Hati, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 853 (Admin)

Case No CO/6335/2004[2005] EWHC 853 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 20th April 2005
Strand
London WC2
B E F O R E:
MR JUSTICE GIBBS
Between
THE QUEEN ON THE APPLICATION OF HATIClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A PRETZELL (instructed by Messrs Sheikh & Co) appeared for CLAIMANTMR S GRODZINSKI (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE GIBBS: This is a claim for judicial review of a decision of the defendant, the Secretary of State for the Home Department, refusing to treat representations on behalf of the claimant as amounting to a fresh application for asylum. The claimant's previous application for asylum had been refused by a decision of the Immigration Appeal Tribunal, the IAT.[2]The relevant rule to be considered for the purposes of this claim is rule 346 of the Immigration Rules. That provides as follows:
"Previously rejected applications. "346. Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which: "(i) is not significant; or "(ii) is not credible; or "(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
[3]Paragraph 334 sets out the conditions for a successful asylum claim.[4]The challenged decision is set out in a refusal letter from the defendant dated 14th September 2004. It is challenged on two grounds. The headings of those two grounds are(1) failure to properly assess change in circumstances in Serbia/Montenegro, and(2) failure to apply anxious scrutiny to application and individual factors relevant to the claimant's stated case.[5]Subsequent to the refusal letter of 14th September 2004, further representations were submitted by the claimant's solicitors to the Secretary of State; in particular, the letter of 5th December 2004 and a document or documents attached to it. The Secretary of State did not reply to that letter, but detailed grounds of defence have been lodged, which include a response to the points in the letter. Those grounds of defence have been approved by the Secretary of State as constituting a further refusal decision.[6]Counsel have both sensibly agreed that this court should deal with the lawfulness of the recent refusal decision as well as the decision in the earlier refusal letter. I made it clear to Mr Pretzell on behalf of the claimant that he should feel free to advance any ground open to him to challenge the most recent decision, including, if he thought fit, grounds based on Wednesbury unreasonableness. In the event he chose not to rely upon irrationality as a basis for challenge, but continued to maintain broadly similar arguments, in relation to the detailed grounds, to those raised in connection with the refusal letter of 14th September 2004.[7]The facts on which the claim is based are in summary as follows. The claimant is a citizen of Serbia/Montenegro, Kosovo, from the Prizren-Dragaš area. He is of Gora ethnicity. He arrived in the United Kingdom on 10th September 2000 and applied for asylum the following day. The Secretary of State refused his application. He appealed against the refusal and that appeal was heard by an adjudicator, Mr Lawrence, on 19th February 2003. In a determination promulgated on 3rd April 2003, the claimant's appeal was allowed. The Secretary of State appealed the adjudicator's determination. In a decision promulgated on 22nd November 2003, the Immigration Appeal Tribunal allowed the appeal. An application for permission to appeal to the Court of Appeal was refused on 17th December 2003 and not renewed.[8]After the appeal to the IAT had been determined, in March 2004 violence between Albanians and Serbs erupted in Serbia/Montenegro. A number of ethnic minorities were caught up in the violence, which was widely reported by international human rights organisations. On 14th June 2004, the claimant's solicitors wrote to the defendant and made what they claimed to be a fresh application on behalf of the claimant. That application arose out of the events of March 2004, and their alleged effect on the claimant's case for asylum. The representations made on the claimant's behalf relied, among other things, on the fact that his credibility had never been challenged, notwithstanding the decision of the IAT, and, further, on a report by Dr Robert Hudson, a senior lecturer in European History and Politics at the University of Derby.[9]In the refusal letter of 14th September 2004, the defendant refused to treat the representations as a fresh application. Amongst other reasons for the refusal, the Secretary of State pointed out that the claimant came from Dragaš and there were no reports of attacks on Goranis during the outbreak of violence in March 2004. The Secretary of State further expressed the view that the outbreak of violence in that month was not significant enough to meet the criteria for accepting the representations as a fresh claim. It was further stated by the Secretary of State that the report of the UNHCR of 20th July 2004 was not relevant to the claimant because he was not a Serb. It was also said that none of the issues raised in the objective evidence or the report by Dr Hudson made a material difference to the likelihood of the claims succeeding, nor were the matters in that evidence sufficiently different from the earlier claim to admit a realistic prospect that the conditions for the grant of asylum would be satisfied.[10]By a letter of 8th December 2004, the claimant's solicitors made further representations to the Secretary of State, urged them to reconsider his position and gave him notice of these judicial review proceedings. As I have already mentioned, the response of the Secretary of State to these fresh representations is contained in the detailed grounds of the defence.[11]I turn now to the legal framework which governs this claim. For that purpose, I need not rehearse in detail in this judgment the principles of the Refugee Convention, the United Nations Convention and Protocol Relating to the Status of Refugees 1951, nor of the European Convention on Human Rights. In summary, it is common ground that the defendant may not lawfully remove from the United Kingdom a refugee as defined in the Convention to a place where his life or freedom would be threatened.

