Heard at Field House			
On 21 May 2004
Dictated 20 May 2004		GK (Return- Sentenced by Former Regime) Serbia and Montenegro [2004] UKIAT 00203	

IMMIGRATION APPEAL TRIBUNAL

                                                                              Date Determination notified:

                                                                                     02 July 2004  	

	Before:		

Mr S L Batiste, Vice President
Mr Richard Chalkley, Vice President
Mr Richard Hamilton
	
Between	

	
		APPELLANT	
			
	and		

SECRETARY OF STATE FOR THE HOME DEPARTMENT
	
		RESPONDENT 	

	

Mr Adam Pipe, of Counsel, instructed by the Immigration Advisory Service, appeared on behalf of the Appellant and Mr G Saunders, a Home Office Presenting Officer, appeared on behalf of the Respondent.

DETERMINATION AND REASONS

1.	The Appellant is a citizen of Serbia and Montenegro, who was born on 23 July 1959.  He appeals, with leave, against the determination of an Adjudicator, Mr D J Salmon, who dismissed his appeal against the decision of the Respondent on 22 September 2003, to refuse to grant leave to enter after refusing asylum.   We have decided to report this determination because of what we have to say about the risk on return to Serbia Montenegro by someone who was sentenced by the former Serbian regime in Kosovo for supplying arms to the KLA. 

2.	The Appellant is an ethnic Albanian from Montenegro who fears, if returned to his country of nationality, that he would be mistreated due to his race and perceived political opinion.  He undertook basic military service, but was later, in November 1992, called back to the army.  Instead of reporting for service, he escaped to Italy where he remained for a year.  He returned to Montenegro in 1994, because the atmosphere was he says, by then, much quieter.  He was not harassed at all by the authorities over the next four years.  When the situation in Kosovo deteriorated and following the revolution in Albania, the Appellant became involved in trafficking arms from Albania to Kosovo and, to a lesser extent, to Montenegro.  On 1 May 1998, he claims that he was arrested by the police, beaten and whilst in custody was mistreated.  He was charged with draft evasion, “attempting to topple the government” and arms smuggling to the KLA.  On 30 June 1998, he was released on bail of 20,000 Deutsch Marks and three days later left the country.  Sometime in 1998, he was tried in his absence and, he claims, sentenced to eleven years’ prison by the High Court in Pristina.

3.	The Adjudicator accepted that the Appellant had been arrested in May 1998.  But he considered it unlikely that, after five years, the authorities would suddenly become interested in the Appellant’s failure to undertake military duty and noted that the allegation of toppling the government was unexplained.  However, he accepted that it was most likely that the Appellant had been arrested on suspicion of arms smuggling.  He accepted that the Appellant was released on bail, on payment of a large amount by his uncle and that there was some finding against him in his absence by the High Court in Pristina.  This was at the time when the Yugoslavia authorities were still in control in Kosovo.  The Adjudicator accepted that the Appellant remained in Albania for two and a half years and, thereafter, made his way back to Montenegro where he collected his family and arrived in the United Kingdom on 15 April 2001.  However, he dismissed the Appellant's asylum and human rights appeals for various reasons; he noted from the objective evidence that Montenegro has a good record of human rights and that he would not be threatened because of his Albanian ethnicity; he doubted whether the sentence passed in Pristina in Kosovo when the Serbs were still in control there, would even be recorded in Montenegro; with regard to draft evasion, he noted that there was an amnesty for deserters in 1998, the Adjudicator rejected the Appellant's claim that it did not apply to Albanians.  Insofar as there was any risk to the Appellant, it was, concluded the Adjudicator, in respect of the alleged gun smuggling; this was a matter arising from the conflict in Kosovo and was for decision by the Montenegrin government.  He noted that the Appellant was sufficiently confident to return to Montenegro on his way to the United Kingdom to collect his family and doubted that he would have done so, even to collect his family, if the fear of persecution was as great as he had claimed.  The Adjudicator’s primary finding was that the Appellant would not be at any risk from the Montenegrin authorities.  Alternatively, if there was any risk to him, it would be of prosecution for illegal gun running and the objective evidence suggested that he would receive a fair trial and that the prison conditions in Montenegro, (were he to be sentenced) would not be such as to breach the Appellant's Article 3 rights.  

4.	The grounds of appeal challenge the determination on various bases.  First the Adjudicator, it is alleged, did not apply the correct standard of proof.  Second, there was no reason why a prison sentence imposed in one part of Yugoslavia would not be recorded in another part.  Third the Montenegrin government would not make an objective decision in relation to the charge of gun-running to the KLA, as the Appellant would be tried by a military court of high-ranking officials in the armed forces.  Moreover, the CIPU Report showed that the courts are not independent in practice or free from state interference or corruption and that the military court system was under the control of the federal authorities.

