Djakija, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE MOSES: This is an application for judicial review seeking to quash the decision of the Secretary of State dated 22 September 2004. By that decision, the Secretary of State certified the claimant's asylum and human rights application as being clearly unfounded pursuant to section 94(2) of the National Immigration and Asylum Act 2002.

The relevant statutory framework is by now well-known. Since the state in question is Kosovo, the question for the Secretary of State was whether he was satisfied that the claim was not clearly unfounded. Again, this is not the case for setting out yet again those authorities, which are repeated in nearly every case, as to what is meant by manifestly unfounded. I should only say that the claimant's reliance upon Dyson J's (as he then was) comments in Vallaj v Secretary of State for the Home Department [2001] EWCA Civ 782, namely that "a claim is not manifestly unfounded if the answer only becomes plain after a lengthy and detailed consideration", triggered a substantial response on behalf of the Secretary of State, pointing out that that test by itself is an inadequate guide as to the proper approach as to whether something is not manifestly unfounded.

The clearer guidance is given by Lord Bingham and Lord Hutton in R(Yogathas and Thangarasa) v Secretary of State for the Home Department [2003] 1 AC 920. But the upshot is that a decision maker must take into account that the decision-maker would: (1) consider the factual substance and detail of the claim; (2) consider how it stands with the known background data; (3) consider whether in the round it is capable of belief; (4) if not, consider whether some of it is capable of belief; (5) consider whether if eventually believed in whole or in part, it is capable of coming within the Convention. If the answer is such that the claim cannot on any legitimate view succeed, then the claim is unfounded, if not, not: see R(L) v Secretary of State for the Home Department [2003] EWCA Civ 25. Clearly, the Court of Appeal in that case did not, bearing in mind the importance of asylum claims, expect any court to undertake a mechanical process. All will depend upon the court's views of the arguability of the claim. If the court took the view that the case was not clearly unfounded, it would be at least arguable before the adjudicator that there was substance in the claim. There are many authorities for that proposition. I need not recite them.

Moreover, once permission has been given, one has to bear in mind, although it is clearly not binding, that a judge of the same jurisdiction has thought that it was arguable that the claim was arguable. Crane J in this case gave permission in writing. The matter is now before me as a substantive matter. The time, effort and energy in hearing this application might well have been spent, if the Secretary of State is right, in demonstrating that there was no objective basis for the claimant's fear before the adjudicator. That alas is water under the bridge.

The facts of the matter, in at least outline although not in respect of some of the detail, are set out within the claimant's grounds. The claimant is a citizen of Serbia and Montenegro (Kosovo). He claimed asylum on 24 February 2004. The basis of his fear rested upon the circumstances surrounding the murder of his brother in or around June of 1999. It appears clear that his brother was murdered by KLA security forces. What is less clear, but what has been alleged, is that those forces were led by Mr Agron Zeqiri. The claimant certainly thought that he was the instigator and leader of the gang which murdered his brother.

After describing events which led to his fearing that he would be executed, he describes the events which led to his brother's murder. The brother was visited by the KLA, he said, led by Mr Agron Zeqiri, and taken away purportedly for questioning. The claimant said he followed the car to KLA headquarters. He was too scared to remain in the area and returned. His brother did not. A short time after, whilst he was hiding in his sister's house, his brother's body was found outside the KLA headquarters, badly mutilated with gunshot wounds to the arms, leg and head. This led to an investigation undertaken by KFOR. During that investigation but before the trial that subsequently took place, the claimant fled to Albania in June of 1999, travelled to Turkey and stayed there for some 25 days before returning to Kosovo. He did not return to his own home, but stayed with his in-laws for a period of one year. There is some controversy as to the circumstances in which he stayed there. That was in an area called Prizren, and he says he was effectively in hiding during that period. The Secretary of State says that he seems to have escaped the notice of anyone who might wish him ill on the part of the KLA during that period.