(A) as a person with:

"... a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion ..."
[12]Further, under the European Convention on Human Rights, a person may not be removed lawfully from the United Kingdom when to do so would be in breach of his rights under the Convention, in particular, as relevant to the present case, Article 3. This provides that:
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
[13]The real issue in this case concerns whether the defendant was entitled to refuse to accept the fresh representations as constituting a fresh asylum claim. It is, therefore, necessary to refer to the applicable law on that topic.[14]Authoritative guidance on the topic is to be found in the Court of Appeal decision in the case of R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768. The principles applicable are set out in the judgment of Sir Thomas Bingham MR at page 783, starting at letter B through to page 784 letter A: "A fresh Claim? "It was accepted for the applicant that a fresh 'claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it has to satisfy tests, analogous to Ladd v Marshall, of previous unavailability, significance and credibility. "Stuart-Smith LJ considered this matter in the Manvinder Singh case (unreported), 8th December 1995, where he said (with the agreement of Rose LJ and Sir John Balcombe): 'In my opinion, in deciding whether or not a fresh claim to asylum is made, it is necessary to analyse what are the essential ingredients of a claim to asylum and see whether any of those ingredients have changed. A useful analogy is to consider a cause of action. In order to establish a cause of action a plaintiff must prove certain ingredients. How he proves them is a matter of evidence. If he changes the essential ingredients, he is asserting a different cause of action. What are the essential ingredients of a claim for asylum? First, that the applicant has a well-founded fear of persecution; secondly, that he has that fear in relation to the country from whence he came; thirdly that the source of the persecution is the authorities of that state or, alternatively, some other group or local population where the actions of the group are knowingly tolerated by the authorities, or that the authorities refused or are unable to offer effective protection (see the handbook of the United Nations High Commissioner for Refugees, paragraph 65); finally, that the persecution is by reason of the applicant's race, religion, nationality or membership of a particular social or political group. In my view, it is only if the applicant asserts that one or more of these essential ingredients is different from his earlier claim that it can be said to be a fresh claim.' "I agree with this passage, and with the propositions accepted by counsel for the applicant. There is danger in any form of words, which can too easily be regarded as a binding formula. In the Manvinder Singh case [1996] Imm AR 41 Carnwath J held that a change in the character of the application was required. I am content with that statement, provided it is not taken to mean that there must necessarily be a change in the nature of the persecution said to be feared. The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."[15]In addition to that decision, Mr Pretzell refers me to the case of R v Secretary of State for the Home Department ex parte Ravichandran (No 3) [1997] 1 Imm AR 74 at page 76. This was an Administrative Court decision of Jowitt J. In his judgment, at page 76 of the report, Jowitt J refers to the judgment of Dyson J (as he then was) with approval. That passage reads:
"In brief, Dyson J held, when there is what is said to be a fresh application, the Secretary of State has to look at the new material, decide whether, if true, it would amount to an application for leave for asylum for a Convention reason, and then to ask himself whether the evidence proffered in support of an application is credible in the sense that there would be a reasonable prospect of its being accepted by the special adjudicator and the claim for asylum made out."
