We can be short with the question of whether the appellant would be identified as of Ashkaelian or mixed ethnicity. Mr Walker initially sought to argue that the appellant would not be perceived as such. We find that he would. We do not have any evidence before us to help us with whether the appellant in physical terms looks Ashkaelian or of mixed Ashkaelian ethnicity. However, we think there is force in Mr Roebuck's submission, based on the appellant's and cousin's statements, that his way of speaking and acting, combined with the fact that he would be asked on return, both by officials and neighbours about his origins, would mean he would be, or would soon come to be, perceived as of mixed Ashkaelian ethnicity. We bear in mind the approach taken to the issue of identification of mixed ethnic origin in the case of a person of mixed Roma ethnicity from Kosovo in Hysi [2005] EWCA Civ 711 and the Court's observation at para 26 that:
All hinges in this appeal, therefore, on the issue of whether the appellant, as a person of Ashkaelian/Albanian mixed ethnicity would be at risk on return to Kosovo.
We turn first to consider existing Tribunal case law on this issue. There are several cases which furnish guidance of relevance to this case, in particular RB (Risk – Ethnicity – Gorani – Sanxhali) Kosovo CG [2004] UKIAT 00037 , FM (IFA – Mixed Marriage – Albanian – Ashkaelian) Kosovo CG [2004] UKIAT 00081 , AB (Ashkaelia) Serbia and Montenegro CG [2004] UKIAT 00188 and FD (Kosovo – Roma) Serbian and Montenegro CG [2004] UKIAT 00214 . However, since they build on each other over time, it is sufficient to focus below on the two most recent cases. The first is the Country Guideline case of FD . This case concerned a Kosovan whose father was a Roma and whose mother was a Serb. Having analysed a considerable number of background country materials the Tribunal concluded:
The Tribunal also gave separate and specific consideration to evidence about March 2004 outbreaks of inter-ethnic violence and to the UNHCR Position Paper of 30 March 2004. It concluded neither this evidence nor this UNHCR paper caused it to change its analysis of the situation.
The most recent case reported dealing with ethnic minorities is SK (Roma in Kosovo – update ) Serbia and Montenegro [2005] UKIAT 00023 . This case concerned a Roma from Kosovo. Although not designated as a country guidance case, the panel did review the extent to which FD remained valid as guidance. The panel looked at evidence which had come into existence since FD . That evidence included the August 2004 UNHCR Position Paper. At paragraph 16 it stated:
At paragraphs 23-27 the Tribunal turned to consider the principal points which it saw as emerging from the CIPU Bulletin of July 2004:
Before proceeding further, we note that although both FD and SK were concerned with Roma or persons of mixed Roma ethnicity, the analysis in both cases appeared to regard Roma, Ashkaelis and Egyptians (RAEs), including persons of mixed Ashkaelian ethnicity, as in much the same position. In general terms they considered that KFOR and the Kosovo Police Service (KPS) were together capable of affording protection in the event of any outbreaks of inter-ethnic violence such as that which erupted in March 2004. However, we now have before us a number of more recent reports. These cover the position of Roma as well as RAEs (Ashkaelian included) and persons of mixed ethnicity. It is important that any attempt to review the approach to risk categories adopted in previous Tribunal cases, takes these recent reports fully into account.
The Background Evidence
All the major reports seek to cover the position of the Ashkaelia, partly under the general category of Roma, partly under the category of "RAEs" and partly in specific terms.
The Home Office Country Information and Policy Unit (CIPU) Report: Serbia and Montenegro (Including Kosovo) April 2005, analyses the relative situation of Roma and Ashkaelia as follows:
CIPU Report April 2005
However, the report goes on to note that these points of difference are not always recognized by members of the Albanian majority community in Kosovo:
The CIPU report's specific section dealing with Ashkaelia states inter alia that:
The principal problem in recent times for Kosovo Roma, following the fall of Milosevic, has been the perception by Albanians Kosovans that Roma generally collaborated with Serb mistreatment of ethnic Albanians. The Home Office report notes at K.6.85 as follows:
Nevertheless, the report recognizes that there are significant variations in the perceptions of the majority population depending on the particular area, population and locality issues:
Although it does not set out its own treatment in chronological order, the Report sees the situation of RAE as properly being dealt with in terms of pre-March 2004, March 2004 and post-2004 timeframes.
