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	United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> Secretary of State for the Home Department v NS [2002] UKIAT 01257 (29 April 2002) URL: http://www.bailii.org/uk/cases/UKIAT/2002/01257.html Cite as: [2002] UKIAT 01257, [2002] UKIAT 1257

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Secretary of State for the Home Department v NS [2002] UKIAT 01257

HX-04173-2001

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 25 March 2002

Date Determination notified: 29 April 2002

Before
Mr S L Batiste (Chair) Mrs M L Roe
Between

 

Secretary of State for the Home Department	APPELLANT
and
NS	RESPONDENT

DETERMINATION AND REASONS
1. The Appellant appeals, with leave, against the Determination of an Adjudicator, Mr H MacLeman, allowing the appeal of the Respondent, a citizen of Azerbaijan, against the decision of the Appellant on 8 January 2001, to Issue Removal Directions to an Illegal Entrant: Application for Asylum Refused.
2. Ms A Holmes, a Home Office Presenting Officer, represented the Appellant. Mr S Symonds of the Refugee Legal Centre represented the Respondent.
3. The facts are that the Respondent left Azerbaijan in 1988/9 and lived subsequently in Russia and Ukraine before coming to the UK on 23 February 1999 and claiming asylum. The Adjudicator found that his movements to Russia and the Ukraine and then to the UK had nothing to do with a fear of persecution.
4. The grounds of appeal can be simply stated. Having found that the Respondent was not credible, the Adjudicator nevertheless allowed his appeal giving as his only reason the Respondent's ethnicity. This would mean that all ethnic Armenians in Azerbaijan have a well-founded fear of persecution per se and the background material does not support this.
5. Ms Holmes submitted that if the Adjudicator did not believe the Respondent had faced past persecution in 1988 in Azerbaijan, when the situation was less calm than today, it is inconsistent that he would face persecution now. The determination stated that many ethnic Armenians could establish a claim for persecution but does not give reasons why the Respondent should be in that group. The background showed that there are no politically motivated disappearances now and a number of POWs from the war of 1988-92 had been released. There were reports of some discrimination but these did not cross the threshold of severity to establish persecution. The overwhelming majority of Armenians in Azerbaijan were women because the men had left during the war to avoid conscription. The reported discrimination was not so much due to race but to gender and social status. NGOs are active and there is a pattern of people fighting for their rights. Armenians are integrated into society and some hold senior positions. There are two regions where there are no reported problems for Armenians.
6. Mr Symonds submitted that during the 1988-92 war there had been a large scale exchange of population between Azerbaijan and Armenia on ethnic lines. Of the 10,000-40,000 Armenians presently in Azerbaijan, 98% were women, mostly married to Azerbaijanis, and therefore there were only a few hundred Armenian men in the country. This was not a large enough number to cause reported difficulties. The Adjudicator had asked the right questions. He found that most men had been driven out a decade ago and there was no evidence of any welcome for their return. Indeed a recent report from the Azerbaijan Parliament shown there was still much passion about alleged war crimes committed by Armenians and tension between Armenia and Azerbaijan. If problems for Armenians in Azerbaijan today were due to social status and lack of a support network, the Respondent would have no status or support on return. Human rights in Azerbaijan are poor and the Respondent could face bullying and intimidation. Displaced Azerbaijanis who had returned to Azerbaijan during the war did not live in good conditions and the Respondent would fare no better than them.
7. We have first assessed the background material for ourselves. It reveals that the war in 1988-92 did indeed result in a major ethnic migration with most ethnic Azerbaijanis returning to Azerbaijan and most ethnic Armenians returning to Armenia. There is an informative report of 2000 by a Mission to Azerbaijan, Armenia and Russia to assess the current condition of the Azerbaijani and Armenian minorities. It reflects the thrust of the other background material and offers useful detailed insights into sometimes differing views. On balance it suggests that the main exodus of Armenian men in 1988-92 was to avoid conscription or involvement in the war. However feelings on both sides must have run high and that would have been another factor in the exodus. There were serious atrocities committed in that war and memories of them are still raw as can be seen from a recent report from parliament. People involved in the fighting have had problems but there is evidence of the release of POWs. However nowadays in general Armenians are either totally integrated or totally isolated and there is no systematic persecution of them. The passions of the past between the communities have given way to a lingering sense of unease. The antagonism of the past has given way to reasonable neighbourly relations. Armenians mainly live in the regions of Semkir and Goramboy and there are no problems for them there. There may in the country at large be some discrimination for a variety of reasons but the evidence does not establish that it is generally evident on a day-to-day basis or sufficient to cross the threshold of severity required for persecution.
8. Having made this background assessment we have examined the words used by the Adjudicator in the determination. He said

   "The level of discrimination against ethnic Albanians is not low level. It has been sufficient to drive out almost all of them out of the country. I do not find any evidence that the country has begun to welcome their return. It appears that many ethnic Armenians may be able to establish a well-founded fear of persecution if returned to Azerbaijan, which is the issue before me. As I have found myself unable to agree with the Respondent's view of the background evidence, it follows that I conclude that the Appellant if returned to Azerbaijan would be at risk both of persecution for reasons of race and of treatment contrary to Article 3 of the Human Rights Convention."

9. We then turn to the determination. It appears to us, despite Mr Symonds' assertion, that the Adjudicator has not asked the right questions. He placed great weight on the mass exodus of Armenians in 1988-92 and said they were driven out but did not make any attempt to assess whether their leaving was due to a fear of persecution or a desire to avoid conscription and involvement in the war. He did not relate this to his finding that the Respondent left Armenia for a reason other than persecution. He said that discrimination was not low level but did not say what elevated such discrimination into persecution. He erred significantly in applying the test of whether the Azerbaijan authorities would welcome the Respondent's return. The issue on which he ought to have focused is whether the Respondent would now have a well-founded fear of persecution for a Convention reason. He was contradictory in finding that many ethnic Armenians may be able to establish a well founded fear of persecution but not then explaining who would not and why, and giving reasons for his finding that the Respondent fell into the group which he did.
10. The Adjudicator's conclusion that the Respondent has a well-founded fear of persecution is fatally undermined by these errors and cannot stand. We are however in a position to be able to cure the defects and accordingly there is no need to remit the appeal for rehearing by another Adjudicator. We have had the benefit of having been able to assess a wide range of background material. Our findings as to the background context are as stated above and lead us to the conclusion that an ethnic Armenian cannot now establish, even to the low standard of proof applicable, a well founded fear of persecution on return to Azerbaijan on the grounds of ethnicity per se. Of course each case must turn on its own facts and some may have merit. In this appeal however, the Adjudicator has rightly found on the evidence and his assessment of credibility that the Respondent has not suffered past persecution. There are no specific matters, which set the Respondent apart from other ethnic Armenians. There is no specific reason why he personally should face any exceptional risks. There is no suggestion that he was involved in any war crimes. He may well face difficulties on return in getting established as the country is facing considerable economic problems, though it has rich oil reserves. However, these difficulties do not even in aggregate, cross the severity threshold to constitute persecution or a breach of Article 3.
11. We find therefore that the Respondent has failed on the evidence to establish at the low standard of proof applicable that if returned to Azerbaijan, he would have a well-founded fear of persecution or would be at risk of a breach of his rights under Article 3 of the Human Rights Convention
12. For these reasons, this appeal is allowed and the original decision of the Appellant to issue removal directions and refuse asylum is upheld