IM (Sufficiency of Protection, Roma) Romania [2002] UKIAT 04872 (15 October 2002) [2002] UKIAT 04872

UKIAT
IM (Sufficiency of Protection, Roma) Romania [2002] UKIAT 04872 (15 October 2002)
[2002] UKIAT 04872 · 2002-10-15
1. The First Appellant, a citizen of Romania, was given leave on 16 May 2002 to appeal against the decision of an Adjudicator, Mr J H Bryan, promulgated on 15 April 2002, dismissing his appeal, and that of his three dependent family members against the decision of the Respondent refusing asylum and human entitlements.At the hearing before us the Appellant was represented by Mr Chatwin, instructed by Corbin and Hassan, solicitors, and the Respondent was represented by Mr Sheikh, Home Office Presenting Officer.3. The Appellant's claim is that, as a Roma, he and his family suffered severe discrimination and harassment amounting to persecution in that he was arrested by police on two occasions and ill treated on the first of those two occasions. His children were also expelled from school because of their Roma ethnicity.4. Mr Chatwin, in very lengthy submissions, submitted that during the course of the hearing, at which a Home Office Presenting Officer was present, the Adjudicator interfered improperly in the proceedings by asking questions of the Appellant amounting to a cross examination. He submitted that the Adjudicator failed to follow the guidelines set out in the case of Surendran . He also submitted that the approach of the Adjudicator to certain documentary evidence, namely a summons, was flawed. He referred to the case of Tanveer Ahmed and submitted that the document ought to have been taken to be what it purported to be in the absence of evidence to the contrary.5. In support of his submissions Mr Chatwin relied upon a witness statement from Ms Joanna Wood who had appeared on behalf of the Appellant at the hearing before the Adjudicator. He submitted that if the Adjudicator was unclear about any of the evidence he should have brought those matters to the attention of the representative and invited her to deal with them. Instead he asked a serious of probing questions more in the line of cross examination than clarification. He submitted that credibility was not in issue as the Home Office had not questioned it in the Refusal Letter. He further submitted that because of the procedural failings the matter should be remitted to another Adjudicator for a fresh hearing.Mr Sheikh submitted that there was no evidence to support the contention that the Adjudicator had acted outside the Surendran guidelines. A typed copy of the record of proceedings had been made available by the Tribunal to both parties and nothing in that indicated that the Adjudicator had acted improperly. There had been very lengthy examination in chief and the Adjudicator was entitled to ask questions. The Adjudicator was entitled to take his own view on credibility. In this regard Mr Sheikh directed our attention to paragraph 4 of the Surendran guidelines. Additionally, Mr Sheikh submitted, the police summons that was tendered at the hearing, was not referred to in the Refusal Letter, and he did not know when it was first produced. If it was only produced for the hearing, then the Adjudicator was entitled to, indeed obliged to, form a view on it. There was nothing in Surendran , in any event, which prevented the Adjudicator from declining to accept that evidence even if there was no Home Office Presenting Officer present at the hearing. Mr Sheihk submitted that it was not correct to state that credibility was not in issue at the hearing. Aspects of credibility had been in issue in the Refusal Letter. It had been stated that the Appellant was an economic migrant and this therefore put in issue the question of whether the Appellant was a genuine asylum seeker. The letter has also raised the issue that the Appellant had not claimed asylum in other countries in which he had found himself. Mr Sheikh further submitted that in asking questions the Adjudicator had not fallen into error. There is nothing in Surendran to prohibit that. The Adjudicator did not accept the center-piece of the Appellant's story. He gave clear reasons in each paragraph of the determination and could not be faulted. He concluded his submissions by saying that even if the Adjudicator had fallen into error, the objective evidence did not show any risk of persecution for the appellant in his home country. There may be discrimination against some Roma in Romania but the authorities there were taking and had taken steps to address it and provide protection to Roma. The treatment suffered by the Appellant had not amounted the persecution and he was not a risk of persecution in the future. He took the Tribunal to various parts of the Romania Country Assessment (CIPU report) to show what measures the government had adopted in Romania to deal with these issues.The evidence in support of Mr Chatwin's submissions regarding improper interference in the proceedings is the witness statement of Ms Wood. That appears at pages 171 to 183 of the Appellant's bundle. The statement shows that Ms Wood drew the Surendran guidelines to the attention of the Adjudicator at the beginning of the hearing and she also provided him with a copy of them. The relevant parts of her statement are as follows:
"3. The appellant gave oral evidence. After this was completed, the Adjudicator asked the Appellant a number of questions.
