Secretary of State for the Home Department v S & K Croatia 
CG [2002] UKIAT 05613
(STARRED)
HX/65298/2000; HX/16389/2001; CC/12867/2001; HX43916/2001;
HX49818/2001
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 16 & 17 October 2002
Date Determination notified: 3 December 2002
Before
The President, The Hon. Mr Justice Collins
Mrs. J. Gleeson
Mr. S. Batiste
Between
SECRETARY OF STATE FOR THE HOME
DEPARTMENT
|
APPELLANT |
and
|
|
| S & K |
RESPONDENT |
For the Appellant: Mr. Sean Wilken Mr. Andrew Robb
For the Respondent : Mr. Nicholas Blake Q.C. Mr. Mark Mullins
DETERMINATION AND REASONS
- In S and Others (01 TH 00632) the Tribunal
had, following consideration of 8 appeals which were heard together, produced
a determination which was intended to be :-
"an authoritative decision as to what the current situation is
to enable consistent results to be achieved because the tribunal has been
able to consider all relevant evidence".
That determination was dated 1 May 2001. The 'current situation' in
question was that in Croatia as it affected ethnic Serbs who claimed that to
return them to Croatia would be contrary to the United Kingdom's obligations
under the Refugee Convention. The tribunal had had before it all relevant
material and had in addition had the advantage of listening to oral evidence
from two acknowledged experts, Dr. Gow and Judge Karphammer. It concluded
that, despite the genuiness of the expressed fears and the fact that there
would be considerable hardship on return, the situation did not support the
contention that there was a real risk of persecution. Accordingly, the
tribunal decided that unless the situation worsened or there were special
circumstances affecting an individual claimant, ethnic Serbs would not be able
to establish that they were entitled to asylum.
- Unfortunately, the tribunal had not specifically
referred to two reports which had been submitted after the hearing as part of
submissions which the tribunal had permitted to be made in writing. This led
to leave to appeal being given and to the appeal being allowed. The Court of
Appeal's decision was given on 24 April 2002. It discussed what it labelled to
be the 'exotic' concept of a factual precedent at some length but concluded
that in the context of the I.A.T.'s responsibilities it was in principle
benign and practical. In reality, the tribunal did not consider that it was
breaking any new ground. In all asylum claims it has to consider the situation
in the relevant country of nationality as at the date of the hearing. That
involves an assessment of all available evidence about that situation. In an
adversarial process, it is inevitable that in some cases the tribunal (or an
adjudicator who has to deal with the appeal before him in a similar way) will
not have seen all relevant material and so may not be able to form a properly
balanced view. This leads to inconsistent decisions in relation to the same
country and that is clearly not only undesirable but in some instances
positively unfair. Furthermore, it leads to unnecessary appeals and expense.
.
- The Court has in Paragraphs 29 to 32 of its judgment
explained what should be the approach of the tribunal in undertaking such an
exercise to its determination and in particular to the giving of reasons. It
explains how the tribunal erred in that case. We should set out those
paragraphs in full.
"29. But if the conception of a factual precedent has utility in
the context of the I.A.T.'s duty, there must be safeguards. A principal
safeguard will lie in the application of the duty to give reasons with
particular rigour. We do not mean to say that the I.A.T. will have to deal
literally with every point canvassed in evidence or argument; that would be
artificial and disproportionate. But when it determines to produce an
authoritative ruling upon the state of affairs in any given territory it
must in our view take special care to see that its decision is effectively
comprehensive. It should address all the issues in the case capable of
having a real as opposed to fanciful bearing on the result, and explain what
it makes of the substantial evidence going on the result, and explain what
it makes of the substantial evidence going to each such issue. In this field
opinion evidence will often or usually be very important, since assessment
of the risk of persecutory treatment in the milieu of a perhaps unstable
political situation may be a complex and difficult task in which the
fact-finding tribunal is bound to place heavy reliance on the views of
experts and specialists. We recognise of course that the I.A.T. will often
be faced with testimony which is trivial or repetitive. Plainly it is not
only unnecessary but positively undesirable that it should plough through
material of that kind on the face of its determination.
30. It may be thought that this approach is not far distant from
the way in which the I.A.T. generally discharges its duty to give reasons,
and not only in cases where it resolves to produce an authoritative
determination as to the position in a particular country. Indeed we do not
mean to suggest that in this latter class of case the I.A.T.'s duty is of an
altogether different quality. The experienced members of the I.A.T., not
least if we may say so its President and Deputy President, will we are sure
have no difficulty in gauging the quality of the reasons given so as to
ensure that these authoritative determinations will be, and will be seen to
be, effectively comprehensive.
31. In the present case the SR reports constituted substantial
recent opinion evidence from an important source. While, as Mr. Blake
acknowledged, they may not have uncovered new or otherwise unknown primary
facts, they presented a relative gloomy picture on a series of important
issues – so-called secret lists, arrests, detentions, prosecutions, the
conduct of the police and judiciary, and to some extent discrimination in
economic treatment and the distribution of property rights – which is in our
judgment significantly at variance with the much more upbeat impression
given by the OSCE. Having regard to all the points made by Mr. Wilken the
difference is not perhaps as stark as Mr. Blake would have us accept,
particularly in relation to such matters as the numbers still facing
outstanding prosecutions. The SR reports, however, convey the suggestion
that whatever the good intentions at the level of the State political
leadership, there remain problems, even growing problems, at the local
level: see for example paragraphs 41, 46 and 53 of the first report. In the
circumstances we entertain no doubt but that, if the I.A.T.'s duty to give
reasons in a determination of this kind is of the nature and quality we have
sought to describe, its failure to explain what it made of the SR reports
means that the duty has not been fulfilled. The position is the more stark
given the I.A.T.'s own observations at paragraph 25 of the S determination,
"[s]ince the situation is somewhat fluid and improvements are undoubtedly
occurring, it is necessary to look particularly at the most recent
reports".
32. Accordingly we allow these appeals, and remit all these
cases to the I.A.T. to be re-determined. There will be a question what form
the re-determination should take. That will be a matter for the I.A.T. It
may be that a full re-hearing will not be necessary. We have heard no
argument as to the scope of the I.A.T.' s procedural powers, and we make no
ruling or finding on the question".
- We confess to some concern that what is said in
Paragraph 29 should be used to justify reasons challenges when every piece of
evidence which could bear on the result is not specifically mentioned. Apart
from the failure to refer to the two reports, we do not understand the balance
of the determination to have been criticised. What we did then and shall do in
this case is to summarise the relevant material, to refer to the important
reports which give the various different slants and to reach our conclusions.
We shall not specify each document which has been put before us. That we do
not regard as necessary; the parties know what we have had, have put in
detailed written submissions and in oral argument referred to those reports
and the passages in them upon which they wish to rely and will be able to
decide whether our summary is a proper distillation of the various matters
which have been relied on. We are sure that the court did not require us to do
more than that. However, we do recognise the need for a comprehensive decision
and one which shows we have had regard to all relevant evidence.