[16]It is legitimate to rely on this last citation, but it plainly cannot be read as limiting the validity of the authoritative test laid down by the former Master of the Rolls.[17]I turn now to the facts of the case as found by the adjudicator. At paragraph 4.2 of his determination and reasons, he says as follows:
"4.2. After June 1999 when KFOR entered Kosovo the Albanians began an active campaign of discrimination against the Gorani speakers. The appellant claims KLA was also involved in this. The appellant claims his family was constantly in fear. There were threats to kill the family, racist remarks, terrible ill-treatment and harassment of Gorani generally by the Albanians. The claimant claims on one occasion whilst on his way home he was stopped by what appeared like members of the KLA assaulted by them. He claims to have been hit and kicked with the butt of guns. "4.3. The appellant claims his father reported ill-treatment to the KFOR but no action was taken by them."
[18]The adjudicator continues later:
"5.2. The UNHCR '9th Assessment of the Situation of Ethnic Minorities in Kosovo' covering the period between September 2001 and April 2002 reports that the Gorani community in Kosovo experiences discriminatory practices and harassment due to the perception by some sectors in the majority population that it maintains close links with the Serb community and shares the same creed. It would appear the Kosovo Police service unjustly impounded vehicle belonging to a Gorani. It is reported that Gorani community faces targeted harassment from some members of the Kosovo police Service. Even the CIPU dated October 2002 makes similar findings. "5.3. The Albanian community did suffer at the hands of the Serbs. The Gorani are perceived by the Albanians in Kosovo to be linked with the Serbs. Therefore when the Albanians were free to act, that is to say when the Serbs were removed from Kosovo, the Albanians, in my view, mounted a sustained campaign against the Gorani community. "5.4. I do not know how the appellant's father met with death. The appellant fears it might have been at the hands of the Albanians. Given the previous threats, the general ill-treatment and the lack of protection I can very well understand why the appellant might think that. I accept that this would have given the appellant a well-founded fear of persecution in Kosovo. "5.5. The appellant gives an account of sustained campaign against his community. The KFOR forces did not assist his father when he complained to them. The objective evidence before me paints a picture which is consistent with the appellant's evidence. The appellant identifies one such incident when members thought to be of the KLA assaulted him. In my view given his general experience of discrimination, father's experience, that of his wider community and the objective evidence the appellant's fundamental rights as identified by Prof Hathaway has been violated. The State has provided no protection for the appellant. Therefore I do find the appellant has been persecuted within the terms of the Refugee Convention and will face persecution should he be returned to Kosovo. "5.6. In the light of aforementioned findings I do find the appellant's rights under article 3 of the Human Rights Convention will be violated should he be returned to Kosovo."
[19]It should be pointed out that the expression "father's experience" includes the fact that the claimant's father was actually killed, and it should further be pointed out that Professor Hathaway is a leading academic commentator on the Refugee Convention.[20]Submissions are made by Mr Pretzell to the effect that certain of the matters which led the claimant to fear persecution were personal to him rather than common to all Goranis. On the other hand, it must also be noted that the claimant himself, in a statement for the purposes of his appeal, specifically disavowed any particular personal threat to him as opposed to the general threat to Goranis.[21]As I have already mentioned, the Immigration Appeal Tribunal, on appeal by the Secretary of State, allowed his appeal. In its findings the Immigration Appeal Tribunal recited submissions and a summary of the evidence on both sides. It said as follows, commencing at paragraph 9:
"9. Even on the background materials to which the Adjudicator makes some reference, the evidence at that stage did not show that generally there was that risk of ill-treatment, albeit plainly there was discrimination by some Kosovan Albanians and no doubt there was some measure of harassment. "10. Nevertheless, it is very hard to see on the background evidence and the way the claim was being made on the evidence (ie the contents of the SEF statement, the additional statement produced for the purposes of the appeal, the respondent's oral evidence) that, whilst Gorani people have never had a particularly good relationship with Kosovan Albanians, there were no open problems before the war, nor is there a materially different picture now. "11. Indeed in comments the respondent made he did not claim to be at risk more than any other members of his community. "12. In these circumstances, we do not see how the Adjudicator could have reached the conclusion from the facts found that there was a real risk on return."
