Ibush Vanuzi, Bekim Koraci v. Immigration Officer, Heathrow Airport, Secretary of State for the Home Department, United Nations High Commissioner for Refugees (ad Litem)

Ibush VANUZI
Appellant
Bekim KORACI
Appellant
and
Immigration Officer - Heathrow Airport
First Respondent
And
Secretary of State for the Home Department
Second Respondent
And
United Nations High Commissioner for Refugees
ad Litem

THE ASYLUM AND IMMIGRATION APPEALS ACT 1993
Before:
Mr. J.A. O'BRIEN QUINN
Special Adjudicator

at HATTON CROSS

DETERMINATION AND REASONS

These two appeals are against the decision of the first respondent, dated 18 September 1993, refusing both appellants leave to enter the United Kingdom based upon the certificate of the Secretary of State, the second respondent, that the appellants, claim that their removal from the United Kingdom would be contrary to the United Kingdom's obligations under the Convention was without foundation, as it did not raise any issue as to the United Kingdom's obligations under the Convention. Accordingly this matter fell for decision under the provisions set out in paragraph 5 of the Second Schedule to the Asylum and Immigration Appeals Act 1993. The appellants appeared in person at the Hearing on 5 October 1993 and were represented by Mr. J. Lisle, of Maurice Cohen & Co., Solicitors, while the respondents were represented by Mr. A. Sen, Home Office Presenting Officer, while Mr. Lamani, at the first hearing, and Ms. Cela, at the second hearing, acted as Interpreters in the Albanian language.

On 20 September 1993, the United Nations High Commissioner for Refugees wrote a letter seeking to be treated as a party to the appeal and also made certain observations and submissions. However, those observations and submissions, relating to the "safe third country concept" and the submission that a country cannot legitimately remove an asylum-seeker to a third country unless it has established that that third country would admit the asylum-seeker, would observe the principle of non-refoulement and would consider the appellant's claim and, if appropriate, would allow him to remain as a refugee, were fully considered by Laws J. in his judgment in Mehari and Others and rejected. I am, therefore, unable to accept those submissions.

The papers before me indicated that the appellant Ibush Vanuzi, a citizen of the former State of Yugoslavia, of Albanian origin, arrived in the United Kingdom at Heathrow airport, Terminal 3, on 27 August 1993, from Sweden, where he had previously spent 11 months, and claimed political asylum, on his arrival, at the Immigration desk. He claimed to have travelled by car from Skopie to Bulgaria, Romania, Hungary, possibly Czechoslovakia, and Poland, without staying in any of those countries and only passing through, and then, by boat from Poland to Sweden. He claimed to have had no passport when he arrived in Sweden and had bought a British passport there. He stated that he had remained in Sweden between 22 August 1992 and 27 August 1993.

He claimed that his basis for seeking political asylum in the United Kingdom was that he had had notice to join the army and was forced to leave Kosovo, where he lived, because he did not want to join the army. He claimed that he was not an activist and that neither he nor any of his relatives were members of a political group. He claimed that he could not go out freely or he would be arrested and beaten up for no reason. He said that he had paid a person 800 Deutschmarks and 1000 Deutschmarks for the passport but did not know from whom he had bought it. With regard to the second appellant, Bekim Koraci, also a citizen of the former State of Yugoslavia, and of Albanian origin, he arrived in the United Kingdom from Sweden on 27 August 1993, and sought entry with an improperly obtained British Visitor's passport and, when detected, sought political asylum. The documents before me indicate that he had left Shkupi, the capital of Macedonia, travelled through Bulgaria, Romania, Hungary, Czechoslovakia and Poland by car, and did not stop at any of those countries, and, then, left from Poland to Sweden by boat without stopping there. He claimed to have been in Sweden for 2 days and to have travelled to Sweden without any documents. His claim for political asylum was based on his claim that he had been persecuted by the police because, despite 3 draft notices calling on him to do his military service in the army, he had not done his military service and had run away from home 2 years previously and had been in hiding in Skopie, staying with his father's relatives, since then. He said that, because the police were looking for him, to join the army, and because, if he joined the army he would have to kill innocent people, the army would kill him, he decided to leave Yugoslavia. He said that neither he nor anybody in his family belonged to any political group. He claimed that a friend guaranteed him a passage to the United Kingdom and that that friend, who was from Macedonia, told him to claim asylum in the United Kingdom.