- We note but respectfully are unable to accept the
view of the court of the importance of opinion evidence. The tribunal is
accustomed to being served with reports of experts. We have to say that many
have their own points of view which their reports seek to justify. The whole
point of the country reports is to bring together all relevant material. From
them, the tribunal will reach its own conclusions about the situation in the
country and then will see whether the facts found in relation to the
individual before it establish to the required standard a real risk of
persecution or of treatment which breaches his or her human rights. Further,
the tribunal builds up its own expertise in relation to the limited number of
countries from which asylum seekers come. Naturally, an expert's report can
assist, but we do not accept that heavy reliance is or should be placed upon
such reports. All will depend on the nature of the report and the particular
expert. Furthermore, it is rare for such experts to be called to give evidence
or for their views to be tested. We were fortunate in S to have had
called before us two experts who were truly knowledgeable and who had no
particular axes to grind. We have reports from experts in the present case
which we shall of course take into account and we will decide what weight
should be accorded to their views.
- We are not sure how we would have approached our
task if we had reconsidered the cases of which S was the lead. We had
concluded that there was no real risk of persecution, but had not specifically
referred to the reports which, it was argued, might have affected our
decision. However, in Lazarevic a differently constituted tribunal
under the chairmanship of the Deputy President did consider our decision and
the two reports. It decided and gave valid reasons for its decision that the
conclusion reached in S was correct. We have no reason to dissent from
that decision. Indeed, we approve it. It is difficult to imagine that we would
have reached any other conclusion. But S and the cases decided with it
were all concerned only with asylum since the decisions appealed against were
all made before 2 October 2000. Thus human rights would not be considered: see
Pardeepan. This meant that all the cases would in all probability be
the subject of subsequent appeals if (as seemed likely) claims based on
Article 3 or any other of the Articles of the European Convention on Human
Rights were rejected. Accordingly, it was decided that it would be more
sensible to consider the question whether ethnic Serbs could properly be
returned on both asylum and human rights grounds and so to choose a number of
cases in which the decisions appealed against were made after 2 October 2000.
This we have done. We therefore have looked at the evidence to decide whether
now there is a real risk of a breach of either Convention if returns are made.
Inevitably, we shall rely on our conclusions in S insofar as the Court
of Appeal has not criticised them. But we must see whether the evidence before
us shows that now, some 18 months later, there is an impediment to return.
- We have heard 5 cases together so that all factual
situations which are likely to recur and to be relied on in other appeals can
be considered. 3 (including this one) are appeals by the Secretary of State
and 2 by the individual. We shall for convenience refer to all individuals as
claimants. We shall set out in this determination our general conclusions and
our analysis of the material relating to the situation in Croatia and shall
incorporate those in the individual determinations which we must make so that
appeal rights are properly preserved and proper consideration is given to any
matter affecting an individual claimant which may not have been dealt with in
the general conclusions.
- We should identify those other cases and the
representatives in the various appeals. In this appeal as in all the Secretary
of State is represented by Mr. Sean Wilken and Mr. Andrew Robb of counsel
instructed by the Treasury Solicitor. Mr. Nicholas Blake Q.C. and Mr. Mark
Mullins of counsel instructed by Messrs Sutovic and Hartigan have represented
the claimant SK. The other appeals are as follows:-
1. NT (HX/16389/2001). This is an appeal by the claimant
represented by Mr. John Livingston of counsel instructed by J Andrews,
solicitor.
2. MM(CC/12867/2001). This is an appeal by the Secretary of
State. In it and in all the other appeals the representation is as in
SK.
3. NK (HX/43916/2001). This is an appeal by the Secretary of
State .
4.ZM (HX/49818/2001). This is an appeal by the
claimant.
- In one case only, that of NT, an issue of
credibility might have arisen. He had stated that he had received threatening
telephone calls and had identified the caller as the local police commander.
He did not mention that until after his asylum interview and the adjudicator
rejected his explanation that he had mentioned it but the interpreter had
failed to do his job properly. However, the adjudicator accepted that he had
received threatening calls and it was acknowledged that this dispute would not
affect the overall claim. Mr. Wilken did not seek to rely on the possible
credibility issue and he was and we are content to approach all these cases on
the basis that no relevant issue of credibility arises.
- We dealt with the background and the relevant
history in S and see no reason to add to the length of this
determination by repeating what we there said. We also explained how we should
approach our task of deciding whether persecution within the meaning of the
Refugee Convention had been established with particular reference to
Horvath [2000] 3 WLR 379. We have also considered whether the more
recent decision of the Court of Appeal in Svazas v SSHD [2002] EWCA Civ 74 makes any difference. While the State does not approve the
discrimination and has taken measures to try to prevent it, it is officials at
a lower level who are to an extent frustrating the State's intentions. We are
not here concerned with active ill-treatment by such as the police: indeed, it
is clear that the police do represent the ethnic mix in that there are a
number of Serb officers roughly corresponding to the numbers in the population
of the relevant area. In the context of a case such as this where officials
are said to be at least in part responsible for producing the persecution or
breaches of human rights, a more rigorous approach may be needed. We have
concluded that the threshold of persecution or of breaches of human rights is
not crossed and that in general there is a sufficiency of protection. The same
matters, with one exception, are relied on in these cases as were relied on in
S to constitute either persecution or contravention of the claimant's
human rights. They are, putting them broadly, physical violence, hostility and
discrimination based on ethnicity. Their homes in Croatia have either been
destroyed or taken over by Croats or any tenancy rights which they may have
had have been removed. They have lost and cannot regain employment. There is
chronic unemployment and economic hardship but the Serbs are at the bottom of
the heap. The present regime has failed to recognise and so to 'convalidate'
their pension rights which should have continued to accrue while the Serbs
were in control. While it is recognised and to an extent accepted that central
government is trying to uphold minority rights and encourage the return of
ethnic Serbs who had fled Croatia and who for good reason failed to return
while the HDZ under Tudjman was in control, it is contended that the
government's instructions are being frustrated at local level by continuing
discrimination, by judicial and bureaucratic incompetence and failures and by
unwillingness or inability to remedy the situation. In addition, and this is
particularly relevant in the case of MM, there is, it is said, a real risk
that prosecutions for alleged war crimes will be pursued on the basis of
collective responsibility notwithstanding that individuals cannot themselves
be proved to have done anything which could properly be regarded as a war
crime. The one matter not pursued is the assertion made in S that there
would be a requirement to do military service and the conditions of such
service would result in persecution.
- Mr. Blake's submissions which were adopted by Mr.
Livingston can be summarised as follows. The claimant fled ethnic cleansing,
some discrimination, harassment and lack of protection. At the time Tudjman
was in power ethnic cleansing was government policy and the steps taken to
achieve it by forcing Serbs to leave and not to return amounted to persecution
or at the least a breach of human rights. Thus they would have succeeded had
their claims been considered then. They have lost all that they had in Croatia
– homes, jobs, economic security, social position – and there is, because of
discrimination and a failure to implement the expressed intentions of the
government, no real prospect of improvement. This constitutes degrading
treatment. Further, a sustained breach of core human rights can and does in
the circumstances of these claims amount to persecution. While it is accepted
that generally speaking if persecution is not established Article 3 would be
unlikely to be breached, it is said that where degrading treatment is relied
on it is possible that Article 3 could be contravened even if the treatment
could not be said to amount to persecution. Nonetheless, it is clear that
persecution and breach of Article 3 do usually stand or fall together. So much
was accepted by Mr. Blake and is supported by the tribunal decision in
Kacaj [2002] Imm A R 213.