The situation for ethnic minorities including Ashkaelia prior to March 2004
The report sums up the pre-March 2004 situation as follows:
The Report also recorded UNHCR's view that in the period between January 2003 and March 2004 the overall number of security incidents targeting minorities decreased:
The report also touches on certain other difficulties faced by Roma and Ashkaelia in the pre March 2004 period:
The Events of March 2004
The CIPU report also gives details of how the events of March 2004 affected the Ashkaelia in certain areas. It notes at K.4.17 that on 18 March:
At K.6.96 more detail is given as follows:
The Position of Ashkaelia post-March 2004
At K.5.72 the report goes on to describe the position for Ashkaelia several months later as follows:
Elsewhere the report had noted the UNHCR's position as follows:
The report also noted the latest US State Department report's findings:
US State Department Report 2005
Turning to examine this latter report - the U.S. Department of State Report 2005 (Country Reports on Human Rights Practices (2005) – for ourselves, we note that it deals, inter alia, with the issue of returnees to Kosovo from ethnic minorities (page 30).
The report also describes chequered progress in the construction of relocation facilities affecting Roma, Ashkaelian and Egyptian RAEs (page 30):
On the subject of political representation it notes (page 31):
On schooling it observes (page 33) :
On official and societal discrimination and living conditions, it says this (pages 37-38):
….
We next turn to the Human Rights Watch Report for 2005. In relation to the pre-March 2004 situation it states (page 6) that:
Events of March 2004
Most of the report, however, focusses on the events of March 2004 and their aftermath. At page 4 it states:
More detail is given at page 6:
At page 15 it expresses the view that the March 2004 violence was organised by ethnic extremists:
As well as highlighting the widespread attacks by ethnic Albanians on Serbs, Roma, Ashkaeli, Albanian-speaking Roma and other non-Albanian minorities, the report at page 12 expressed "equal concern" about " the near-collapse of the international security organizations in Kosovo when confronted by the violence and unrest of March 2004, and the inability of KFOR, UNMIK international police, and the local KPS to provide effective protection to Kosovo's minority communities during the two days of violence". It noted that "in nearby Vucitrn, located in between two main French KFOR camps, Albanian crowds burned sixty-nine Ashkaeli homes without a response from either French KFOR or international UNMIK police".
The overall role of the KPS was dealt with as follows:
The KPS role was also touched on at page 21:
The Situation Post-March 2004
In evaluating the situation post-March 2004, the Human Rights Watch 2005 report (at pages 34-35) expressed concerns about the displacement it had caused and the conditions being experienced by the displaced persons affected:
UNHCR Position Paper, March 2005
That brings us to the UNHCR Position on the Continued international Protection Needs of Individuals from Kosovo (UNHCR, March 2005). This is the latest UNHCR report placed before us. Its contents represent a modification of the position expressed in the August 2004 report. At D paragraphs 13 and 15 it gives the following summary:
At paragraph 16, under the heading 'Other Groups at Risk', it stated:
Persons in ethnically mixed marriages and persons of mixed ethnicity
Persons perceived to have been associated with the Serbian regime after 1990; and
Victims of trafficking.'
