RK (Serbia) v Secretary of State for the Home Department

At a second-stage reconsideration, the tribunal must accept the adjudicator’s factual findings but independently assess present risk on return using the evidence before it. Fairness does not ordinarily require the judge to put an evaluative conclusion to the appellant where relevant evidence has already been given and further evidence has not been sought. Risk must be assessed on the whole case, including alleged ethnic and mixed-marriage risks. Brief involuntary involvement in events during extreme strife, isolated incidents, absence of systematic targeting and available protection may together justify finding no past persecution or real future risk. An appellate court will not interfere with a conclusion reasonably open on the accepted facts and materials.

The appellant, a Serbian national from Kosovo of Roma ethnicity married to a Bosniac woman, claimed asylum and related human rights protection. The Secretary of State refused the claims, and an adjudicator dismissed the appeal. On reconsideration, the Asylum and Immigration Tribunal found a material error of law and ordered a second-stage hearing confined to risk on return and any internal flight alternative, based on the adjudicator’s factual findings. The designated immigration judge dismissed the claims again. The appellant challenged the judge’s treatment of two March 2004 incidents, the alleged mixed-marriage risk, procedural fairness and the loss of previous accommodation. The central issue was whether the second-stage risk assessment involved a material error of law.

1. Appeal dismissed. In light of DK (Serbia) [2006] EWCA Civ 1747, no procedural challenge was pursued to the second-stage reconsideration. The judge was required to proceed on the adjudicator’s accepted factual findings, but was entitled to evaluate the risk on return by reference to the objective materials and other evidence before him.

2. The judge was entitled to conclude that the hand-grenade incident was random and non-targeted. No one had identified those responsible, the incident occurred during an advance by Albanians into the Serb-held area, and the objective reports contained no evidence of a backlash against ethnic minorities in northern Mitrovica. The judge did not depart from the adjudicator’s factual findings by reaching that evaluative conclusion.

3. Fairness did not require the judge to put that conclusion to the appellant before deciding the issue. The appellant had already explained his belief about the motivation for the attacks in interview, written evidence and oral evidence. If further factual findings were required, he could have sought leave to give further evidence.

4. The later assault had an ethnic character because the appellant and his wife were perceived to be non-Serbs, but it did not establish that the appellant was known specifically as Roma. In any event, the judge expressly considered the alternative case that he would be recognised as a Roma married to a Bosniac. He therefore addressed the mixed-marriage risk and did not treat non-recognition as determinative.

5. The judge was entitled to find that the brief and involuntary assistance given during the 1999 conflict did not amount to persecution, that the 2004 assault was isolated and not repeated, and that there was no systematic targeting. The absence of credible evidence of targeting as a Serb collaborator or of threatened silencing, together with the sufficiency of protection available from KFOR and UNMIK, supported the dismissal of the asylum and human rights claims. The conclusion was reasonably open on the evidence, and the appeal was dismissed.

1. Court of Appeal (Civil Division): dismissed the appeal against the designated immigration judge’s second-stage reconsideration decision.
2. Asylum and Immigration Tribunal: identified a material error of law at the first stage, ordered reconsideration confined to risk on return and internal flight on the adjudicator’s factual findings, and subsequently dismissed the asylum and human rights appeals.
3. Adjudicator: dismissed the appellant’s asylum and related human rights appeal.