Hakа v Secretary of State for the Home Department

An Immigration Appeal Tribunal may reassess persecution risk and rely on a later, detailed and geographically specific country report, provided it addresses the relevant facts and discloses no error of law. Evidence of difficulties experienced by a mixed-ethnicity family does not, without more, establish previous persecution. In an Article 8 claim, the Tribunal must confront the actual family-life issue and adequately consider material evidence. An arguable failure to do so can justify permission to appeal, even where the claimed relationship is between first cousins.

This was an application for permission to appeal from an Immigration Appeal Tribunal decision dated 12 December 2001. The Tribunal had allowed an appeal against an adjudicator’s decision in favour of Bukurosh Haka, whose asylum application had been rejected by the Secretary of State.

The applicant, a Roma of mixed Albanian and Roma ethnicity from Kosovo, challenged the Tribunal’s assessment of persecution risk, including its use of a later OSCE report and its treatment of evidence concerning earlier persecution. He also relied on Article 8 in relation to his relationship with a 16-year-old first cousin living with him in Cardiff under the responsibility of Cardiff City Council. The central issues were whether either ground disclosed an arguable error of law.

The court allowed the application for an extension of time. Lord Justice Pill gave the leading reasons, and Lord Justice Clarke agreed.

1. Persecution risk. The Tribunal was entitled to make its own assessment of the evidence and to rely on the detailed OSCE report dated August 2001, which was not before the adjudicator and was the most recent report concerning the relevant geographical area. The Tribunal had properly considered the applicant’s mixed ethnicity, expressly accepting that there was discrimination against persons of mixed ethnicity.
2. The Tribunal was also entitled to conclude that there was no reasonable likelihood of persecutory treatment for which protection would not be available in the relevant part of Kosovo. The adjudicator’s reference to the problems of living as a mixed family did not amount to a finding of previous persecution. No arguable error of law was shown on this ground, so permission was refused.
3. Article 8. The Tribunal’s conclusion that the circumstances of the applicant and his cousin might not amount to interruption of family life on return could be sound if sufficiently reasoned and justified. However, its further treatment of the relationship and its comparison between family life in Kosovo and the United Kingdom were arguably defective, because they did not sufficiently confront the issue before it.
4. The relationship was between first cousins and was not one of the closer relationships normally relied upon. Nevertheless, the Cardiff social worker’s letter provided an arguable basis for concluding that the Tribunal had not adequately considered the Article 8 aspect of the appeal. Permission to appeal was therefore granted on that ground alone.

1. Court of Appeal (Civil Division): On 26 April 2002, the court allowed an extension of time, refused permission on the persecution-risk ground and granted permission on the Article 8 ground only: [2002] EWCA Civ 653.
2. Immigration Appeal Tribunal: By decision dated 12 December 2001, allowed an appeal against the adjudicator’s decision in favour of the applicant.
3. Adjudicator: Made a finding in favour of the applicant in his asylum appeal after the Secretary of State rejected his application.