Also before us was the European Roma Rights Centre (ERRC) Report, "In the Aftermath of Ethnic Cleansing: Continued Persecution of Roma, Ashkaelis, Egyptians and Others Perceived as "Gypsies" in Kosovo (Memorandum of the European Roma Rights Centre, presented to the European Parliament on 27/06/05)". Its view is summarised at page 12 as follows:
The report later summarises what it describes as "some particularly extreme issues facing Roma, Ashkalis, Egyptians and others considered as "Gypsies" in Kosovo" as follows:
At page 8 the report describes the state of mind of RAE in Kosovo:
Pages 10-11 of the report evaluate the recent history of forced returns and make recommendations:
Prompt and impartial investigations into all acts of violence to which Romani, Ashkali and Egyptian individuals and other persons regarded as "Gypsies" in Kosovo have been subjected are carried out; all perpetrators of racially-motivated acts of ethnic cleansing are brought swiftly to justice and victims or families of victims receive adequate compensation; justice is done and seen to be done;
Individuals guilty of the persecution of Roma, Ashkalis, Egyptians and other persons regarded as "Gypsies" in Kosovo are swiftly brought to justice via the International Criminal Tribunal for the Former Yugoslavia, or through other mechanisms;
Sustained efforts are undertaken by all authorities in Kosovo and involved in the administration of Kosovo to ensure that no discussions of Kosovo's final status are embarked upon until such a time as all stakeholders achieve durable and lasting consensus in practice that Kosovo is a multi-cultural society in which all individuals can freely exercise in practice all of their fundamental human rights;
Any forced returns of Kosovo Romani, Ashkali or Egyptian individuals to Kosovo, or to the rest of Serbia and Montenegro are rendered impossible and impermissible until such a time as authorities in Kosovo are able to demonstrate durable and lasting security and freedom from racial discrimination for all in all parts of the province. "
Our Assessment
In view of the fact that the latest UNHCR report differentiates in places between the position faced by Roma on the one hand and (within the category of RAE) Ashkaelia on the other, we have decided that we should confine our assessment to the position of Ashkaelia and those of mixed Ashkaelian ethnicity. In this connection we should mention that we have seen a copy of a recent draft decision by a different senior panel dealing with Roma and persons in ethnically mixed Roma marriages. In our view, the issue of persons of mixed ethnicity on the one hand and persons of ethnically mixed marriages are distinct and it not our intention here to deal with the latter. We deal only with Ashkaelia and persons of mixed Ashkaelian ethnicity.
In assessing the background evidence, we should note that we have taken a similar approach to UNHCR reports as have previous panels. That is to say, we consider that we should attach very considerable weight to them, particularly bearing in mind the fact that these reports draw on the experiences of UNHCR officers working on the ground in Kosovo. Equally, however, we consider it important to repeat the same reservations as were stated in para 54 of FD regarding the UNHCR's own formulation of risk categories. It continues to be the case that UNHCR reports and position papers on Kosovo frame risk categories according to a category of "(international) protection" which is broader in scope than arises under either the Refugee Convention or the European Convention on Human Rights. We would accept that, in certain sentences, the advice does clearly indicate when, by "international protection" if it means Refugee Convention protection and Article 3 ECHR (or Article 3 Convention Against Torture (CAT)) protection (see e.g. paragraph 14), but these co-exist with sentences which refer vaguely to "complementary forms of protection depending on the circumstances of claims".
As regards the June 2005 report of the European Roma Rights Centre (ERRC) however, we considered we could only attach limited weight to it. There are a number of reasons for this. It is written in the style of a partisan organisation which has a settled agenda. In places, it unhelpfully makes no distinction between the situation these minorities faced under Milosevic and the situation they have faced since. It describes incidents of human rights abuses as "generalised persecution", without any concern for considerations regarding the scale and frequency of such incidents: virtually everything that has befallen the Roma and the Ashkaelia is described in terms of "generalised or systematic" persecution. In a number of places it makes generalised assertions, without giving the reader any idea of their empirical basis. In assessing the role of the international administration in Kosovo, which it regards as having condoned persecution of Roma and Ashkaelia, it gives no indication whatsoever that it has attempted to take account of this administration's protection successes, as well as protection failures, which have occurred. Whilst we take the report into account nevertheless as providing a perspective from a leading human rights organisation active on behalf of Roma and Ashkaelia, we prefer the more careful and evidence-based approach of the other reports, the latest UNHCR report in particular.
So far as the events of March 2004 and their aftermath are concerned, we note that the UN Secretary-General, Kofi Annan, has described the violence concerned as organised by extremist Albanian groups seeking to exploit the situation, (see e.g. page 15 of the US State Department report covering 2004) and that is a factor which was not immediately evident at the time of these events. The same report, at page 12, tells us that Kofi Annan's report also considered that the initial reaction of international security organisations when confronted by the violence and unrest in March 2004 was inadequate and neither the French KFOR nor the international UNMIK police were able to provide effective protection to the Ashkaelian community in Vucitrn. However, we do not think that these initial failings were perpetuated; rather, the same US State Department report along with other major reports indicates that in the ensuing period the international authorities in Kosovo were able to respond to the situation and take sufficient steps to afford protection to those groups adversely affected by these events (we note, for example, that the US State Department report covering 2004 records at pages 37-8 that in its July report on follow-up actions UNMIK said that 348 individuals had been brought before the courts for riot-related offences.). In this regard we find that the preponderance of the latest evidence continues to support the analysis given by the Tribunal in FD (paragraph 65) and SK (paragraph 16(f)).
