C5 2006/0202
Neutral Citation Number: [2006] EWCA Civ 616
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
 
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 26th April 2006
 
B E F O R E:
LORD JUSTICE MAURICE KAY

V
CLAIMANT/APPELLANT
- v -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
DEFENDANT/RESPONDENT

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THE APPELLANT APPEARED IN PERSON

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

J U D G M E N T 
(As Approved by the Court)
 
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1.	LORD JUSTICE MAURICE KAY: This is an application for permission to appeal against a decision of the Asylum and Immigration Tribunal which on 9 December 2005 dismissed Miss V’s appeal against the earlier determination of an adjudicator.  

2.	Miss V is an ethnic Serb who was born in what is now Croatia on 1 September 1970.  She spent some time in Belgrade between 1989 and 1999, but then returned to Croatia. She has given an account of life in Croatia which includes various incidents of harassment, including a death threat in September 1999. Her account has been accepted as a truthful one. She came to this country in September 1999 and claimed asylum on arrival. This was refused by the Secretary of State, who took the view that the situation in Croatia for ethnic Serbs had improved and that the police were now more responsive to ethnically motivated crime. 

3.	At Miss V’s appeal to the adjudicator he considered a substantial volume of material which had been placed before him, much of it concerning the area around Benkovac, which I understand to be Miss V’s home area in Croatia.  The adjudicator stated: 

“I have considered the objective evidence in this case.  I do not mention it all here.  The appellant’s bundles run to nearly 400 pages.”

4.	The adjudicator referred to the case of SK (Return - Ethnic Serb) Croatia CG [2002] UKIAT 05613 and considered it in the light of the evidence put forward by Miss V concerning the area around Benkovac. The adjudicator found that much of the evidence was: 

“… not of obvious authority.  By this I mean that it is often unclear who prepared it and on what evidence.”

5.	The evidence to which he came to accord more weight was such that, in his words, it did not suggest that:

“… societal intimidation or violence crosses the threshold of persecution.”

6.	His conclusion is to be found in this paragraph:

“I cannot find any reason to distinguish the present case from MS and SK. There is nothing about the Appellant to distinguish her or to cause her to stand out for particularly harsh or adverse treatment as a Serb.  I accept she is identifiable (by reason of accent) as a Serb but cannot view her as any different from the Appellants in MS or SK.  Nor is there any reason to believe that she is likely to suffer in Benkovac persecutory treatment or treatment contrary to Article 3 of the ECHR any more than in any other area of Croatia.”

7.	There was also an argument by reference to Article 8 of the ECHR. The fact is that Miss V’s siblings are present in the United Kingdom; however, the adjudicator found that she has no particular dependence on or support from them, and in any event their asylum claims have been refused, as has that of Miss V’s boyfriend.  The conclusion by reference to Article 8 was that removal would not be a disproportionate inference with her rights.

8.	The adjudicator added:

“I do not consider the decision so unreasonable that no reasonable Secretary of State could have reached it. In fact had the decision been entirely my own, I would have reached the same conclusion.”

9.	Finally there was an issue as to delay, but again by reference to the earlier cases and in particular that of MS the adjudicator was not impressed by that ground of appeal.

10.	The determination of the adjudicator was then the subject of an appeal to the Asylum and Immigration Tribunal.  The Tribunal found that the adjudicator had fully considered the evidence.  The Tribunal stated that they were:

“… not satisfied that the Appellant … is able to establish a claim under either the 1951 Convention or the ECHR ... In the light of what was said specifically in SK and in the objective evidence, a claim based on the situation in Zadar and its hinterland is not enough to reopen the facts.” 

11.	On the question of delay the Tribunal found no error in the approach of the adjudicator.

12.	In the proposed appeal to this court, issues are raised as to whether the Tribunal adequately considered the evidence about Benkovac and the Zadar area, about whether they had properly dealt with complaints as to unfairness in the proceedings before the adjudicator, and as to whether they and the adjudicator had properly dealt with the question of delay.  An appeal to this court can, of course, only be made on a point of law, and permission for such an appeal can only be granted if this court finds there would be a real prospect of success in such an appeal or if there is some other compelling reason for granting permission.  

