Naim Hagja v. Immigration Officer, Gatwick Airport, Secretary of State for the Home Department, United Nations High Commissioner for Refugees (Ad Litem)

Naim HAGJA
Appellant
and
Immigration Officer - Gatwick 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

This is an appeal against the decision of the first respondent, dated 24th September 1993, refusing the appellant's application for political asylum and refusing him leave to enter the United Kingdom, the Secretary of State, the second respondent, having certified, in his letter of 16th September 1993, that the appellant's claim that his 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, the 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 appellant appeared in person and was represented by Mr Selwyn Davies, of Counsel, instructed by Aaronson & Co, Solicitors, while the respondent was represented by Mr. A. Sen, Home Office Presenting Officer and the interpreter in the Albanian language was Ms Cela.

The United Nations High Commissioner for Refugees had also applied to be made a party to the appeal and had made certain observations and submissions. However, those observations 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 his 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.

In addition, there was also a letter form the United Nations High Commissioner for Refugees, dated 2nd December 1993, in which he stated that he had been informed that the Swedish Authorities do send back rejected Kosovan asylum-seekers to Kosovo. He also stated that in cases of return to a "safe third country" he believed that such return should only take place in full coordination with the receiving authorities to ensure that the applicant would be able to undergo a full asylum determination. He also stated that the UNHCR held certain reservations in view of conditions prevailing in Sweden and also because it was not possible to return a rejected asylum-seeker to Kosovo directly, which made it extremely difficult to monitor conditions upon return.

The papers before me indicate that the appellant, citizen of the former State of Yugoslavia, born on 7th April 1971, arrived at Harwich on 12th July 1993 from Sweden, having travelled on an Italian Identity Card in the name Marco Rosi. He later claimed political asylum on the basis that he faced persecution if returned to the former State of Yugoslavia. He claimed that he had left Yugoslavia and had travelled to Sweden where he had remained for 13 months, that he had applied for political asylum in Sweden and that it was still under consideration. He claimed that while his application for political asylum in Sweden had not been refused, a lawyer there had informed him that he had little chance of staying in Sweden and that, one by one, Albanian people were being returned back, their appeals having been refused. He also claimed that he was suffering from Hodgkinson's Disease which made his health worse and that he had the impression that if he were refused, he would have to go back to Yugoslavia, where the Serbs were closing the hospitals, and he was in depression.

The second respondent, in his letter of 16th September 1993, asserted that Yugoslavia was not the only country to which the appellant could be removed as he had arrived from Sweden, where he had spent 13 months and had an outstanding asylum application. The Secretary of State therefore concluded that, under paragraph 10 of Schedule 2 to the Immigration Act 1971, the appellant was returnable to Sweden, which was a signatory to the 1951 Convention Relating to the Status of Refugees. The Secretary of State, on the basis of the information available to him about the policies and practices of Sweden, was satisfied that the Swedish Authorities would not further remove the appellant to the former State of Yugoslavia, without first considering in accordance with his obligations under the 1951 Convention, any application the appellant may have made for asylum in that country.

The Secretary of State, accordingly, certified that, in his opinion the appellant's claim that his 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. The appellant was, consequently refused leave to enter the United Kingdom as he did not hold a valid national passport or other document satisfactorily establishing his identity and nationality.

Notice of Appeal was lodged against that decision on 28th October 1993, on the grounds that:-

"l)The Secretary of State has failed to take account of the relevant evidence and to consider it properly or at all and has arrived at an erroneous decision against the weight of the evidence.

2)The Secretary of State has failed to take proper account of expert evidence or any account at all and has arrived, therefore, at an erroneous decision.

3)The Secretary of State has failed to take proper account of the compelling and compassionate exceptional circumstances. Grounds will follow."

When the appeal came on for hearing before me, Mr Selwyn Davies produced a number of documents and referred to a number of documents which had been submitted earlier and, in particular, drew my attention to the letter from the United Nations High Commissioner for Refugees dated 2nd December 1993, which had already been received by me. Mr. Selwyn Davies submitted that he would rely upon the documents, and in particular, upon the UNHCR letter, but would call the appellant to supplement the evidence which was there contained.

The appellant then gave evidence in which he stated that he was from Kosovo in former Yugoslavia and was of Albanian origin. He stated that he had left for Macedonia and had travelled from Macedonia by bus for 5 days, then took a bus to Bulgaria and from there went to Sweden, where he arrived on 15th June 1992. He explained how he had been ill since 1987 with Hodgkinson's Disease and that at that time there had been no problem but that, since Kosovo became part of Serbia, he was having difficulties in getting hospital treatment.

He said that before leaving Kosovo he was a member of a youth organisation and was teaching them martial arts.

He explained at length how he had had difficulty with the Serbian police who were looking for him because he did not do his military service. He said that he refused to do military service because he would be sent to fight against Muslims in Bosnia and, as he was himself a member of a minority, he did not approve of suppression of other minorities.

He explained about how his father had been imprisoned for 5 years at the time that Kosovo was separated from Albania. He said that his father was president of a branch of the Democratic League of Kosovo.

He said that if he were sent back he would be arrested by the Serbs and that, with his disease, he would probably die under beating and torture. He said that a number of his friends, who were Albanians in Kosovo, suffered under the hands of the Serbs and that life was really tough there.

With regard to his disease, he produced a medical report from a Doctor Bevan, who set out the serious situation in which the appellant was.

The appellant said that when he went to Sweden he claimed political asylum and that a provisional finding in his respect was made. He said that he had not been ordered to leave Sweden, but that he had friends who had had their political asylum claims refused and that they were Yugoslavians just like himself, and were deported from Sweden.