The appellants are aged 20 years, having been born respectively on 3 June 1973 and 5 August 1973.

The second respondent, in his letters of 18 September 1993, in respect of both appellants, asserted that Yugoslavia was not the only country to which they could be removed as they had arrived from Sweden where they had spent, respectively 11 months, and 12 months, and had been refused asylum with a right of appeal. The Secretary of State, therefore, concluded that both appellants were returnable to Sweden which was a signatory to the 1951 Convention Relating to the Status of Refugees. The Secretary of State had, therefore, certified that the appellants, claim to asylum was without foundation. Consequently, the appellants were refused leave to enter the United Kingdom as they did not hold valid national passports or other documents satisfactorily establishing their identity and nationality.

Notice of Appeal was lodged, in respect of each appellant, against those decisiona, on 20 September 1993, on the grounds that the Secretary of State did not consider all of the facts of the appellants, applications and/or did not exercise his discretion in an appropriate manner.

When the appeal came on for hearing on 5 October 1993, Mr. Lisle called both appellants. The first appellant said that he had entered Sweden as a refugee on 7 September 1992, was not detained, and stayed in a Camp. He said that there were both Albanians and Bosnians in the Camp and that it was not specially for Albanians. He said that, in July 1993, he and others staged a hunger strike to oppose the return, by the Swedish Government, of Albanians to Kosovo. He said that he, himself, actually took part in the hunger strike. He said that he had stopped the hunger strike because the Swedish Government had said they were going to solve the problem of Albanians but that the problem later was not solved at all.

Mr. Lisle then submitted a number of documents in photostat but they were not translated.

The first appellant then said that he had got notice that his political asylum application had been refused by the Swedish Government on 29 July 1993, not long after his huger strike had stopped on 14 July 1993. He said that, as soon as he got his refusal, he was told that he either had to leave and go back or else to re-apply. He said that he consulted a solicitor who suggested that he should go back as he could not re-apply for reconsideration of his political asylum. He said that he had no other alternative but to get a passport and come here. He said that he bought a British passport in Sweden and that a person whom he did not know had arranged it. He said that, at the airport, he had only met the second appellant and did not see anybody else. He said that it was the first time that he had met the second appellant and they had been brought together by a black man who had been arranging the matter. He said he and the second appellant then boarded the plane. He said that, when he arrived in the United Kingdom, they both went to Immigration control, handed over their passports and said that they were refugees. He said that he had no relatives here and that, if he were returned to Sweden, they would only send him back to Kosovo and that there, because he had refused to join the army, they would take action against him as soon as he arrived. He said that he had experienced a certain amount of harassment by the authorities in Kosovo and he went into detail regarding those matters.

Mr. Sen did not cross-examine the first appellant and Mr. Lisle then called the second appellant. He said that his name was Bekim Koraci and not Nassar Koraci. He said that he was born in Kacanik in Kosovo in former Yugoslavia. He said that he had entered Sweden on 3 August 1992, having left his native country, and sought political asylum there. He said that he sought political asylum on account of his not having done military service which he was required to do. He said that he was moved to 4 different Camps when he was in Sweden. He said that he had spent 3 months in the last Camp. He said that the conditions in the Camps affected his health and he said that he suffered from a kidney complaint in the Camp and that that was the reason why he could not go on hunger strike. He said that he wanted to go on hunger strike to protest against the removal of Albanians to Kosovo, but that the doctor advised him that he would risk his life if he did so.