- Since we have to decide whether there is now a
real risk of persecution, it is obvious that the more recent reports and
forecasts are most relevant. But we cannot ignore the historical background
and evidence as to how the situation has developed over the months since
Tudjman's death and the election of the new regime in early 2000 is clearly
relevant. We sought in S to draw a line at the date of that
determination in the spring of 2001. We decided that those claimants had not
established a real risk of persecution. We relied particularly on the latest
full report from the Organisation for Security and Co-operation in Europe
(OSCE) of March 2001. It was said that this painted too optimistic a picture
and that was the burden of the expert evidence from Dr. Gow and Judge
Karphammer. We have been criticised for that. Thus we find Mr. Misha Glenny in
the course of an interview carried out in October 2001, which was put before
us as an expert's report, expressing his 'astonishment' that we should have
failed to follow the views of Judge Karphammer and Dr. Gow. We do not doubt
Mr. Glenny's expertise or his right to criticise us, but we are satisfied that
our reasons for concluding as we did stand up and have not been shown to be
wrong by anything put before us in these cases.
- It is said that we were wrong to express doubts
about the existence of 'hidden and secret lists of alleged war criminals'. A
bulky list has been produced before us downloaded from the internet. But, as
Dr. Gow recognises, its provenance is unproven and there is indeed no evidence
that it is approved by the government or by anyone who might be able to
institute proceedings. Dr. Gow's assertion that 'it seems reasonable to assume
it may be authoritative' we cannot accept: he gives no satisfactory reason for
that assertion. We shall have to return to the war crimes question in more
detail later in our general considerations and more particularly in MMs case.
- Mr. Blake persuaded the Court of Appeal in
S that specific reference to and consideration of two reports from the
Special Rapporteur of the UN Commission on Human Rights (the SR Reports) was
needed because they might have affected our considerations. These did on their
face paint a somewhat more gloomy picture than that disclosed in the OSCE
report. We had (and have in these cases) to form a judgment based on all the
material, both historical and recent. We now recognise that we should have
referred specifically to those reports. But the tribunal did just that in
Lazarevic. Since we did have those reports before us and our error lay
in not referring specifically to them and since another division of the
tribunal had regard to them and explained why they made no difference to the
result, we see no reason to modify our conclusions. But that does not mean we
automatically decide that the claims are not established unless there has been
a worsening of the situation since the spring of 2001. We have to consider all
the material before us and put it into the historical context. Nonetheless, we
are inevitably and in our view properly influenced by the conclusions reached
in S. We have too to bear in mind that the argument deployed by Mr.
Blake may go beyond those put before us in S.
- Not surprisingly, greater emphasis has been placed
on the human rights claims. While it is recognised that Article 14 is not free
standing, it is submitted that discrimination may amount to conduct which is
intended to and does arouse in the victim a feeling of fear, anguish or
inferiority and so humiliates and degrades him. Thus the circumstances of the
individual have to be considered and there is no universal standard
applicable. Support for this approach is said to be found in the decision of
the European Commission on Human Rights in the East African Asians
case(1973) 3 E.H.R.R. 76. At Paragraphs 207 and 208 this was said:-
"207. The Commission has stated … that the legislation applied
in the present cases discriminated against the applicants on the grounds of
their colour or race. It has also confirmed the view, which it expressed at
the admissibility stage, that discrimination based on race could, in certain
circumstances, of itself amount to degrading treatment …
The Commission recalls in this connection that, as generally
recognised, a special importance should be attached to discrimination based
on race; that publicity to single out a group of persons for different
treatment on the basis of race might, in certain circumstances, constitute a
special form of affront to human dignity; and that differential treatment of
a group of persons on the basis of race might therefore be capable of
constituting degrading treatment when differential treatment on some other
ground would raise no such question.
208. The Commission considers that the racial discrimination, to
which the applicants have been publicly subjected by the application of the
… immigration legislation, constitutes an interference with their human
dignity which, in the special circumstances described above [viz: that the
provisions deliberately treated Asians because of their race less favourably
than whites who might have been forced to leave Uganda following Idi Amin's
actions] amounted to 'degrading treatment' in the sense of Article 3
…"
- Mr. Wilken suggests that it is an old case which
has not been and should not be followed. Not so, submits Mr. Blake, relying on
Cyprus v Turkey (ECtHR: 10 May 2001). He relies particularly on
Paragraphs 304 to 306 of the judgment. We do not need to set them out here;
suffice it to record that the Court referred to without criticising the
Commission's observations in the East African Asians case and noted:-
"Regardless of recent improvements in this situation, the
hardships to which the enclaved Greek Cypriots were subjected during the
period under consideration still affected their daily lives and attained a
level of severity which constituted an affront to their human
dignity".
In Paragraph 307, the Court notes a UN report that the Greek Cypriots in
question "were the object of very severe restrictions which curtailed the
exercise of basic freedoms and had the effect of ensuring that, inexorably,
with the passage of time, the community would cease to exist".
It concluded (Paragraph 309):-
"The conditions under which that population is condemned to live
are debasing and violate the very notion of respect for the human dignity of
its members".
- We do not doubt that discrimination on the ground
of race is a factor that should be taken into account in deciding whether a
breach of Article 3 has been established. It may in some circumstances tip the
balance. In Cyprus v Turkey the conditions of the enclaved Greek
Cypriots was such as to breach Article 3 and the discrimination on racial
grounds was the motive. The Court did not suggest that merely to discriminate
on racial grounds would have sufficed to breach Article 3: the effect of the
discrimination and its purpose are important. In both East African
Asians and Cyprus v Turkey, the racial discrimination was
government policy intended to achieve a result which was degrading to the
victims. While we accept that an intention to degrade is not necessary and
treatment which in fact degrades will constitute a breach (see Pretty v
United Kingdom at Paragraphs 52 and 53), its absence will be relevant in
forming an overall view. Thus here the treatment in issue is the removal by
the United Kingdom to Croatia in circumstances where it is said there is a
real risk of degrading treatment. The knowledge that the government opposes
such discrimination and is taking measures to try to prevent it is clearly a
most relevant factor. It would be very different if return were in issue when
the Tudjman regime was in power and ethnic cleansing was the policy. We have
to consider whether notwithstanding the government's measures the treatment
which the claimants will receive does mean there is a real risk that there
will be a breach of Article 3. That some will discriminate despite government
policy to the contrary is not sufficient: it must be shown that that there
will be a real risk that whatever is done amounts to degrading treatment.
