidents in March 2004, treating the first incident in the way that I have already described and concluding in relation to the second that it appeared to be an isolated incident, of which there was no repetition notwithstanding that the appellant and his wife remained there for a further six months.  He pointed out that there was no systematic targeting of the appellant and he found that there was sufficiency of protection from KFOR.  He went on to find that there was no reason to believe that extremist Albanians would target the appellant as a perceived Serb collaborator and he rejected the appellant’s claim to be at risk of being silenced by Serbs who might believe he could give evidence of their war crimes.  

17.	For all those reasons the judge properly found that even if the appellant would be recognised on return as a Roma, he would still not be at risk of persecution in his home area and there would be a sufficiency of protection for him.  Those findings were consistent with the Tribunal decisions and objective materials of which the judge took due account.  In my judgment, nothing in Mr Armstrong’s submissions is capable of undermining the judge’s conclusions on those matters; and in particular, once the argument of unfairness is rejected, as I have rejected it, there is frankly nothing left to this part of the appellant’s case.

18.	I should mention for completeness two further matters that were originally advanced in the written skeleton argument as stand-alone submissions but one of which was touched on by Mr Armstrong as part and parcel of his main case with which I have already dealt.  That is the question of mixed marriage, it being contended that the judge failed to take account of the risk to the appellant and his wife as a couple of mixed ethnicity.  For reasons that I have already covered, I take the view that such a submission does no justice to the judge’s actual reasoning.  He was clearly aware that one of the bases on which the risk was alleged was that of the appellant’s marriage as a Roma to a woman of Bosniac ethnicity.  The opening words of paragraph 38 show that he was alive to the point: he considered the matter not just on the basis of the appellant being recognised as a Roma but on the basis that he would be recognised as a Roma married to a Bosniac -- the mixed marriage point, raised in terms.  

19.	The subsequent analysis was equally applicable to the issue of mixed marriage as it was to the issue of Roma ethnicity.  Taken by itself, it was an analysis justifying the conclusion that the appellant would not be at risk even if he were recognised as a Roma in a mixed marriage with a Bosniac.  Mr Bourne in his skeleton argument has drawn our attention to additional materials in relation to the issue of mixed marriage.  In the circumstances I think it unnecessary to deal with those matters.  It is sufficient to say that nothing that I have seen causes me to doubt the correctness of the judge’s approach in relation to this issue.

20.	Finally, the other stand-alone point referred to in Mr Armstrong’s skeleton argument is a submission that the judge failed to take into account that the appellant and his wife would no longer have the shelter on return which they had previously enjoyed during their period in Mitrovica, that is to say the shelter of the dentist’s home.  There is no force in that point.  The shelter that the appellant and his wife had previously enjoyed played no part in the judge’s finding as to the absence of risk on return and was not necessary for that finding.  On the contrary, the judge found that the appellant and his wife had lived in the Serb community for five years since the events of 1999 and that during that period no-one had taken action against them.  He described the dentist’s home as “hardly a secure or secret place, as it would have been accessible to a section of the public who were patients”.  It is plain that he considered the point and equally plain, in my view, that the judgment he reached in relation to it was reasonably open to him.

21.	For all those reasons I have come to the conclusion that this appeal should be dismissed.

Lord Justice Ward:	

22.	I agree.

Lord Justice Thomas:

23.	I also agree.