4. I interrupted the Adjudicator after a series of questions were asked and reminded him of the Surendran guidelines. I said that it would be more appropriate if he directed me to the matters upon which he required clarification. The Adjudicator replied "… think you're OK on this" and proceeded to ask further questions. I refer the court to page 6, paragraph 2 of my notes of hearing. I attach the notes to this statement as exhibit 1.5. I interrupted the Adjudicator a second time. The Adjudicator replied "I'm asking open questions to get a clearer picture. I'm not cross examining." He continued with further questions. I refer the court to page 9 of my notes of hearing".8. We precede our considerations of the matters in issue in this appeal by commenting that the absence of a Home Office Presenting Officer is unfortunately not a rare event. Proceedings before an Adjudicator should be adversarial and the lack of a Presenting Officer does create difficulties for adjudicators. It is for this reason that the Tribunal in Surendran sought to lay down some guidelines to assist adjudicators. As the Tribunal said in Surendran , the function of an adjudicator is to review the reasons given by the Home Office within the context of the evidence before him and the submissions made on behalf of the appellant and then come to his own conclusions. An adjudicator is not bound to remain within the constraints of the matters raised in the Refusal Letter. Neither is the Adjudicator bound to accept that the Appellant is credible because credibility has not been challenged by the Home Office. As the Tribunal made clear in Surendran , if the Adjudicator considers that the papers raise matters of credibility he should point these matter out to the representative and ask that they be dealt with. But this should not mean that the Adjudicator is not allowed to ask any questions of the Appellant to clarify his evidence, if necessary.9. Pages 188 to 190 of the Appellant's bundle is a typed document produced by Ms Wood to show the questions asked by the Adjudicator at the hearing. We have also had regard to the typed record of proceedings produced by the Adjudicator. At the top of page 4 of that record, it is noted "Adjudicator question: If you lost touch with your daughter in Prague you couldn't stay with her?" to which a response prefaced with the letter "A" is recorded. Thereafter appear a string of approximately 32 questions and answers, each prefaced either with "Q" or "A".. There is nothing to indicate who asked these questions. However, they largely correspond with the questions recorded by Ms wood on pages 88-190 of the bundle as questions asked by the Adjudicator. We accept that they were. It would appear that in transcribing his handwritten notes the Adjudicator has identified one such question as having been asked by him but has omitted to identify that the remaining 32 or so questions set out in the record of proceedings thereafter were also asked by him.10. A large number of questions were asked by the Adjudicator. Clearly the Adjudicator must not adopt the role of cross examiner in these circumstances; however, he was entitled to ask questions for the purposes of seeking clarification. Some of these questions might be considered to be questions seeking clarification and are unobjectionable. Others appear to have been irrelevant. In this category we place the questions asked about the Appellant's married son and his family in the united Kingdom, and the eye problems of the Appellant's wife. Others regarding matters already raised by the Appellant in his evidence, such as contact with the priest and difficulties in getting a place to live in a gypsy settlement on return, should more properly have been raised with Ms Wood for her to deal with by way of further questions of the Appellant.11. Mr Chatwin complains specifically about five questions as having been inappropriate. He submitted that on pages 88 –190 of the bundle Ms Wood has identified those questions with an asterisk. The first asterisk on page 188 marks a sentence which reads "I worked for Romanian Railways". It is not clear from the documents whether it is alleged that this was a question or a statement from the Appellant, and Mr Chatwin was unable to clarify this. Similarly, on page 190 there is a further asterisk against the sentence "They put all of us into a big tractor with a trailer and they transported us to the village – that's where the police was". Again, this does not appear to be a question but rather an answer. The following questions appear on the remaining pages and they all bear an asterisk:*SA asked whether A had got help from church, with regard to authorities?*Member of gypsy organization?*Organisations there to help you? Know about these?*Many gypsies – didn't know them beforehand?