He said that he had applied for political asylum on 3 August 1992 when he had arrived but that it had been refused on 25 June 1993 by the Swedish authorities. He said that in the Camp where he was, there had been 18 refusals on the same day and that they were all Albanians. He said that it was mainly Albanians who had been refused because he had been informed by his solicitor that, despite the hunger strike, the deportations of Albanians to Kosovo would not stop and that there was no reason to grant them political asylum. He said that, after refusal, he contacted his lawyer who said that he could do nothing, as it was a decision of the Swedish Government that all Albanians should be sent back and that he had 3 weeks in which to go. He said that, after 3 weeks, people had been arrested and had been sent back to Kosovo. He said that, as he could not go back, he decided to leave Sweden because, if he had applied for reconsideration they would not give it any consideration and he would be arrested and sent back to Kosovo. He re-affirmed that people who had been given notice of refusal had been arrested. He said that he then arranged to buy a passport and to come here. He said that, when he entered the United Kingdom, he and his companion handed over their passports to the Immigration Officers and asked for political asylum.

He said that he had a sister living here. He said that if he were sent back to Sweden, as he had been refused political asylum in Sweden, he would be sent back to Kosovo automatically and it would mean his death.

He explained that by saying that he had been a target of the police in October 1989 as, between 15 October and 20 October, he had taken part in demonstrations and the police had used tear gas against them. He said that he had got arrested then and had been taken and beaten cruelly by the police. He said that on 10 February 1991, he had also been taken by the police and asked for his Identity Card and, when it was seen that he was an Albanian, he was kept at the Police Station and tortured. He explained a certain torture with a scarf and the barrel of a gun which he was supposed to eat. He said that he was not let out of the Police Station until his parents came and arranged for his release.

He was then cross-examined by Mr. Sen. He said that he had arrived in the United Kingdom with a British Visitor's passport. He said that his sister was his only relative in the United Kingdom and that she had applied for refugee status, along with her husband and children.

He said that at the Camp in Sweden he did nothing all day long as there were no facilities for play.

He was asked if he had been looked after and well treated. His reply was that the Camp he was in in July 1993 only contained Albanians from Yugoslavia. He said that there were also some Somalis but that the majority were Albanians. He said that an attempt was made to set the Camp alight when he was there but that fire-fighters had put it out and that since then the camp had been guarded. He said that the Swedish authorities did nothing to protect them.

Mr. Sen put it to him that he had been advised by his lawyer that he could make a second application and the second appellant replied that his lawyer had told him that, as a refugee, he had a right to apply again against the decision of the Government but that the Government decision to remove him to Kosovo would remain the same and that his only chance was to get a passport and leave. He said that if he were to make a second application, they could arrest him and send him to Kosovo.

It was put to him that it was only an opinion of his lawyer and that it was not definitely so. The second appellant replied by saying that the lawyer was sure of what he told him.

He was asked why his first application for political asylum in Sweden had been rejected. His reply was that in his case, he had previously taken part in demonstrations and had been arrested by the police and had not joined the army and that the Swedish authorities had said that there were not sufficient grounds for his application for political asylum and that they were sending back all Albanians and that he was an Albanian.

He was then asked about the reason for his leaving Yugoslavia and he said that it was on account of his being involved in demonstrations and his not doing military service and that it was on 15 June 1991, when the police had come to his house and took his father away when they found that he, the appellant, was not there. He said that his family were still in Kosovo but that, as far as he was aware, they were not in good health.

The second appellant was then re-examined by Mr. Lisle. He said that he did not wish to join the army because, as an Albanian, he would be sent by the Serbs to fight in Bosnia. He said that Albanians in Kosovo were feeling ever more insecure and he felt that he would have to leave to save his life. He said that his family also suffered in Kosovo.

Mr. Lisle then closed his case and I adjourned the matter until 2 o'clock for submissions.

When the case resumed at 2 o'clock Mr. Lisle said that he wished to apply to call a witness with regard to the procedure in respect of asylum applications in Sweden. He then said that he would like an adjournment in order to get such a witness and to get some further documents in support of his case.

I then adjourned the hearing and extended the time under the provisions of Rule 31.

When the hearing of both appeals was resumed on 21 December 1993, Mr. Lisle said that he was unable to produce the witness which he had intended to produce, but that he would produce a number of documents to indicate that the situation in Sweden with regard to Albanian political asylum applicants was unfair and that Sweden had changed its policy drastically where Albanians were concerned.