Hence there are the references in East African Asians to the particular
circumstances and in Cyprus v Turkey to the actual conditions faced by
the enclaved Greek Cypriots.
- Reliance is also placed on Article 8. The concept
of 'private life' covers both physical and psychological integrity of a
person. In Pretty the Court states that the 'notion of personal
autonomy is, an important principle underlying the interpretation of [the
Convention] guarantees'. Restrictions which adversely affect the quality of a
person's life can produce a breach of Article 8.
- Before going further, we should deal with a
problem which arises because of the provisions of s.77 (3) and (4) of the
Immigration and Asylum Act 1999. These read:-
"(3) In considering –
(a) any ground mentioned in s.69, or
(b) any question relating to the appellants' rights under
Article 3 of the Human Rights Convention
the appellate authority may take into account any evidence which
it considers to be relevant to the appeal (including evidence about matters
arising after the date on which the decision appealed against was
taken).
(4) In considering any other ground, the appellate authority may
take into account only evidence –
(a) which was available to the Secretary of State at the time
when the decision appealed against was taken; or
(b) which relates to relevant facts at that date".
Those provisions may seem to require that a different approach is taken to
Article 3 from the other Articles. This could lead to absurd results. It may
be, to give perhaps a somewhat extreme example, that the appellate authority
is persuaded that at the time of the Secretary of State's decision there would
have been a breach of Article 3. This would mean almost inevitably that there
was then a breach of Article 8. At the date of the hearing there had been a
fundamental change of circumstances in the country of nationality and so there
was no breach of Article 3 or of Article 8. Would the appellate authority be
excluded from considering the change of circumstances and thus have to find a
breach of Article 8? The absurdity is obvious, and it can work in the opposite
direction. We have had put before us a decision of Ouseley J R(Nyakonya) v
I.A.T. [2002]EWHC 1437 (QB) in which he gave a very wide interpretation of
'evidence' within s.77(4)(b). This is helpful, but still may necessitate in an
individual case an examination which may be difficult and involve an element
of logic chopping. It also does not easily deal with cases where it is said
that family life has been established in the United Kingdom (perhaps because
of delays following the decision under appeal) and so Article 8 would be
breached by a return.
- We do not think such refinements are needed. It is
the intention of the 1999 Act reflected in ss. 74 to 77 under the heading
"'One-stop' procedure" that all issues relevant to return ought to be dealt
with at one hearing. It is accepted that the safety of return must be judged
at the time of the hearing. That is obviously sensible because otherwise there
would be likely to be a flood of fresh claims based on alleged changes of
circumstances since the original decision. It reflects, in the asylum context,
the decision of the Court of Appeal in Ravichandran [1996] Imm AR 97
and gives it statutory approval. It was said in Ravichandran that the
appellate authority was an extension of the decision-making process. With that
observation we must quarrel since it may seem to suggest that the appellate
authority is somehow to be regarded as being part of the administrative
process. It is not. It is an independent body hearing an appeal against a
decision but bound to test that decision against facts found by it at the date
of the hearing. Unless withdrawn, the decision under appeal is to be regarded
as being maintained at the date of the hearing.
- Section 6 of the Human Rights Act 1998 requires
the appellate authority as a public authority (see s.6(3)(a)) to act in a way
which is compatible with a convention right. This obligation does not apply if
"as the result of one or more provisions of primary legislation, the authority
could not have acted differently" (s.6(2)(a)). Section 3 of the 1998 Act
requires us to read and give effect to legislation so far as possible in a way
which is compatible with the Convention rights. To make a determination which
upholds a decision to return in breach of human rights could, subject to the
impact of primary legislation, breach section 6. It is important to note the
language of and relationship between s.77(3) and (4). In s.77(3) a distinction
is drawn between a 'ground mentioned in s.69' and a question relating to
rights under Article 3. S.77(4) refers to consideration of 'any other ground'
not to consideration of other questions arising. The differences in wording
must be taken to have been deliberate. We are well aware that the Home Office
view was (and the argument has been raised by Mr. Wilken in his skeleton but
not developed because of our decision in Kacaj) that only Article 3
could be relied on in removal cases. It is therefore not surprising that
Parliament should have wanted to leave the matter open, particularly in the
light of indications in Soering v United Kingdom (1989) 11 EHRR 439
that Article 6 certainly might be relied on in such cases. Parliament no doubt
recognised the absurdities and contradictions of its 'one-stop' policy which
would arise otherwise and it is incidentally to be noted that the matter is
put beyond doubt in the 2002 Act which has just been passed.
- In our judgment s.77(4) does not in appeals
concerned with potential removals from the United Kingdom prevent
consideration of any question relating to an appellant's rights under any
Article of the Human Rights Convention as at the date of hearing. Such a
question is not a ground within the meaning of s.77(4). The explicit reference
to Article 3 in s.77(3)(b) is explained by the concern to put beyond doubt the
need to consider Article 3 breaches as at the date of hearing. Since Chahal
v United Kingdom (1996) 23 E.H.R.R. 415 had made it clear that the United
Kingdom was bound to do just that it is not surprising that Parliament should
have decided to legislate in such a way as meant no argument could be raised
about it. This means that when human rights issues are raised no distinction
is drawn between Article 3 and any other Article and so the appellate
authority can comply with s.6 of the 1998 Act and effect is given to the
'one-stop' principle.
- Mr. Blake has argued that both in relation to
Article 3 and Article 8 the individual's circumstances must be considered.
Thus, it is submitted, those who had houses and jobs and will be returned to
neither will suffer more severely and so their quality of life will be
affected to a greater degree. We accept that an individual's circumstances can
be relevant. Thus, for example, a person who has learning difficulties or some
physical disability may suffer disproportionately because of his or her
condition. Nonetheless, there must be a threshold which is of general
application. Croatia has suffered the ravages of a fierce and bitter civil
war. Thus the mere fact that there will be return to hardship resulting from
that cannot produce a breach of human rights. The general situation must be
taken into account, as must what is generally accepted in the society in
question. Otherwise, the wealthy could claim merely because they had lost
more. But obviously if on return particular people are far worse off and so
are disproportionately affected by the general difficulties because of
discrimination, they may be able to establish a breach. But this will not be
because they had a reasonable standard and return to poverty and hardship. It
will be because they are unable to escape from such poverty and alleviate such
hardship because of the way in which they are treated.
