Krasniqi v Secretary of State for the Home Department

In an asylum appeal, material background evidence may be central to assessing whether anticipated ill-treatment amounts to persecution and whether adequate protection is available. Permission to appeal may properly be granted where there is an arguable case that an expert immigration tribunal failed to deal with such evidence as required, even though it made adverse findings about the individual and the appeal may face substantial difficulty. The permission stage does not determine the merits of the asylum claim.

The applicant, whose father was Albanian Kosovan and whose mother was Roma, claimed that he faced persecution if returned to Kosovo because of his mixed ethnicity and the inability of KFOR and UNMIK to provide adequate protection. A Special Adjudicator dismissed his asylum appeal on 1 February 2001. The Immigration Appeal Tribunal dismissed his further appeal on 22 June 2001. The applicant sought permission to appeal, an extension of time and permission to rely on further evidence. The central issue was whether his challenge to the tribunal’s treatment of the background evidence was sufficiently arguable to proceed.

Lord Justice Laws granted permission to appeal. The judgment concerned arguability, not the ultimate merits of the asylum claim.

1. The proposed appeal challenged the Immigration Appeal Tribunal’s assessment of the treatment suffered by Roma in Kosovo. The applicant relied on material from the International Crisis Group and Amnesty International describing serious violence, ill-treatment, killings, abductions and forced displacement. The Court did not determine the evidential dispute or decide whether the applicant personally faced a real risk.
2. The applicant had established enough to be entitled to argue the matter on appeal. A proper contention that an immigration tribunal failed to deal with important background evidence in the manner required can justify allowing an appeal to proceed, notwithstanding adverse findings concerning the individual and his family.
3. The Court recognised that the applicant faced a considerable uphill struggle. The tribunal had made specific findings about his circumstances, and parts of the Special Adjudicator’s decision appeared to support the conclusion that he was not objectively at risk of persecution for a Convention reason. Those matters affected the prospects of the proposed appeal but did not eliminate arguability.
4. Background evidence is plainly important in a case of this kind. Where there is a proper argument that the tribunal failed to address it adequately, appellate consideration is appropriate.

The operative order was that the application was granted. The transcript records no separate disposition of the extension-of-time or further-evidence applications.

• Special Adjudicator: dismissed the applicant’s appeal against the Secretary of State’s refusal of asylum on 1 February 2001.
• Immigration Appeal Tribunal: dismissed the applicant’s appeal on 22 June 2001.
• Court of Appeal (Civil Division): on 2 October 2001, Lord Justice Laws granted permission to appeal in [2001] EWCA Civ 1773.