*Arrested with other people?Mr Chatwin has submitted that the Adjudicator should not have asked these questions and that in asking them he did not adhere to the Surendran guidelines.12. Of these five questions, two related to the camp at Bratca and the arrest of the Appellant, and a third related to help provided to help provided by the church, all matters about which the Appellant had given evidence. We take the view that the Adjudicator was entitled to ask these questions about evidence and the questions appear to us to be in the nature of inviting the Appellant to repeat or clarify evidence already given. Two of the questions relate to gypsy organizations, matters about which the Appellant had not given any evidence. These were matters relevant to the matter before him but, following the Surendran guidelines, the Adjudicator should more properly have invited Ms Wood to deal with these matters.13. Overall, whilst the Adjudicator was entitled to ask some of the questions he did as questions seeking clarification, we agree with Mr Chatwin that in places the nature and extent of his questioning does appear to have been more in the nature of a cross examination.14. Mr Chatwin also submitted that the Adjudicator dealt in an inappropriate manner with the police summons which had been tendered in evidence. He argued that, in the absence of evidence that it was not genuine, it should have been accepted as what it purported to be. He referred us to the case of Tanveer Ahmed as support for this proposition. We not accept Mr Chatwin's submission that such a proposition was put forward by the Tribunal in that case. An Adjudicator is entitled to give such weight as he deems fit to a document which is presented in evidence, notwithstanding that there may be no challenge to the document by the Home Office. Clearly the Adjudicator did not believe the Appellant's account of what had occurred. Against that background and in the light of the matters relating to the document which were analysed by the Adjudicator in paragraphs 28 and 29 of the Determination, we have concluded that the Adjudicator was entitled to decline to give any weight to this document. We accept that he has not expressly stated this in the determination but that is clearly what he has done. We should mention at this point, however, one small matter which has come to our attention. In reading the Adjudicator's typed record of proceedings, the record appears to indicate ( at the bottom of page 6 of the record) that the Adjudicator might have said (during the course of Ms Wood's submissions) that he "thought it [ the summons] was genuine". It has not been part of the Appellant's case that the Adjudicator, during the course of that hearing, led the Appellant's representative to believe that the document was accepted as genuine and then changed his mind when writing the determination. Clearly the Appellant's representative at the time, Ms Wood, took detailed notes of what occurred at the hearing and we would this matter to have been pursued before us if that is indeed what the Adjudicator said. The fact that no such complaint has been made leads us to believe that the typed record of proceedings may not reflect the totality of the exchange between the Adjudicator and Ms Wood. Nevertheless, for reasons, set out later in this determination, whether or not the conclusions of the Adjudicator regarding the summons may properly be criticized in this regard, this issue would not affect the outcome of this appeal.15. Before leaving the matter of the summons, we note Mr Chatwin's submission that the assessment of the summons was based to a considerable degree upon the Adjudicator's overall conclusion on the credibility of the Appellant, and that this conclusion should not be permitted to stand, having been based to a certain extent on answers elicited from the Appellant during overlengthy questioning of the Appellant by the Adjudicator, which included several inappropriate questions. While we agree that the Adjudicator can be criticized for asking some irrelevant questions and also for questioning the appellant on matters which more properly should have been the subject of an invitation to Ms Wood to deal with, we conclude that in the main the Adjudicator based his conclusions on credibility on matters in respect of which the Appellant himself had given evidence in the form of evidence in chief or documentary evidence or as a result of questions which could in our view properly have been regarded as questions asked for clarification. In paragraph 20, the Adjudicator referred to the Appellant's difficulty in recalling basic details of events; in paragraph 21 the Adjudicator noted the lack of detail of the demonstration in which the Appellant claimed to have participated and in paragraphs 22 and 26 he noted the same lack of detail regarding the incident with the shopkeeper and the arrest at the gypsy encampment. He also disbelieved the Appellant's account of his escape from the police station by leaping from a first floor open window, noting that this was a man of 57 years of age who claimed to have been recovering from broken ribs; these are all matters which the Adjudicator was properly entitled to take into consideration in his assessment of the Appellant's story. In short he disbelieved the account given by the Appellant and in our view he was entitled to do so. The Adjudicator has set out in some detail his reasons for disbelieving the Appellant's story and we see no reason to interfere with this conclusion. We do not regard the questioning of the Appellant by the Adjudicator, inappropriate as it may have been in places, as a cause for invalidating the Adjudicators conclusions that he did not believe most of the account given by the Appellant. We note here that the Adjudicator did accept part of the appellant's claim – namely that part relating to the loss of his job, the expulsion of his children from school and an increased level of harassment at that time.16. Mr Chatwin also submitted that credibility was not in issue in the Refusal Letter. This is correct. He then referred us to paragraph (5) of the Surendran guidelines which states as follows:
"Where no matters of credibility are raised in the letter of refusal, but from a reading of the papers, the special adjudicator himself considers that there are matters of credibility arising therefrom, he should.. ..point these matters out to the representative and ask that they be dealt with, either in examination of the appellant or in submissions "
We note that the Adjudicator did not specifically draw any issues of credibility to the attention of the representative. Mr Chatwin submitted that he should have done so given that in his determination he rejected much of the Appellant's story on the grounds of credibility. The difficulty we have with this submission is that while it draws on the Surendran guideline set out above, it is clear from the determination that the Adjudicator comprehensively disbelieved the centre piece of the Appellant's story. This conclusion on credibility was one arrived at having seen and heard the Appellant give evidence and in the light of the whole of the evidence presented. It is largely based on lack of sufficient detail overall and a lack of general credibility with regard to the individual components of the account. In a situation such as this it is difficult to see how an Adjudicator could raise this with the representative at the hearing and ask her to respond. Notwithstanding that no individual matters of credibility were raised in the Refusal Letter, (other than a statement that the Appellant's motives were those of an economic migrant), we conclude that the Adjudicator was entitled to come to such an overall conclusion on credibility on all the evidence before him in these circumstances. The Surendran guidelines do not require an Adjudicator to reach a conclusion on credibility at the hearing and then, if adverse to the Appellant, rehearse his reasons to the representative and allow him or her to deal with them. The guidelines are directed to individual matters which the Adjudicator discovers in a reading of the papers and in respect of which the Appellant should be given an opportunity to address if they go to credibility and they have not been raised by the Home Office in the Refusal Letter. That is a different situation from one where the Adjudicator on a reasoned assessment of all the evidence presented by a representative at the hearing disbelieves the greater part of the Appellant's story, as occurred in this case.In any event, we have concluded that even if the totality of the Appellant's account were to be have been accepted, this appeal should in any event have been dismissed. It is not suggested on his behalf that violence towards Roma in Romania is state sponsored or state tolerated and the background evidence would not, in any event, lend any support to such a claim. While discrimination against Roma undoubtedly continues to exist on the ground, the government in Romania has taken several major initiatives to address the problems of the Roma minority. These are based upon a National Strategy for Improving the Condition of Roma adopted in April 2001. It includes measures for improving housing for Roma, increasing their participation in civic life including access to justice, facilitating access to public services and countering discrimination. At a local level police brutality does occur towards Roma but measures have been introduced to combat this including co-operation by the Romanian General Inspectorate of police with Roma associations, to develop a program to improve relations between Roma and police. APADO, the Lawyers Association for the Defence of Human Rights, runs a programme of juridical assistance to Roma. There is evidence to how that those responsible for violence against Roma are being dealt with by the judicial system. In July 1998 a court in Mures sentenced 11 persons who in 1993 burned 13 Romani houses, resulting in the deaths of 3 Roma, to 3 to 7 years imprisonment. Roma as a recognized minority are afforded protection under the constitution. Numerous Roma associations have been created to represent Roma, as to have political parties, and there is no evidence of government interference with their activities. There is an Ombudsman whose role is to protect rights and liberties of civilians and a Department for the Protection of National Minorities was set up in 1997. A National Office for Roma has been set up within this department. Measures have been taken to train police and eradicate abuses, particularly those against Roma community member ( page 48 of the bundle, ECRI Country report on Romania). Seminars and training courses on human rights in the administration of justice have been organised by the Centre for Human Rights and the Romanian Institute of Human Rights, targeting police trainers, among others. A National Council for Combating discrimination was set up in December 2001.18. The Home Office CIPU report shows that Romania has established a legislative framework to ensure effective judicial remedies for any person whose rights and