- We must now turn to the factual situation and
consider whether, in the light of the approach we have set out, there is in
general a real risk that ethnic Serbs such as these claimants will suffer
persecution or breaches of their human rights. Before doing so, we should
identify the material before us. The parties were aware that these cases were
intended by the tribunal to establish the general position as at the date of
hearing and so to enable (subject to any special factors in individual cases
or to a deterioration or improvement of the situation in Croatia depending on
the tribunal's conclusion) adjudicators and subsequent tribunals to reach
consistent decisions. Thus they have between them endeavoured to and, so far
as we are aware, succeeded in putting before us all relevant material. In
addition to the various reports from the Home Office, UNHCR, OSCE, Human
Rights Watch, Amnesty, the U.S. State Department, the European Commission
against Racism and Intolerance (ECRI), various reports from NGOs both
international and local and from the Commission of the European Communities, a
report from Donald Anderson MP to Alice Mahon MP and a report from the
department for International Development (DFID), we have statements (or in the
case of Mr. Glenny, the record of an interview and a further statement) of
three experts, that is to say Dr. Milivojevic, Dr. Gow and Mr. Glenny. The
DFID report is expressly stated to reflect the views of the consultant, not
DFID. These are largely those of Professor Pajic. We have also seen a number
of press and television news reports and interviews and correspondence with
and from various individuals, such as the outgoing leader of the OSCE
(Ambassador Poncet) and his successor (Ambassador Semneby). We did not hear
any evidence from the experts and so their reports were not tested. We did not
consider that that exercise was necessary since the material before us enabled
us to form a judgment and to reach our conclusions without extending the
process. The views of the experts were of course taken into account and we
have weighed them in the context of all the evidence. We note the concerns of
the Secretary of State that they are appearing to some extent to enter the
arena by criticising our previous conclusions in S and so acting more
as advocates than experts. As we have already said, we accept that they are
entitled to criticise if their views remain that we were wrong and we do not
reject their opinions on that account. But theirs is but part of the large
volume of evidence before us and, although helpful and to be accorded due
respect, it cannot be determinative.
- Mr. Blake was constrained to leave the hearing
during the afternoon of the second day. We agreed that he should be entitled
to submit a written reply since it was agreed between the parties that the
claimants should open the appeals rather than the Secretary of State . But we
bear in mind that three of the appeals were by the Secretary of State and that
we had to be flexible in dealing with rights of reply and to try to ensure
that neither side was disadvantaged. So it was envisaged that the Secretary of
State might reply to Mr. Blake's written submissions to deal in particular
with any new matters raised. Messrs Sutovic and Hartigan have complained at
what was in fact put in by Mr. Wilken and submitted that it goes beyond a
legitimate response to the claimants' 'reply' and so should be ignored. This
is disputed by the Secretary of State. We of course accept that there must be
finality and we note that the Secretary of State through the Treasury
Solicitor has asked us to ignore the submissions rather than enter into
disputes about finality. We have read them. We are bound to say that we do not
think they add anything of significance to the submissions made by Mr. Wilken
orally and in writing before us. Certainly they raise nothing which has not
been dealt with by Mr. Blake or any other counsel. We are content in the
circumstances to act on the arguments made before us at the hearing and Mr.
Blake's reply. There was some additional material, namely a translation of the
application of Mirko Gravec to the ECtHR (the referral was in the papers
before us), production of proper copies of photographs of the state of the
houses of some of SK's family in the village in which he used to have a home
and a transcript of Scott Baker, J's judgment in R(Ahmadi) v Secretary of
State for the Home Department CO/3894/2002 of 11 September 2002. In that
case, at Paragraph 38 Scott Baker, J said:-
"What the case [Bensaid] does establish … is that Article
8 includes protection of the right to identity and personal development,
which includes the development of relationships with other human beings and
the outside world".
Ahmadi concerned the return to Germany of an Afghan family and in
particular the lawfulness of the certification by the Secretary of State that
their claim under the Human Rights Act was manifestly unfounded. Scott Baker,
J quashed the decision partly because of the evidence of the wife's mental
condition and the anticipated effect on it of removal to Germany for their
asylum and human rights claims to be considered here. It does not add anything
to the authorities to which we have already referred. We entirely accept that
the conditions to be faced on return can engage Article 8. The point in
Ahmadi was that the situation was not as the Secretary of State had
asserted it to be, but was far less satisfactory and so could impact adversely
on the family's and in particular the wife's mental health and well being.
- Following those digressions, we turn to our
assessment of the situation. The claimants recognise that unfair war crimes
trials are of less significance in these cases (with the exception of MM) and
that there is no sufficient evidence to suggest that in general there is a
real risk that returning Serbs will face unfair war crimes trials. There must
be some special factor to bring that concern into play. Similarly, as we have
already noted, military service and any problems said to stem from it are not
live issues. Those concessions mean that we need not go into those issues in
depth, although we shall have to deal with war crime trials in the context of
MM's case. The essential complaints common to all are :-
1. Discriminatory loss of homes and livelihood.
2. Discriminatory denial of social and economic rights in the
areas to which return is envisaged. No special efforts are being made to
redress the wrongs suffered and the help return to society.
3. Discriminatory denial of judicial assistance in reclaiming
homes occupied by Croats.
4. Loss of stability and security because of the prospect of a
marginalised and ostracise existence in largely ethnically cleansed country.
Only a small fraction of Serbs who used to live in Croatia now remain and
the majority are the elderly who have returned to die in their
homeland.
- There is a history of ethnic tensions in what is
now Croatia. Following the first multi-party elections in Croatia, the HDZ
under the leadership of Tudjman came to power in 1990. This was followed in
1991 by a declaration of independence which triggered war. Tudjman was
fiercely nationalistic, but initially his attempt to establish an independent
Croatia was unsuccessful and, following fighting, the part of Croatia in which
Serbs were in the majority was declared to be the Republic of Serbian Krajina
(RSK). In 1995, the Croatian forces captured what were then UN protected areas
(i.e. the bulk of the RSK) and expelled in all some 212,000 Serbs. In 1998,
some 50,000 more Serbs fled when eastern Slavonia (the only part of the RSK
left under UN control) was to be handed over to Croatia. The Tudjman regime
was maintaining a policy of ethnic cleansing and removal of Serbs. There was
great bitterness because of atrocities which had been committed by both sides,
but it was only the Serbs who were to be targeted and punished on the basis of
collective responsibility. Positive barriers were erected to prevent Serbs
from returning to their homes, from obtaining employment and from being able
to reintegrate into society. Furthermore, acts and threats of violence to
Serbs were commonplace and were not dealt with by the authorities,
particularly when they emanated from war veterans who were known as 'homeland
defenders' who were regarded as 'untouchable'.
- The Tudjman policies had led to a regime of
political and more significantly financial ostracism. Croatia needed support
to rebuild its economy and this was not forthcoming so long as its
discriminatory policies remained in being. It wished to join the EU. In
December 1999 Tudjman died. In February 2000 Mesic was elected President for 3
years and in Parliamentary elections the HDZ was soundly defeated. It is
accepted that the new government has made real efforts to overcome the legacy
of hatred and that positive steps have been taken in the form of legislation
and other actions to try to remove the obstacles to return and the
discrimination against ethnic minorities such as Serbs. However, there are
concerns that too little is being done and that the good intentions of central
government are being frustrated by the local officials who are supposed to
implement the policies and by delays in the political process coupled with
incompetence of or unwillingness to apply the laws in favour of Serbs by the
judiciary. Thus we find the January Human Rights Watch report stating:-
"President Stipe Mesic's government often failed to confront
entrenched ethnic Croat nationalists obstructing reform, particularly on
issues of impunity for war-time abuses and the return of Serb
refugees".