13.	It seems to me that there is a fundamental problem facing this application for permission to appeal.  The material, and including particularly the material which Miss V has handed to me this morning, concentrates very strongly on conditions in the Benkovac area.  In order for that material, and this central strand in the proposed appeal, to have a real prospect of success, Miss V would have to establish one of a number of possibilities. The first is that the country guidance case of SK is no longer valid.   That is something which, it seems to me, is not open to her as a result of subsequent decisions in the Tribunal and indeed in this court, where SK has consistently been accepted. The most recent is the case Strbac v SSHD [2205] EWCA Civ 848 which was decided in July 2005.

14.	If, as I believe to be the case, SK stands as country guidance, then in order to succeed Miss V would have to have an arguable case that she has some personal characteristic, other than simply being an ethnic Serb, which would put her at risk anywhere in Croatia, or that there are specific reasons why it would be unduly harsh for her to relocate to a different part of Croatia.  As I read the material, and it is copious, there is no basis upon which she could establish that there are circumstances relating to her, other than her ethnicity, which would cause her to be persecuted or subjected to inhuman or degrading treatment in Croatia. So far as other areas of Croatia are concerned, when I put that to Miss V this morning she made it clear that she has a subjective fear of returning to any part of Croatia, and one can understand her feelings in that regard. In the past, when no doubt asked to explain the matter similarly, she has referred to difficulties in obtaining employment elsewhere in Croatia and the lack of a network of family and friends elsewhere in Croatia. This morning she has added problems about accommodation to that list. All that can be said of her anxieties in that regard is that, even accepting them as genuine, as I am perfectly prepared to do, they are not matters which would enable her to sustain an argument that it would be unduly harsh for her to relocate to a different part of Croatia. That is a demanding test and it is one that, quite simply, she is unable to satisfy.  

15.	So far as the question of delay is concerned it seems that historically, the point sought to be made is that, if the claim had been determined in 2000, Miss V would have been granted leave to remain. That, it seems to me, is not self evident. Other recent authority, in particular the case of Strbac to which I have just referred, draws attention to the fact that by April 2000, official Home Office guidance was that:

“… it is most unlikely that ethnic Serbs could now substantiate a claim for asylum.” 
	See  paragraph 10.

16.	That leaves the question of unfairness in the proceedings before the adjudicator. Even if there were anything in that complaint, the fact is that Miss V was able to present her arguments with the assistance of a legal representative before the Asylum and Immigration Tribunal, and even if there were aspects of the evidence that were unconsidered by the adjudicator, it seems to me that the case was considered in the round by the Tribunal.  There were aspects of the decision of the adjudicator which suggested an erroneous legal approach because of the prevailing test applied to such cases as this on the subject of proportionality. I have referred to what the adjudicator said about that in referring to “no reasonable Secretary of State could have reached” the decision. That is not the correct approach, as more recent authority such as the case of                            Huang & Ors v SSHD [2005] EWCA Civ 105 establishes. However, the adjudicator did go on to say that if the decision had been entirely her own, as the recent authority establishes that it was, she would have reached the same conclusion.  I have no doubt that that is correct, and the Tribunal viewed the matter in the same way.  To the extent that there was an error of law on the part of the adjudicator, it is not now, when looked at in the round, a material error of law.  It was self corrected in the text of the determination itself and it has been considered by the Asylum and Immigration Tribunal.  

17.	I have sympathy for Miss V. She has presented her case in a proper and courteous way. However, although I accept that she has strong reasons for not wanting to return to Croatia, the fact is that she is unable to establish that she has a well-founded fear of persecution, however much she may have a subjective fear, and she is unable to establish a breach of Article 3 of the Convention. The case based on Article 8 is a particularly weak one in view of the fact that we are talking of adult siblings in this country who do not presently have any right to remain here, and Miss V does have some family, particularly her father, in Croatia.  For all these reasons I conclude that, although it will no doubt be difficult for her to return to Croatia, the circumstances in which she will do so are not such as to give her an arguable case under either Convention, and her proposed appeal has no real prospect of success. 

18.	There being no other compelling reason for granting permission, the application is refused.

Order: Permission to appeal refused.