[22]The Tribunal went on to consider the effect of the objective evidence and concluded that it did not support the finding that return would be a breach of the Refugee Convention or of the European Convention on Human Rights. It cited an example in paragraph 14:
"It is clear that there are practical, economic and commercial problems faced, but we cannot find evidence that there are breaches of fundamental freedoms identified in Hathaway's third category of which the respondent is at risk."
[23]It concluded as follows:
"16. It is plain, reading more broadly than simply the Dragash area, [where the claimant came from] that there is significantly improved confidence in the KPS' impartiality and effectiveness as a police force. "17. In these circumstances we do not find that the background evidence supports the conclusion that there is either, on return to Pristina or thereafter making his way back to the Prizren/Dragash area, the respondent is at real risk of ill-treatment or persecution for a Convention reason contrary to either the Refugee Convention or the ECHR, nor that there is an absence of sufficient protection. "18. The same holds true after return and we see nothing on the evidence to support the view that the level of discrimination or difficulties faced, is supported by those controlling Kosovo or that simply they are not taking steps to try and meet what are long-standing and historical differences between ethnic groups in Kosovo. The Country Assessment, paragraph 6.70 to 6.73, presents a similar picture of the Dragash municipality as well as the Prizren region. In those circumstances we do not find that there is any material problem in obtaining housing, in an area which was relatively lightly damaged, access to social services, freedom of movement and the ability to use their own language. There is nothing to indicate that, insofar as they wish to do so, Gorani including the respondent cannot enjoy their cultural heritage without fear or without access to public services. "19. The appeal is allowed."
[24]These were, it has to be noted, comprehensive findings undisturbed on appeal. In my judgment, the further representations thereafter have to be seen in the light of those findings. A fresh claim may arise if an essentially different ingredient can be advanced so as to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion of the IAT. On the other hand, a fresh claim cannot be established by attacking, or seeking to undermine, the validity of the finding of the IAT on the earlier claim.[25]With these principles in mind both counsel have sought to analyse the subsequent events and the evidence about them. In relation to that, there is no doubt that there were serious disturbances in Kosovo in March 2004. These affected, or potentially affected, the welfare and treatment of, among others, the Gorani people. The claimant has no remaining family in his home country, according to the evidence and confirmed by Mr Pretzell. Further, there is no evidence of subsequent events which adversely affect his personal position over and beyond those events which affect the position of the Gorani people generally.[26]Therefore, the points which fall for consideration are:[27](1) Whether the Secretary of State considered, or considered properly and sufficiently, the facts and matters which arose subsequent to the appeal decision and which were capable of altering the situation so as to give rise to a fresh claim. These facts and matters are necessarily confined to those that could affect Gorani people as a whole, but that does not prevent them adversely affecting the claimant as a member of the Gorani community having regard to his history. I bear in mind also Mr Pretzell's submission that certain of the adjudicator's findings are capable of being interpreted as placing the claimant personally, as opposed to the Gorani people in general, at risk of persecution.[28](2) If the Secretary of State did give proper consideration to subsequent facts and matters, was he in any material respect guilty of any error of law in his approach? I note that it is not suggested that he was Wednesbury unreasonable. Mr Pretzell submits that he cannot have given proper consideration to the subsequent UNHCR reports, or to Dr Hudson's report, or to the other material submitted. Had he done so, it would have been at least open to him to conclude that there was a fresh claim. Therefore, if he did give consideration to the subsequent material, he must have erred in law in not treating the representations as a fresh claim. I have to say that the latter submission comes close to a submission that the Secretary of State's decision was Wednesbury unreasonable, but I shall nevertheless give the argument consideration.