And later in the same report, it is said:-
"Obstacles to the return of Croatian Serb refugees remained a
significant human rights concern. Although by August 2001 over 100,000
Croatian Serbs had returned according to the UN High Commission for
Refugees, most were elderly. According to international organisations,
significant numbers of these refugees may have again departed for FRY or
Bosnia-Herzegovina after only a short stay in Croatia.
Human rights violations contributed to the reluctance of
refugees to return and to their renewed flight. While violent attacks on
Croatian Serbs continued to decrease in frequency, isolated serious
incidents contributed to apprehension about return. Croatian authorities
frequently condemned ethnically motivated attacks and opened investigations,
but arrests or judicial proceedings did not always follow".
So far as the last sentence is concerned, it is always dangerous to read
too much into particular incidents since arrests and judicial proceedings
require evidence and the absence of arrests may not mean that the
investigations were not carried out properly. Amnesty International in its
report of September 2002 noted:-
"Croatia continued to suffer the legacy of the 1991-1995 armed
conflict, particularly impunity for war crimes and other violations of human
rights. Significant progress was made in co-operation with ICTFY. The
domestic criminal system improved its record in investigating and
prosecuting war crimes committed by both Croats and Croatian Serbs, although
not all proceedings were conducted thoroughly and impartially. Return of the
country's pre-war Serb population continued to be marred by discriminatory
laws and political obstruction. Allegations that law enforcement officials
ill-treated detainees were not investigated promptly and
thoroughly".
- In September 2002, Ambassador Semneby made a
presentation on behalf of OSCE. In it, he noted the deficiencies that existed
in the protection available for returning Serbs. He said:-
"It appears that the majority of the Croatian Serb refugees in
FRY wish to remain there for various reasons including difficulties to
repossess private property, to receive adequate remedy for terminated
occupancy rights and to validate documents regarding pension rights. Still,
most surveys indicate that about 30% of Croatian Serb refugees in FRY wish
to return or would consider returning if conditions for their return were
more favourable".
After setting out the need to ensure that the necessary action was taken to
improve the situation, he noted:-
"Croatia's ambitious objective to become part of the
Euro-Atlantic community, which has been acknowledged through the signing of
an EU Stabilisation and Association Agreement (SAA) in October 2001 and the
announcement of a Membership Action Plan (MAP) with NATO in May 2002 has
underlined the necessity to urgently address several problems within the
Missions mandate.
As a consequence, the quality of the Government's dialogue with
the Mission and its international partners has improved in recent months,
but there is still a need to involve the international community earlier in
the decision-making process in order to ensure the quality of legislation
and other decisions. The Mission is an important instrument to help Croatia
in dealing with the many challenges it faces".
- In September 2002 Donald Anderson MP, visiting as
a NATO delegate, noted that doubts still remained about the sustainability of
returns because in many war affected areas hard line nationalists continued to
run local government and would frustrate any return policy. Even where local
government was favourable, the necessary infra-structure was lacking and
particular difficulties were created by the failure to enable Serbs to
repossess their properties. In November 2001 the UNHCR was concerned at the
lack of homes, the absence of proper repossession, the deprivation of tenancy
rights and economic restraints on returns. Nevertheless, returns are being
encouraged by UNHCR and a letter of 17 May 2002, while recognising the
existing difficulties, notes the Government's action in taking positive steps
to assist in reconstruction of damaged homes and its plans to render
assistance to those whose tenancy rights have been determined. This is
criticised as jam tomorrow, but does show that genuine efforts are being made,
albeit they may not yet have borne much fruit.
- In May 2002 OSCE issued its status report. It
noted that property repossession remained at the core of the return process.
In December 2001 the government had presented an Action Plan to return 19,000
properties by the end of 2002: some 10,557 had by May been returned. But the
Plan does not cover all properties affected and there is opposition preventing
further extensions of the Plan. Loss of tenancy rights is not covered, but
there are some encouraging signs. Thus it is noted (p.16 of the Report):-
"In December 2001, after consultations with representatives of
the international community, the Government stated that a proposal for a
comprehensive solution to this issue would be prepared, but such a proposal
has not yet materialised. …. Public comments by President Mesic in February
2002, acknowledging that circumstances during the conflict provided
reasonable grounds for Serbs to depart in fear for their physical safety,
suggest that the climate for addressing this issue is improving".
And in relation to reconstruction, it noted that in late 2001 the
Government, supported by UNHCR, 'for the first time encouraged and promoted
the conditions for filing reconstruction applications to Serb refugees in the
place of asylum".
- Reliance has been placed on interviews with
Ambassador Poncet in July and December 2001 which are said to confirm that the
OSCE report of March 2001 was too optimistic. He was asked:-
"Although no particular progress has been achieved in the … of
repossession of property, it seems that … has to admit that the political
climate has significantly changed, after all. Do you agree?
He replied:-
"Yes, I agree, the tension has considerably decreased, and it is
easier to establish dialogue, even with the people from HDZ. There is less
nationalism and more realism. Politically, the situation is gradually
changing and people are more focussed on the future, than on the
past".
In December, he said 'truly commendable progress has been made in the last
year and a half' in relation to co-oporation with OSCE. But he was saddened by
the failure to pass a new law on the Rights and protection of Minorities and
to enforce judgments properly. But he was encouraged by public discussions on
occupancy rights.
- We have, we hope, cited enough to identify the
real difficulties and discrimination that undoubtedly face Serbs if returned.
The government has the right intentions but is still being frustrated at lower
levels. However, the government is undoubtedly taking steps to improve the
situation and in June 2002 the UNHCR/Stability Pact for South Croatian Europe
under the heading 'Return Programme of the Government of Croatia' states:-
"UNHCR continues to support directly the return Programme of the
Government of Croatia, accepting and assisting with the processing of return
applications. The total number of applications to the Office for Displaced
Persons and Refugees (ODPR) procedure from the start of the Return Programme
in June 1998 until mid-May 2002 stands at 6,908 while 3,921 persons have
returned thus far. Those numbers do not include returns occurring
spontaneously outside of the Return Procedures. Currently, there are 1,173
cases where the procedure has not been completed or is pending clearance,
and of these 451 cases have been deferred for lack of records …"
While these numbers are small in the context of the total of Serbs who
fled, it is clear that the UNHCR is still encouraging return. And later in the
same report it notes that the government of Croatia has 'agreed to accept all
persons who sign a waiver that they will accept collective accommodation if
their housing is not habitable or if there is no host who will accept them. In
particular, the Government of Croatia indicated that it would prioritise
Croatian Serbs being evicted from B.H. (Bosnia-Herzegovina) for return and
provision of accommodation'. It is further noted that the Croatian Government
had 'undertaken to assist returnees in their reintegration by providing a
basic assistance depending on monthly income for a six-month period following
confirmed returnee status, although in practice, a lack of funds has caused
delays. The assistance includes cash grants, medical coverage and other legal
and social benefits'. It may be said with some force that the situation on the
ground is not so satisfactory since there are bureaucratic delays and
obstructions because of local officials' reluctance to follow the Government's
lead. We recognise that, but remain of the view that, whatever the pressures
on it and notwithstanding its obvious concern to cease to have to be concerned
to assist those who would otherwise be refugees, the UNHCR would not encourage
return if persuaded that there would be persecution contrary to the Refugee
Convention or, indeed, treatment contrary to Article 3 of the European
Convention on Human Rights.