In early 2003 Agron Zeqiri was arrested and charged with abduction and murder. The claimant was subpoenaed as a witness at his trial. He gave evidence. But although his evidence did (and was designed to) link Agron Zeqiri with the visit to the brother that culminated in the murder, Agron Zeqiri was acquitted. As the Secretary of State points out, other members of the family also gave evidence at that trial and there is before the court a note of the nature of that evidence. It is apparent that whilst other members of the family witnessed the purported arrest or apparent arrest of the murdered brother, no one was able, apart from this claimant, to link the purported arrest with the subsequent murder because it was only this claimant who followed in the car to the KLA headquarters.

Following the trial, this claimant, as I have said, went to the United Kingdom and claimed asylum. He says (and this appears to be undisputed) that, pending the trial, the dangers to his safety were such that at the request of the prosecutor and on the judge's approval, he enjoyed the status of a vulnerable witness and was provided with 24-hour police protection.

The basis of his claim now is that, although his family still lived within Kosovo and, as he says in his most recent statement, he would wish to return, he fears to live with his wife and three children, whom he says he misses greatly and loves dearly. He fears to do so because, he says, there is no system or means of providing him with protection now that he has given evidence. Agron Zeqiri is at large. The prosecution have sought to appeal, but the result of that remains unknown. He has, therefore, for the purposes of this claim contended that there is a real basis for believing that he, unlike the Kosovan population at large, will be at risk of danger to his life. He bases that claim firstly on the report of the UNHCR on the continued international protection needs of individuals from Kosovo. He points out that at paragraph 20 that report identifies certain categories of Kosovan Albanians who may face serious problems, including physical danger, were they to return home. These include: "Kosovan Albanians perceived to have been associated with the Serbian regime after 1990".

Secondly, he relies upon a letter from the Public Prosecutor Officer of Kosovo dated 30 May 2005. This records that, in the course of the proceedings in which he gave evidence, the court found that it appeared that members of the victim's family had been approached and/or intimidated by a number of current or former associates of the accused. It is that letter which records that the District Public Prosecutor's Officer is appealing the decision by which the alleged perpetrator, Zeqiri, was acquitted.

He further relies in his most recent statement on other attempts by which he has sought to enquire what protection might be afforded to him pending the outcome of the appeal. He has been told that there is no funding or allocation of aid by the United Nations to sustain protection and extend it beyond the point of trial: see paragraph 4 of a statement dated 7 June 2005.

There can be no doubt as to the genuine nature of the claimant's fear. There is no basis for saying that he is making up his genuine desire to spend his life with his wife and family who remain in Kosovo. The question is whether it is arguable that the Secretary of State erred in concluding that he was not satisfied that it was not clearly unfounded.

The Secretary of State, in advancing his arguments, repeats points that essentially were those on which the decision was based. He points out that there is no reason to think that, in the past, other members of the family were at risk; and indeed for all anybody knows they may have received special protection. There is thus no basis for suggesting that this claimant might be singled out in a way that the other members of the family appear not to have been. They too, he points out, gave evidence at the trial; not just as to the identification of the body, but also as to the circumstances of the purported arrest.

The difficulty with that submission is that, although it may turn out to be perfectly correct and of significance, the letter from the prosecutor, to which I have already referred, suggests that there were threats made against members of the family. Further, it is apparent that the evidence given by the claimant was of far greater significance than that given by other members of the family, since it was his evidence which purported to and was certainly called for the purpose of linking the events of the purported arrest with the subsequent death of his brother.