freedoms recognized by the international Convention on Civil and Political Rights have been violated. The European Commission concluded in November 2001 that the government of Romania had made considerable advances in reforming its judiciary. We note, however, that judicial cases involving the police would appear to be tried in military courts which have been criticized for overlengthy investigations which are often inconclusive. The Romanian Helsinki Committee has reported and investigated numerous reports from individuals who claimed to have been ill-treated by the police in 2000. These accusations are by law investigated by the Military Prosecutors office. The General Inspectorate of Police is responsible for investigating police abuses and it cooperates with monitoring groups, albeit that it is uneven in its response to enquiries from monitoring groups. Notwithstanding these criticisms, there is no evidence to suggest that the protection and benefit of the judicial system and these procedures and systems are not available to Roma in Romania.19. This Appellant, if his story were to be accepted, was beaten up by the police in 1999, although he was not charged with any offence and as released after 3 days. He had difficulty filing a case about the police but he did not approach any of the Roma organizations or other government department set up to help Roma. We do not know why he could not take his case forward or why he was not able to register it. It need not necessarily be that he was not allowed to do so because he was a Roma.20. The actions of the police in arresting him and beating him in early 1999 was deplorable but the evidence does not show a real risk that such abuse was state sponsored or condoned . He was taken into the police station in August 1999 but not beaten, although he was threatened. He then escaped and ran away. He has presented a summons in evidence but we do not know what the possible penalty is for this or what the proceedings may be which might result from it. There is no evidence to suggest that there is a real risk the Appellant would be arrested on return . The summons speaks of sanctions under the penal code in case of failure to attend but no evidence has been presented to show those sanctions might be.21. The US State Department concluded in March 2002 that the Romanian government generally respected the rights of its citizens although it noted a poor record in investigation of police abuses, and discrimination against Roma, inter alia. Episodes of excessive use of police force occur in community as a whole although the government has made significant moves to reform the judicial system and protect and promote human rights among all elements of the community. Nevertheless, episodes of excessive use of police force and discrimination / harassment of Roma are reasonably likely to continue at present . It is appreciated that there has been, and still is, reluctance among some police to investigate. However the office of Human Rights Ombudsman has been established – an independent body to participate in the protection of fundamental rights and freedoms by examining actions, decisions or inactivity on the part of public administration bodies and several thousand complaints were received in 2000. There is growing public awareness of the role and function of the Ombudsman.22. As Lord Clyde remarked in Horvath , there is no absolute guarantee of safety. The obligation to protect must not be so interpreted as to impose an impossible and disproportionate burden on the authorities:
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the convention requires to have protected. More importantly there must be an ability and readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case."

Lord Stuart-Smith LJ said in that same appeal:

"In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and the courts to detect, prosecute and punish offenders……It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of democracy."
23. In October 2000 UNHCR stated that although Roma in Central and Eastern European countries are frequent victims of discrimination and on occasions victims of violence, conditions do not warrant the recognition of such asylum claims of a prima facie basis. Looking at the claim of this Appellant, we conclude that the Appellant has not shown that there is a real risk that he will be arrested on his return. As regards the possibility of future episodes of police violence, unfortunately the evidence shows that there is this risk for many sections of the population. However we are satisfied that the state of Romania offers appropriate protection, albeit that the main organs of investigation of complaints of police abuse, the Military Prosecutors Office and General Inspectorate of Police have been criticized as set out above. There is no evidence to show that they do not investigate complaints by Roma or discriminate against them in investigating complaints made by them. Criminal action has been taken against those who have committed violence against Roma as referred to above. There are also other channels available to take forward complaints – for example through other government organizations relating to human rights and through the Ombudsman's office.24. This appeal is dismissed

Ms S M Ward

Cited in 2 later judgments