He said that when people were sent back to Macedonia, contact was not able to be made with them. He said that they asked the Immigration Authorities in Sweden but that nothing was heard of these people since they had gone back. He said that he was worried about these people who were his friends and had been at school with him.

He said that, apart from such people being sent back, there was nothing wrong in Sweden and that he had applied to come here because he wished to be safe. He said that he had friends in Sweden and had a cousin in Sweden who had been refused political asylum and that he had escaped from Sweden and that there were many others in similar situations.

He said that if he returned to Sweden he would be deported to Kosovo, and he did not think that they would reconsider his political asylum application as he would have been out of Sweden for 6 months. He said that if they did assess his claim he thought that the Swedish Authorities would send him somewhere, probably back to England, or more likely to Kosovo.

The appellant was then cross-examined by Mr. Sen. The appellant said that his application in Sweden had not yet been decided and that he had got nothing definite officially. He said that he had spoken to his solicitor a few days before he left and his solicitor told him that being an Albanian he had not got a chance. He said that that solicitor had been dealing with his case from the beginning. He said that his solicitor had told him that in the last 1-11/2 months the Swedish Authorities had changed a lot, and treated Albanians differently then they did when he had arrived first.

With regard to his cousin, the appellant said that he had last seen him in Sweden and that he did not know much more about him.

He then referred to certain letters from Juris Tcentrum, dated 7th October 1993 and 21st September 1993, which dealt with his particular case and stated that he would not have a chance of returning to Sweden.

There was no re-examination and I did not have any questions.

I was then addressed by Mr. Sen who submitted that I should dismiss the appeal, drew my attention to paragraphs 180K and 180M of HC725. He submitted that the Secretary of State was correct to certify that the appellant's claim was without foundation and was correct to be satisfied that Sweden was a safe third country, which would honour its obligations.

He also drew my attention to the case of Miller [1988] IMM.A.R. 358.

He referred to the UNHCR letter, and submitted that that was a matter which the UNHCR should take up with the Swedish Government and was not a matter which affected the Secretary of State.

He said that he had spoken to the Home Office with regard to the UNHCR's letter, but that he had not got any further information and was satisfied that the Secretary of State's decision was correct in all the circumstances.

He also drew attention to the fact that the appellant's application for political asylum in Sweden had lapsed and had been allowed to lapse voluntarily by him.

He said that in all the circumstances the appeal should be dismissed.

I was then addressed by Mr. Davies who outlined the evidence, submitted that, on the evidence before me, a number of extracts from which he read in open Court, and laid emphasis upon, the appeal should be allowed.

He also drew attention to the appellant's health and submitted that that was, in all the circumstances, a compassionate matter which had to be taken into consideration.

He submitted that, on the evidence as a whole, the appeal should be allowed, but that if I were not disposed to allow the appeal I should consider sending it back for reconsideration under paragraph 5(6), or failing that, I should look at the matter from the compassionate point of view and make a recommendation to the Secretary of State that he should exercise his discretion.

I then considered the matter and ruled that, having regard to the documents before me and the letter of the UNHCR, this was a case which should be sent back to the Secretary of State for reconsideration under the terms of paragraph 5(6) of the Second Schedule to Asylum and Immigration Appeals Act 1993. I informed the parties that I would commit my reasons to writing in the course of the next few days and send them my written determination.

In this appeal, the appellant, a citizen of the former State of Yugoslavia and an ethnic Albanian from the Kosovo District, entered the United Kingdom on 12th July 1993 and sought political asylum on the grounds of his fear of persecution in Yugoslavia, due to his Albanian ethnic origins and his refusal to do military service. He had spent some 13 months in Sweden prior to coming to the United Kingdom and had left Sweden as, although he had applied for political asylum there, and had not yet been refused, he had seen that others, with a similar background to his, and who had also applied for political asylum, had been refused and had been deported back to their country of origin. He also said that the lawyer who had been advising him throughout, had advised him that his chance of success in his application for political asylum was not very strong, as the Swedish Authorities in the 1-11/2 months prior to his leaving Sweden, had changed their policy with regard to ethnic Albanians.

This claim that there had been a change of policy by the Swedish Authorities would appear, from evidence produced before me, to have some foundation in fact, judging from the documents which I have seen and from the letter of the UNHCR addressed to me. As I see the situation, and taking account of Mr. Sen's strong submissions in the matter, I am of the opinion that, while the Deputy Representative of the UNHCR in the United Kingdom, in his letter of 2nd December 1993, does not state that Sweden is not a safe third country for Kosovo/Albanians, it appears to me that the situation with regard Kosovo /Albanians in Sweden is such, that great caution should be exercised in the consideration of the attitude being adopted by the Swedish Authorities and that, it is a matter which the Secretary of State could well consider taking up with the Swedish Authorities, so that the position can be clarified.

In the meantime, taking full account of the terms of paragraphs 180K and 180M of HC725 and reading them in the light of the decision of Laws J. in Mehari, I find that I am not satisfied that the appellant would have his application substantively considered by the Swedish Authorities were he to be returned to Sweden. That is not to say that I find Sweden not to be a safe third country but that, in the circumstances, as I see them, in view of the evidence before me and in view of the cautionary note in the UNHCR letter of 3rd December 1993, 1 consider that I cannot be satisfied that the appellant's claim is without foundation and, in the interest of justice, I consider that it would be the safer course to refer this whole matter back to the Secretary of State for re-consideration.

In so concluding, I have taken account of the appellant's health, but I have not found it to be a deciding factor in coming to my decision.

I, therefore, ruled, on 21st December 1993, that this matter should be referred back 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, and the above sets out my reasons for so doing.