AK & FH (Kosovo) v Secretary of State for the Home Deparment

In an asylum appeal, a tribunal must be read as a whole. A reference to returnability in one paragraph does not show that evidence about safety on return was ignored if the determination elsewhere evaluates the relevant policy and evidence. Evidence from officials responsible for returns may be relevant to risk, but its weight is for the tribunal. Whether a person can in fact be returned is distinct from whether return would expose them to persecution or treatment contrary to Article 3. An appellate court should be slow to interfere with an expert tribunal’s evaluation of evidence. Unless the conclusion is perverse in the Wednesbury sense, it is lawful even if it was not the only conclusion available.

Two Kosovan citizens, one of Roma Ashkaeli ethnicity and the other of Roma ethnicity, claimed asylum and humanitarian protection. Both were sons of known Serb collaborators and alleged that they would be at risk because they would be perceived as collaborators themselves.

The Asylum and Immigration Tribunal rejected their claims after reconsideration, finding no real risk to family members of known collaborators. Permission to appeal was granted only on the issue whether the Tribunal had failed to consider uncontested evidence that the Office of Communities, Return and Minority Affairs would refuse to admit persons with the appellants’ background because of safety concerns. The central question was whether the Tribunal had properly considered that evidence and lawfully assessed the risk on return.

Lord Justice Sullivan gave the judgment, with which Lord Justice Etherton and Lord Justice Wilson agreed.

1. Disposition. The appeals were dismissed. The Tribunal’s determination was legally sustainable.
2. Relevance of the OCRM evidence. Actual returnability was not itself the issue before the Tribunal. However, the reasons underlying the OCRM’s position, insofar as they reflected concerns about safety on return, were relevant to the risk assessment.
3. Determination read as a whole. The Tribunal had considered the UNHCR’s position, the evidence of Mr Korovilas, and the views of persons he had interviewed, including OCRM officials. Its discussion was therefore not confined to paragraph 120, which addressed the separate question of actual returnability. The Tribunal accepted substantial societal animosity towards known collaborators and accepted that the relevant officials genuinely held their views, but concluded that those opinions did not establish a real risk to family members.
4. Appellate restraint. The weight given to the evidence was for the Tribunal. An appellate court should be very slow to find that an expert Tribunal acted perversely. The decision need not be the only conclusion available; it is sufficient that the Tribunal could lawfully reach it on the evidence. In the absence of Wednesbury perversity, the challenge could not succeed.
5. Separate returnability issue. Whether the appellants could actually be returned was a different question. On that question, the views of the Kosovan authorities, rather than those of the Secretary of State or the Tribunal, would be determinative.

The formal order was that the application be refused.

1. Court of Appeal (Civil Division): Permission to appeal was refused on two grounds and granted on a third, limited to the alleged failure to consider the OCRM’s safety-based position. The Court dismissed the appeals and formally ordered that the application be refused: [2009] EWCA Civ 1032.
2. Asylum and Immigration Tribunal: Following reconsideration, the Tribunal dismissed both appeals on asylum and human-rights grounds in a determination dated 22 October 2008.