[29]Mr Pretzell relies on the unrest in March 2004, which post-dated the Tribunal's decision; the adverse effect that the unrest had on the Goranis; what Dr Hudson says about that; and the advice given by the UNHCR about the inadvisability of compulsory return of Goranis to Kosovo.[30]Mr Grodzinski, on behalf of the Secretary of State, invites an analysis of what the objective evidence actually amounts to. He submits that it shows that the events of March 2004 were only temporary in their effect. He says that the objective evidence, whilst it indicates that the fears of Goranis and others were understandably heightened by what happened, also shows that the real position in fact had not substantially worsened. He submits that, when following through the subsequent UNHCR reports, one finds that there is effectively no evidence of substantial change in the position of the Goranis as a result of the unrest. There is no pattern of violence or harassment of Goranis, nor of damage to property. Mr Grodzinski submits that it was neither wrong in law nor irrational for the Secretary of State to rely on the material as he clearly did.[31]In order to test their submissions, each counsel invited me to consider a particular part, or parts, of the objective evidence. I shall not recite all the extracts to which I have referred; I have read for myself all the relevant passages. Amongst the matters which Mr Pretzell relied on was a paragraph in section 1 of the UNHCR position paper of 30th March 2004. That says as follows:
"UNHCR's most recent survey on the situation of minorities, issued in March 2003 emphasized the deteriorating security situation of Kosovo Serbs, the lack of follow up by the judiciary and police to acts of aggression directed against them and the impunity if the perpetrators. Severe security incidents in mid-March 2004 led to an escalation of inter-ethnic violence all over Kosovo and brought the province to the brink of full-fledged armed conflict. As a result, 20 people were killed, more than 1,000 were wounded, private and public property including churches and monasteries were systematically destroyed, and more than 4,000 Kosovo Serbs, Ashkaelia, Roma and other minorities were driven from their homes. These incidents are the worst inter-ethnic clashes since 1999. Though the situation has now been brought under control, thanks in large part to the prompt deployment of additional NATO forces, the speed and severity of the incidents underlined the highly volatile situation and the potential for further escalation. The sudden outbreak of violence on such a large scale has shaken the confidence of minority communities and represents a huge set-back in terms of the slow but steady improvements that had been attained over the course of the past five years."
[32]There then followed detailed descriptions of the events and their repercussions. At section 4 appears the following:
"UNHCR's position remains that members of all minority groups, particularly Serbs, Roma, Ashkaelia, Egyptians should continue to benefit from international protection in countries of asylum. Furthermore the situation of Bosniaks and Goranis has deteriorated following the recent events. Therefore UNHCR recommends temporarily that no Bosniaks and Goranis be returned against their will until the situation can be further assessed. Induced or forced return movements jeopardize the highly delicate ethnic balance and may contribute to increasing the potential for new inter-ethnic clashes."
[33]Mr Pretzell relies on that report, especially the latter quoted section, which is replicated in the "Home Office Country Information Bulletin about Kosovo 2004", dated 2nd April 2004. He submits that they show a clear basis for a fresh claim. However, Mr Grodzinski points to the fact that whilst Gorani merit a specific mention in the report it is in the context of a lower level of threat posed to them than of other groups mentioned. The effect, he submits, is precautionary rather than indicative of a direct and substantial risk on return. It is also specifically said to be subject to reassessment. This interpretation of events is confirmed, submits Mr Grodzinski, by a subsequent UNHCR report. This was not submitted to the Secretary of State prior to the challenged decision, but no point is taken on that. Mr Grodzinski relies on the fact that neither the earlier nor the later report suggest any actual persecution of the Goranis. He submits that the Secretary of State was entitled to rely on significant passages in the UNHCR report of August 2004. These included the following:
"16. The security situation for Kosovo Bosniaks and Goranis has remained stable, with no serious incidents of violence reported."