- We are well aware that there are concerns that the
numbers of returnees have been exaggerated and that many who returned have
left again. Equally, those who have remained are said in the main to be the
elderly. We note, too, that the percentage of ethnic Serbs in the population
has reduced from about 12% to nearer 4%. This means that they now represent no
threat to the majority but an increase in numbers may be regarded differently.
We note that the figures show that the majority apparently are unwilling to
return, preferring to remain in FRY or elsewhere and seeing their future
there. The numbers in the United Kingdom likely to be affected by our decision
are relatively small. We recognise that those who are prejudiced against
fellow human beings on grounds of race or ethnicity may be stirred to react if
they fear that an increase in the numbers will threaten them. We have to an
extent seen this phenomenon in the United Kingdom where an increase in
immigrants can lead to support for nationalist policies and even to violence.
Even where the government pursues vigorous anti-discrimination policies and
the forces of law and order are prepared to provide protection, it is not
possible to guarantee that there will be no discriminatory acts or even
violence. But that does not mean that there is a real risk of a breach of
Convention obligations. It is a question of judgment and we have regard to the
high threshold which must be applied as the ECtHR has recognised in Bensaid
v United Kingdom (2001) 33 E.H.R.R. 208 and to the 'rigorous scrutiny'
needed where the ill-treatment will be contrary to government policy and from
non-state actors. It is we think worth citing Paragraph 40 where the court
said:-
"The Court accepts the seriousness of the applicant's medical
condition. Having regard however to the high threshold set by Article 3,
particularly where the case does not concern the direct responsibility of
the Contracting State for the infliction of harm, the Court does not find
that there is a sufficiently real risk that the applicant's removal in these
circumstances would be contrary to the standards of Article 3. It does not
disclose the exceptional circumstances of the D case [D v United Kingdom
(1997) 24 EHRR 423] where the applicant was in the final stages of a
terminal illness, AIDS, and had no prospect of medical care or family
support on expulsion to St. Kitts".
- Considerable reliance has been placed on the DFID
draft report based on visits to Croatia in the summer of 2001. It notes that
the police are being reformed and the penal system appears satisfactory but
that:-
"there are considerable problems on the provision of and access
to justice especially for the minorities … and in relation to the return of
refugees".
Discriminatory practices in relation to housing and war crimes are said to
have put returning Serbs at risk and to raise the possibility of future
inter-ethnic conflict 'and to create the most significant major barrier to
regional stability and the successful integration of Croatia into Western
structures'. It is said that Croatia has 'the worst record on integration of
refugees and displaced persons. There is a clear ethnic bias against
non-Croats'. There follows reference to the problems faced by Serbs to which
we have already referred and to the failure by the Office of Displaced Persons
(ODPR) set up by the Government of Croatia to act in an even-handed manner and
its persistence in discriminating against non-Croats. All this we recognise,
but it is now somewhat out of date. The government has clearly recognised the
importance for Croatia of economic ties with the EU. There has been greater
co-operation with ICTY and the concern about that which was expected by some
to result in the fall of the present government in July 2002 have not provoked
that result. We find in the OSCE fortnightly report of 25 September to 8
October 2002 reference to President Mesic's testimony at the Milosevic trial.
Croats have been handed over to face trial on charges of crimes against Serbs
and the weekly report, having noted the considerable public interests in the
President's testimony which was carried live and watched by as much as 40% of
the population according to one opinion poll, concluded:-
"More than half of the viewers believe the President's
appearance before the ICTY would improve the international standing of
Croatia, arguing that it showed that Croatia believes in the rule of law and
takes its international commitments seriously".
The OSCE background report of 10 October 2002, while recording the support
for the decision to challenge the indictment against General Bobetko, notes
that the most recent polls indicate a shift of public opinion back to a
support for co-operation and compliance with Croatia's international
commitments. The opposition to General Bobetko's surrender to ICTY is based to
a greater extent on his age (he is now 83) and cannot in our view be regarded
as an indication of failure to co-operate generally with ICTY. It further
notes that public acknowledgements in the media by Croatian officials that
both sides committed war crimes have notably become more common. All this
gives some encouragement since it shows that there is recognition of the
importance to Croatia of integration into Western Europe and this is more
likely to result in greater acceptance of the need to show that discrimination
is being tackled.
- Local elections were held in May 2001. The HDZ
gained one third of the local regional assembly and council seats contested
nationally. This is said to show a resurgence of support for ultra-nationalist
policies including discrimination against Serbs. Thus we find Dr. Milivojevic
saying:-
"As things stand now … the high hopes of radical political
change and a possible rejection of the HDZ years engendered by the election
of a new government at the beginning of 2000 may prove to have been little
more than illusions about the supposed seizure of the HDZ and all that it
represents".
In his report of August 2002, he says that the 'powerful and quasi-criminal
wing' of the HDZ led by Ivic Pesalic has not been fully curbed by the new
leader. But there has been a significant change and there are signs that the
HDZ, although no doubt still nationalist and right wing, is not run by those
espousing the extremist policies of the Tudjman era. The majority of Croatians
will not want to return to the isolation and economic damage resulting from it
which the Tudjman policies produced and which similar policies would be likely
to produce. In addition, in some areas the HDZ has entered into arrangements
with other parties, including the SDS (the government party), to share power.
While the dangers of a resurgence of nationalism are apparent – the history of
this part of Europe cannot instil confidence that in the future there will be
no regression – we do not regard the increased support for the HDZ as it now
is with the same pessimism as is displayed by Dr. Milivojevic.
- The government of prime minister Racan has
survived despite the expectations that it would not. Dr. Gow refers to major
anti-government demonstrations in 2001. He concludes thus:-
"Regarding the status and conditions of ethnic Serbs in Croatia,
generally since the election in February 2000 of a new President with a new
approach, Mr. Stipe Mesic, there has been a marked change of emphasis in
Croatia at the government level in Zagreb. However, it clearly remains the
case that despite the top level change, the position for ethnic Serbs in
certain regions especially individuals who have served in the OS RSK, or
similar, cannot be guaranteed to be beneficial and free from acts that could
be deemed persecution. It is equally apparent that despite the best
intentions of President Mesic and of the government of Prime Minister Ivica
Racan, at the national level, the power of the nationalist HDZ remains
entrenched in many areas and, indeed, was reinforced and enhanced by results
in the May 2001 local elections, where the HDZ made gains. This may confirm
the impression that in relevant areas, the situation has deteriorated at a
time when generally there has been improvement in Croatia".
These views are entitled to be accorded considerable respect, but they seem
to us to be over pessimistic and to ignore the signs to which we have referred
which point in a more optimistic direction. Contrary to the views of at least
one tribunal, we do not regard the increased support for the HDZ in May 2001
(which incidentally, still represented a fall in support as against the
Tudjman years ) as showing a worsening of the situation since S was
decided.