I was then addressed by Mr. Sen who said that he relied upon the letters of decision of the Secretary of State dated 18 September 1993 and would point out that Sweden is a safe third country which would honour its commitments and obligations under the United Nations' Convention. He submitted that there was no obligation on the Secretary of State to consider the appellants, claims for political asylum substantively and that there has never been any problem with Sweden which would accept the appellants back and consider their claims there. He submitted that the appellants did apply for political asylum, that it would appear that they were refused but that they had not appealed against that refusal, which they had a right to do. He drew my attention to the terms of paragraph 180M of HC 725 where it was stated that persons in the position of the appellants may have their applications refused in the United Kingdom without substantive consideration and may be removed to another country meeting the criteria of paragraph 180K of HC 725. He submitted, that, in the circumstances, both appeals should be dismissed.

Mr. Lisle then addressed me and drew my attention to the terms of the decision of Laws J. in Mehari and drew my attention to a number of the documents which he had submitted and which indicated that the situation in Sweden was such that Kosovo-Albanian asylum-seekers were being deported from Sweden at an average rate of 1,600 persons per month. He also indicated a document which showed that Kosovo/Albanians were having their applications for asylum proceeded with quickly and that these were usually turned down by the Swedish Immigration authorities.

He pointed out that the first appellant's application had been refused but that the second appellant's application had not been refused but that, in any event, if either or both of them had stayed, they would have lost their appeals, having regard to the attitude of the Swedish authorities to Kosovo-Albanians.

He submitted that the appeal should be allowed.

I then considered the whole situation and, having regard to the situation in Sweden with regard to Kosovo-Albanians and having regard to my own knowledge of the likelihood that the appellants may well be returned to former Yugoslavia, and, in view of the fact that there was no indication to satisfy me that the Secretary of State was fully correct in concluding that Sweden was a safe third country, I ruled that this was a matter which the Secretary of State could very well reconsider and, accordingly, I found that I was not satisfied sufficiently, following the decision in Mehari, that the claim was not well-founded and I decided to refer the case to the Secretary of State for reconsideration under the terms of paragraph 5(6) of the Second Schedule to the Asylum and Immigration Appeals Act 1993.

I informed the parties that I would commit my reasons to writing and would let them have a copy of my determination in the course of the next few days. This I now do.

Both appellants, who are citizens of the former State of Yugoslavia, and of Albanian ethnic origin, arrived in the United Kingdom from Sweden, where they had been staying for 11 months and 12 months respectively, while awaiting the outcome of their claims for political asylum there.

On arrival in the United Kingdom, they produced false immigration papers, but claimed political asylum immediately on arrival, on the basis of their claimed persecution in Kosovo in former Yugoslavia.

The Secretary of State considered that they had had an opportunity to claim political asylum in Sweden and had done so and should be returned there for substantive consideration of their claims under the provisions of paragraph 180K of HC 725. There is no doubt that the appellants had had the opportunity in Sweden to claim political asylum and had actually done so and had been refused and that, therefore, they could, under the Immigration Rules, particularly paragraphs 180K and 180M of HC 725, be returned to Sweden, the Secretary of State having certified that he was satisfied that Sweden was a safe third country which would honour its obligations under the Convention and Protocol.

However, I have heard evidence from the appellants and I have seen and read a number of documents and newspaper articles which give a strong indication that the situation in Sweden, particularly with regard to Kosovo-Albanians, as the two appellants are, may not be as secure as the Secretary of State's information leads him to believe. In this respect, I have taken account of the decision of Laws J. in Mehari and it is there made clear that it is for the Special Adjudicator to judge independently the merits of the certificate of the Secretary of State and that if he is not satisfied that the Secretary of State has acted correctly, he may, either allow the appeal or refer it back to the Secretary of State for reconsideration.

Accordingly, as I have no indication before me that the Secretary of State has had a reasonable opportunity to consider fully the situation with regard to the method and the policy in the consideration of applications for political asylum by Kosovo-Albanian refugees in Sweden, I find that, in the interests of justice, that this whole matter should be reconsidered by the Secretary of State.

I therefore, refer the matter in respect of the appellants, to the Secretary of State, for reconsideration, under the terms of paragraph 5(6) of the Second Schedule to the Asylum and Immigration Appeals Act 1993.

J.A. O'BRIEN QUINN

Special Adjudicator