Secondly, the Secretary of State relies upon the position not only in the past but in the future: the fact that other members of his family do remain without apparent threat or danger to their lives or to their safety in the Prestina area. There is no suggestion that anyone in the KLA, which has long since ceased to exist since it was disbanded in 1999, has any interest in the family. The response to that, as it seems to me, lies in the propositions I have already identified. Their position, so it is at least arguable, was different from that of this claimant. Most significantly, the Secretary of State points out that the burden of proving the risk to the requisite standard rests upon the claimant. There is absolutely no basis, so the Secretary of State says, for thinking that, if he asked for protection, he would not be afforded the same protection that he had been afforded in the past. I have some sympathy with that submission, but I must remind myself that this case is all about certification. It is therefore most unfortunate, if this case has no merit whatever, that the matter should remain in the dark. It is plain that the enquiries made by the claimant leads him to think that there will not be protection, and certainly no reference is made to protection by the Public Prosecutor on 30 May 2005. If the Secretary of State wanted to wipe out any hope of appeal before the adjudicator and to save time and money, which is, after all, the whole point of certification, it is a pity that a telephone call, fax or an e-mail were not sent to Kosovo asking what the position is, pending the appeal, for protection of this witness. It might have got the answer: "we do not know"; "of course we will if we are asked"; "or he does not need it now". But bearing in mind that this is a case of depriving someone of an in-country appeal in respect of whom the facts are not in essence in issue, the absence of such an enquiry, in my judgment, deprives the Secretary of State of the possibility of arguing that the burden is upon the claimant and he has failed to prove it.

It may well turn out before an adjudicator (if there is to be an adjudication) that the claimant will not be able to prove it. But it seems to me that he has done enough at this stage in the absence of any clarity as to what is likely to be the position in the future, and in the context of sufficient risk in the past to justify special protection. I do reach the conclusion that the Secretary of State erred in his application of the test under section 94(3). It does seem to me that the claimant had a real argument as to the sufficiency of protection should he return.

I bear in mind that, in accordance with the decision of the Court of Appeal in R(Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605, that the sufficiency of state protection as identified by the Court of Appeal in that case does not mean that there must be a guarantee. But having regard to the background of this case, when it is quite apparent this claimant was at risk and remained at risk during the trial, now that Mr Zeqiri has been acquitted, in my judgment there would have to be greater clarity in the state of the evidence before I, like Crane J, would regard the Secretary of State as being right in thinking that the case was, in effect, wholly unarguable.

There were further arguments on which the Secretary of State relied in relation to the position of the KLA, which has now been disbanded. They were themselves subject to the objection that, despite that party having been disbanded in 1999, this applicant required special protection from Mr Zeqiri and his associates. But I do not base any decision that I make upon any failures of the Secretary of State in relation to the party at large. It seems to me that he was entitled to be satisfied that arguments about the power and reach of the KLA now would be doomed to failure.

The Secretary of State also relies, even if he is wrong about that point, upon the fact that he is satisfied that any suggestion that the claimant could not locate elsewhere in Kosovo could be bound to fail. It must be recalled how small Kosovo is. In my judgment, it is clearly arguable that if he required special protection from Mr Zeqiri and intimidation went on during the trial, the mere fact that he could locate and did locate in another town some 100 miles away would not be a sufficient safeguard. It must be recalled that when he did locate in that position, he was, as the evidence shows, effectively in hiding.

In those circumstances, and particularly having regard to the letter from the Public Prosecutor of 30 May 2005, which it must be acknowledged post-dated the Secretary of State's decision, I shall allow this application. As I have said, these are unusual circumstances where the single judge gave permission so that he was clearly concerned, and I remain of concern. In making this decision, I am merely seeking to open the way to what may well be a short and doomed application before the adjudicator. But in saying that, I am firmly of the view that the Secretary of State was wrong to certify this claim.

I am intending in giving this judgment to do no more than resolve the particular issue between this applicant and the Secretary of State. In those circumstances, I have not sought in greater detail to analyse the jurisprudence in relation to what is meant by the double negative in section 94(3), since that has been the subject of quite enough authority already; nor in any way seeking to comment or add to or detract from the clear principles relevant to sufficiency of state protection or internal location. I have merely looked at the somewhat unusual facts of this case and agreed with Crane J.

MR BLAKE: My Lord, I am most grateful. I would ask for the applicant's costs.

MR PATEL: I cannot resist that.

MR JUSTICE MOSES: Thank you very much.