[34]He submits that Dr Hudson's report does not on proper analysis support any conclusion that the claimant would be at risk on return. He submits that the Secretary of State was entitled to point out that many of the sources on which Dr Hudson relied pre-dated the decision of the IAT. Nor did any of the sources relied upon indicate that the Goranis in general would be at increased risk of persecution after March 2004. He submits that the absence of such an indication is not surprising, since it is consistent with the UNHCR papers.[35]Mr Grodzinski relies in particular on the following passages from the UNHCR report of June 2004, which are specific to Goranis:
"A4. Goranis and Bosniaks. "
Whereas Goranis and Bozniaks were not directly targeted, in some locations they felt that as a minority they may come under attack and thus opted for precautionary movements to safer places ... After a few days they had returned to their homes which were undamaged ... "In other locations, such as Prishtine/Pristina town, close ties with the majority population meant that the security situation of Gorani and Bosniaks did not suffer during the unrest."[36]Again, there appears later in the paper:
"B4. Bosniaks and Gorani. "
The few Bosniaks and Gorani who were displaced during the mid-March unrest have returned to their home communities. Returnees and remainees have resumed the same levels of freedoms they enjoyed prior to the events. Nevertheless and for reasons stated in other parts of this update, it is important to underline the continued and accrued vulnerability of these communities in the event of new violence. Likewise all other ethnic minorities in Kosovo, the Bosniaks and Gorani have now an increased level of fear and their confidence in existing security systems has been subject to the same erosions as other groups."[37]Mr Grodzinski points out that Dr Hudson's report does not deal with the question of any persecution or possible persecution of the Gorani after March 2004 and does not purport to provide anything specific relating to the facts of the claimant himself which would put him at particular risk.[38]An issue also arose about the status of the views of a Mrs Markovic which were referred to in the document emanating from the UNHCR. At first it was suggested on behalf of the claimant that Mrs Markovic's views coincided with those of the UNHCR, but that assertion was later corrected. It was still suggested by Mr Pretzell that I should give weight to Mrs Markovic's views, she being a responsible Serbian public figure. Mr Grodzinski submits that, as quoted, her views do not even by implication suggest that Goranis were at risk of persecution, and thus at their highest do not assist the claimant.[39]I have considered carefully these passages and others. In my judgment, none of the objective materials, taken separately or together, are such that the Secretary of State ought to have regarded them as giving rise to a fresh claim. The Secretary of State was quite entitled to the view that they did not amount to such a claim.[40]At page two of the refusal letter of 14th September 2004, the Secretary of State said this:
"It is not accepted that the outbreak of violence in March 2004 would, in itself, be significant enough to meet the criteria for accepting that the fresh claim has been made. There is nothing to show that following the outbreak of violence the political or inter-ethnic situation has changed to such an extent that there is now a real risk of your client being exposed to treatment which would breach Article 3 ECHR or the 1951 Refugee Convention because of his ethnicity. On the facts Mr Hati's case it is considered that your client can return to Pristina. It is considered that your client will be able to return from Pristina to his home area and given effective protection, should he need it."