However, whatever may be the position of Roma and those of mixed Roma ethnicity, we note that the UNHCR report of March 2005 considers that, whilst there continues to be security concerns for certain ethnic minorities, the Ashkaelia are less likely to face difficulties than Kosovo Serbs, Roma and Albanians in a minority situation. This report does not identify Ashkaelia as a general risk category. All it does is indicate that some Ashkaeli may face targeting on an individual basis. (The precise wording given in part D of the report's summary is that: "In addition, Ashkaelia and Egyptians as well as Bosniak and Goranis may be targeted, even if on a more individual basis"). Also of particular note is what is said at para 15:
Whilst this report goes on to reconfirm its view that 'Other Persons at Risk' includes '[p]ersons in ethnically mixed marriages and persons of mixed ethnicity', it confines itself to stating that such persons " may have a well-founded fear of being persecuted for Convention related reasons".
Before leaving the evidence from the UNHCR, we would note that since the hearing we have had brought to our attention the publication of a more recent UNHCR report, "UNHCR's Position on the Continued Protection Need of Individuals from Kosovo (June 2006). We considered whether to invite submissions from the parties concerning its relevance, but decided it was unnecessary, since it contains nothing to suggest that the UNHCR is now taking a different view concerning the position of Ashkaelia generally. Indeed, if anything, its text is now more emphatic that members of the Ashkaeli community do not in general have protection needs. At paragraph 3 it is stated that:
At paragraph 25 it is stated that:
UNHCR goes on to say that its only continuing concerns in relation to Ashkaelia and Egyptians relate to the manner of returns (the need for phasing). This is not a matter relevant to our assessment of risk.
In our view the evidence before us at the hearing overwhelmingly demonstrates that one factor significantly reducing the level of difficulties facing Ashkaelia is that they generally have an ability to speak fluent Albanian: see e.g. the latest CIPU report at K.6.93. We also find particularly striking the emphasis laid in the major reports on the fact that, although Ashkaelia in certain areas face difficulties, the situation varies considerably from area to area: see e.g. the latest CIPU report at K.6.92-93. That is an indication, in our view, that agencies on the ground in Kosovo are taking and will in future take steps to ensure that Ashkaelian returnees are steered away from any particularly difficult areas. We are satisfied, therefore, that in general there is currently no real risk of serious harm for returning Ashkaelia and that, except in unusual individual circumstances, were any individual Ashkaelia to face a real risk of serious harm (exceptionally), he or she would normally be able to access adequate protection from the authorities in Kosovo.
So far as living conditions are concerned, it is clear that the situation facing Ashkaelia is far from ideal and that there remains discrimination of various kind as well as harassment and occasional violence. However, we think that the comments made at paragraph 53 of FD as regards Roma generally:
continue to represent a fair evaluation of the likely conditions in which any returning Ashkaelia would have to live. Certainly none of the major reports indicate that conditions for Ashkaelians generally are so dire as to violate basic non-derogable human rights.
So far as persons of mixed Ashkaelian ethnicity are concerned, we acknowledge that there is a dearth of specific information. However, we have not seen anything to suggest that the Ashkaelian communities would reject persons who had an Ashkaelian parent, particularly when the person concerned is someone whose mode of behaviour is perceived generally as being Ashkaelian.
We would add that the appellant in this case has argued that his mode of behaviour would mark him out to other Kosovan Albanians as someone of Ashkaelian ethnicity. He has not, however, submitted that he would be at risk of being rejected by Ashkaelians by virtue of having one parent who was Albanian. We reiterate the point that in general the Ashkaelia are Albanian-speaking in any event. This constitutes a further reason, specific to the appellant's case, for dismissing the appeal.
For the above reasons:
The Adjudicator materially erred in law.
The decision we substitute for that of the Adjudicator is to dismiss the appellant's appeal on all grounds, including the asylum and human rights grounds of appeal.
Signed Date
Dr H H Storey
Senior Immigration Judge