5.	In assessing the sustainability of the Adjudicator’s primary finding that the Appellant would not be at risk at all on return, we note that the Appellant himself said in paragraph 4 of his written statement of 2 December 2003, that:-

	“I have already stated that the authorities were arresting all ethnic Albanians at the time and they had no proof against me.  In any case the fact that my uncle paid a considerable sum of money which in reality would have ended up in the hands of the officials there meant that I was able to obtain bail at this time.” (Our emphasis)

6.	In paragraph 2 of the same statement he said:-

	“In December 2000 I was charged with offences for not fighting during the war.  This was separate to the incident in 1998 when I was released on bail after my uncle paid 20,000 Deutsch Marks to secure my release.  In any case the police just suspected me of the gun-running.  They did not have any evidence against me.  There were many ethnic Albanians arrested at this time.  When I left the detention area I left Montenegro straight away.  It was in my absence I was sentenced to eleven years.  As I explained I was sentenced due to the fact that I did not join the army, was accused of arms smuggling and attempting to topple the government”.  (Our emphasis)

7.	Mr Pipe addressed us at some length.  He asked us to note the positive findings made by the Adjudicator.  In paragraph 44 of the determination, the Adjudicator accepted that the Appellant was involved in arms smuggling and in paragraph 45 accepted that the Appellant was tortured.  In paragraph 51, the Adjudicator finds that the Appellant was arrested because of gun-running, but it is not clear whether the Adjudicator accepted the eleven-year sentence.  At paragraph 46 of the determination the Adjudicator fails to make a clear finding in relation to the sentence although, in paragraph 49, it is clear that he accepts that some sort of sentence was passed on the Appellant. 

8.	There is no evidence to show how the Appellant was told of the sentence that was passed on him.  He had been gun-running to Kosovo and to Montenegro.  He had been arrested in Kosovo and was bailed.  He then went to Albania where he remained for some time and then went to Montenegro to collect his wife and child who had earlier gone back to Montenegro from Albania where they had been.  He met his wife in Albania.  She stayed there for some six or seven months before she returned to Montenegro.  She had fled to Albania following the Appellant's arrest.  She was not able to remain in Albania.  Counsel confirmed that it appeared that after the Appellant's release he went to Albania via Montenegro, so that in fact, he had been to Montenegro on two occasions following his detention.

9.	Counsel suggested that the question for the Tribunal was whether the Appellant would face a fair sentence in Montenegro, assuming that the sentence passed on him in his absence was effective.  Counsel conceded that there was no evidence to suggest that the Appellant would not qualify under the Amnesty for not having fought.  

10.	In addressing us specifically on the grounds, the first was that there was no reason to suggest that a sentence passed in one part of Yugoslavia would not be recorded in another.  Counsel confirmed that there was no objective evidence showing the current pursuit of those involved with the KLA except in relation to war crimes.  He agreed that enquiries made of the Serbia and Montenegro Embassy in London may have assisted, but none had been made.  Counsel confirmed that he had no specific evidence to show that the Montenegro government is likely to be interested in someone who had been sentenced in absentia for allegedly gun-running.  The Tribunal enquired of Counsel whether, in the circumstances, he was withdrawing the first ground.   He confirmed that he would.  We pointed out to him that if he did withdraw it, then the Appellant's appeal must fail in its entirety, because on return he would not face any trial.  Counsel conceded that that must be correct.  He accepted that the Appellant was not a war criminal, but he could not withdraw this ground, or the appeal, but in the light of this could not take the matter any further.

11.	Addressing us briefly Mr Saunders suggested that the Appellant could return to Kosovo if he wanted to.  There was nothing to stop him going to Pristina, which is, of course, part of Serbia and Montenegro.  There is nothing specific in the removal directions, which would prevent this.  There is no evidence that a person sentenced by the Serbs in 1998 in Kosovo would now have to serve any sentence.  He invited us to dismiss the appeal.  

12.	We have concluded that we must dismiss the appeal. 

13.	In paragraph 49 of his determination the Adjudicator said, in relation to the Appellant’s claim that he had been sentenced to eleven years in absentia, “nevertheless I think it probably true that some sort of sentence was passed on him in his absence.  One reason for this is that he refers to it being in the court of Pristina.  I see no reason why he should mention a sentence being imposed in Kosovo rather than Montenegro if there was not some truth in this.  I have reservations, however, as to whether a sentence passed in Pristina while the Serbs were still in control there would be recorded in any event in Montenegro.”  

14.  	Counsel very fairly accepted that he had no credible objective evidence on which he could rely to show that someone who was sentenced in Kosovo to a term of imprisonment for assisting the KLA in 1998, by supplying arms by the Serbs, would now have to serve any sentence on return to Serbia Montenegro.  We do not believe that he would be required to serve any sentence now, given that the sentence (if indeed there was one) was imposed by the Serb regime that has now gone.  The offence, in any event, is of the type that is likely to be seen as being political in nature, imposed by a previous hostile regime.  It follows that, since he will not face any trial on return, or have to serve the sentence that was imposed on him in his absence, the remaining grounds of appeal fall away.  We have concluded, therefore, that this appeal must be dismissed.

RICHARD CHALKLEY
VICE-PRESIDENT