[41]There are then a number of references to Dr Hudson's report and the letter continues at the foot of page 3 as follows:
"The UNHCR report dated 20th July 2004 refers to the '... situation of human rights in Kosovo and metohija'. Mr Sylejman Hati is not a Serb, so the 'security conditions in place for the return of Serbs' is not relevant to him. The comments of Jelena Markovic, Assistant Minister at the Ministry of Human and Minority Rights of Serbia and Montenegro, are quoted by UNHCR as part of their report, but Dr Hudson does not provide any evidence that the opinion of Jelena Markovic is the same as the opinion of UNHCR. In the absence of such evidence the opinion of Jelena Markovic must be considered in the context of her standpoint as part of the authorities of Serbia and Montenegro which are different from KFOR and UNMIK. Accordingly this material has been disregarded in reaching this decision. "
With regard to the other points you have raised, it is concluded that the claim advanced is not sufficiently different from the earlier claim to admit of a realistic prospect that the conditions set out in paragraph 334 will be satisfied. "Accordingly, we have decided not to treat your client's representations as a fresh application for asylum."[42]In my judgment, the Secretary of State was entitled to reach those conclusions, and the reasons given for them are adequate. Even if he is open to criticism for his approach to the opinions of Jelena Markovic, those opinions at their highest would not, in my judgment, make any significant difference to the claim.[43]The further representations dated 8th December 2004 are, for the most part, an elaboration and reassertion of earlier submissions. The letter dated 5th December 2004 from Dr Hudson and the UNHCR letter of 24th November 2004 add little or nothing of substance to the previous evidence. Insofar as they do refer to new matters they are not such as reasonably should dissuade the Secretary of State from his earlier decision. In particular, there is a marked absence of two features which might have made a difference:(i) any indication, following the events of March 2004, of objective evidence of persecution of Goranis,(ii) any indication that there is a material change for the worse in the position of Goranis as compared to that which prevailed at the time of the IAT decision on 22nd November 2003.[44]There is reference in the UNHCR letter to the need for members of an ethnic minority travelling to an end point from Pristina having to conceal their identity, but this was at odds with objective evidence that people regularly travel from their enclaves to Serbia for various reasons and with no evidence of substantial difficulty. Further, in my judgment the reality in this case is that the claimant was found by the IAT to have no personal reason, despite the tragedies in his family, to fear ill-treatment as an individual in Kosovo over and above the general disadvantages suffered by Goranis in that country. The IAT concluded that those disadvantages fell short of persecution or infringement of Article 3.[45]As regards events after that date, the Secretary of State was entitled to his view that they did not significantly alter the situation affecting Goranis in Kosovo; a situation about which the IAT had made undisturbed findings. The Secretary of State gave adequate reasons for his views in the refusal letter of 18th September 2004, and in relation to the later submissions in the detailed grounds of defence. Accordingly, for those reasons, this claim must fail.[46]MR GRODZINSKI: My Lord, I am grateful. Can I give two observations. With respect, they are in relation to something which your Lordship said in judgment. You Lordship described Professor Hathaway as being an expert before the Tribunal. In fact Professor Hathaway is a leading academic commentator on the Refugee Convention. There was no report from him before the Tribunal, but there was a report from Dr Hudson which may have made reference to Professor Hathaway.[47]MR JUSTICE GIBBS: I am sorry, I should have spotted that. I will make the appropriate alteration in the perfected transcript.[48]MR GRODZINSKI: I am grateful, my Lord. The second point is that I am not sure that I did make the positive submission that little weight ought to be accorded to Mrs Markovic's observations. I did say that, taken at their highest, they did not assist the claimant.[49]MR JUSTICE GIBBS: I may have in ferred from that expression -- when an applicant uses the expression "even taken at its highest", there is an inference as to the weight to be attached to it in any event, but if you wish me to delete that as a submission, out of deference to Jelena Markovic, I will do so.[50]MR GRODZINSKI: I am very grateful, and I have no application for costs or any others. Thank you very much, my Lord.[51]MR PRETZELL: My Lord, there is one further matter. If I recall your Lordship's summary of my learned friend's submissions correctly, you referred to a UNHCR report of August 2004, and made reference to paragraphs A4 and B4. My Lord, my understanding was that that came from the June 2004 report.

MR JUSTICE GIBBS: From what, sorry?

[53]MR PRETZELL: A June 2004 UNHCR report, my Lord.

MR JUSTICE GIBBS: I think that is right.

[55]MR GRODZINSKI: (Pause). Yes, it is right, my Lord.

MR JUSTICE GIBBS: Thank you for those amendments.

[57]MR PRETZELL: My Lord, this matter is legally aided and I would ask for an assessment.[58]MR JUSTICE GIBBS: There will be an assessment. Thank you both.