- War crimes prosecutions we can deal with
relatively briefly having regard to the concession that unless there is a
particular reason to believe an individual will be prosecuted or (as in the
case of MM) has been prosecuted, they cannot be relied on as a barrier to
return. We should say that we are satisfied that the concession was rightly
made. It is, of course, proper that war criminals should be punished for
having committed crimes and there can be no doubt that both Serbs and Croats
have been guilty of such crimes. But such prosecutions must be based on proper
evidence and proof of individual responsibility. The OSCE and the UNHCR
closely monitor prosecutions and, in particular, if a returnee is arrested,
the UNHCR will 'very closely and thoroughly monitor the situation'. It notes
that' we found the trials have been very fair and correct in their procedure'.
The numbers do not suggest there are widespread prosecutions let alone an
implementation of the lists to which we have been referred. There has been an
amnesty, but that amnesty has not wiped out the conviction and so there remain
barriers to individual's employment prospects unless the conviction is
expunged. In November 2001, we find OSCE noting:-
"a positive trend in … decisions by County Prosecutors and
judges to reject war crimes and genocide charges against groups of Serbs due
to the lack of any evidence of individual crimes".
- Despite this, there remain some problems where
trials in absentia have been held. MM is an example, he having been sentenced
to 4 years imprisonment on the basis of charges which on their face cannot
properly be said to amount to conduct which can reasonably be regarded as
constituting a war crime. He manned a barricade and was, it was said,
offensive and threatening in a racist manner to Croats. An accelerated
procedure has been put into effect to ensure a reconsideration and if
necessary a re-trial of anyone convicted in absentia. But there may be a
remand in custody of usually no more than one or two months while the matter
is reconsidered. If it is clear that the case is too weak to be able to
succeed, release may be effected after a couple of days. Whatever may seem to
be the strength of the case from the information produced to us, we find it
impossible to say that there would be persecution or a breach of human rights
if the question whether there should be a re-trial is investigated properly
even if there may be a relatively short remand in custody while that is being
done.
- As will no doubt be apparent, we are satisfied
that there has been no worsening of the situation since we decided S
and in any event the material before us does not persuade us on the low
standard required that there is a real risk that in general Serbs if returned
to Croatia will suffer persecution or a breach of any Article of the European
Convention on Human Rights. We recognise that the situation is far from
pleasant and the deprivation and misery that will be faced. That stems from
the war and the destruction caused by it. But that by itself cannot mean that
surrogate protection is needed or that there will be a breach of human rights.
We regard the steps taken by the Croatian government, despite the difficulties
at local level and the obstacles that still undoubtedly exist, as sufficient
to provide the necessary protection. It follows that we accept the submissions
made by Mr. Wilken, set out in detail in his skeleton argument and more
particularly in Annex 2 to it. Even though there is discrimination coupled
with the difficulties particularly of housing, employment and convalidation to
which we have referred, we are satisfied that the threshold of Article 3, in
particular of degrading treatment, has not been crossed. Equally, although we
recognise that the Article 8 threshold is lower, we are not persuaded that it
has been crossed. But even if it has, we are satisfied that removal is
justified by a proper control of immigration.
- We must finally consider the circumstances of the
claim by SK. He arrived in the United Kingdom on a flight from Hungary with a
valid Croatian passport on 27 November 1997 and was given leave to enter as a
visitor for 6 months. On 22 January 1998 he claimed asylum, but was not
interviewed until 16 October 2000. On 24 November, his claim was rejected and
removal directions were made. His appeal was heard by an adjudicator on 1 May
2001. The adjudicator allowed his appeal on the basis that he had a
well-founded fear of persecution and faced a real risk of treatment contrary
to Article 3 of the European Convention on Human Rights. The Secretary of
State was given leave to appeal on the ground that the adjudicator had not
been able to consider S and, if he had, should have reached a different
conclusion.
- The claimant was born in Knin and lived there
until August 1995. Kuin was in the RSK. He was doing his military service in
the OS RSK when Operation Storm occurred and he then fled to Bosnia. He then
went to Serbia and came from there to the United Kingdom because, he said, he
feared that the Serb authorities would try to mobilise him for the impending
war in Kosovo. He had obtained Croatian documentation when the region of
Eastern Slovenia was Serb controlled under UN protection. The Secretary of
State in refusing his claim did not consider whether he could have remained in
safety in Serbia but rejected it on the basis that he would not by then suffer
persecution or a breach of his human rights if he returned to Croatia.
- SK's family had a house near Vrtika, a small town
near Knin, and a flat in Knin. The house in Vrtika was burnt down and the flat
in Knin was taken over by Croats. The family owned arable land at Podosje,
which is near Vrtika. All houses have, as the photographs show, been destroyed
and the village "turned into a rubbish dump". Although some family are now
living there, he would have nowhere to live and any scheme for living with
sympathetic families would founder for such lack of resources. His father has
applied for repossession of the Knin flat but so far no steps have been taken
by the Croat authorities in that direction.
- SK is now in full-time employment as a security
officer. He is living with a British citizen and she is expecting their baby
in February 2003. He has thus established a family life in this country and
return to Croatia would, unless his partner went with him, interfere with that
family life. So far as we are aware, that aspect has not yet been considered
by the Secretary of State. He could if returned seek an entry clearance on the
basis of that relationship. There is no doubt that he would if returned suffer
hardship and the situation for the partner, who would be uprooted from a
reasonable standard of living in the United Kingdom to what can only be
described as a miserable existence, would be harsh in the extreme. If
satisfied that the relationship is genuine and subsisting, the Secretary of
State will no doubt bear all this in mind in deciding whether to return the
claimant. We have to apply the approach of the Court of Appeal in
Mahmoud in deciding whether return would breach Article 8. The
establishment of a family life when a person's immigration position is
precarious will not usually justify a finding that Article 8 is breached since
application can be made from abroad and it is wrong to jump the queue. Thus we
are not prepared to make the primary decision; that must be done by the
Secretary of State . Nor do we think that it is appropriate for us to make a
specific recommendation in the absence of any consideration of the full
circumstances, which we cannot do since we only have his word at the moment
and the Secretary of State has not had an opportunity of investigating the
position.
- Despite the hardship that the claimant will
undoubtedly suffer resulting from the fighting in his country, he does not
show any special circumstances which mean that he can establish that he should
be given the benefit of either Convention. For the reasons which we have
given, therefore, we take the view that the adjudicator's conclusion was wrong
and this appeal must be allowed.
- This case has been starred but the starring only
relates to the consideration of s.77(4). Although it is intended to provide
the answer to claims by ethnic Serbs who seek to prevent their return to
Croatia, it is a decision based on fact and so cannot be starred. However,
unless the situation deteriorates to a significant extent or special
circumstances can be shown in an individual case, no ethnic Serb should be
able to establish a claim under either Convention.
Sir Andrew Collins
President
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