Canaj v Secretary of State for the Home Department; Vallaj v Special Adjudicator [2001] EWCA Civ 782

Two Kosovar Albanian asylum seekers challenged decisions refusing them refugee status. The Court considered whether protection provided by UNMIK and KFOR in Kosovo satisfied Convention requirements, and whether the 'internal flight alternative' applied. Both applications were refused, confirming that international protection in Kosovo was sufficient and internal relocation principles only apply when returning to a different area from the claimant's home.

Facts

The applicants, Canaj and Vallaj, were Kosovar Albanians who sought asylum in the United Kingdom and resisted repatriation to Kosovo. Both left their villages in March 1999 when Serb forces invaded, returned briefly in June 1999 after KFOR and UNMIK assumed control, and subsequently fled to the UK. Vallaj had been beaten twice by Serbs whilst in Kosovo under UNMIK/KFOR administration and threatened with death if he did not leave.

Following UN Security Council Resolution 1244, governance of Kosovo was vested in UNMIK (United Nations Interim Administration Mission in Kosovo), supported by KFOR. UNHCR reported in March 2000 that the vast majority of Kosovar Albanians had returned and most remaining asylum seekers no longer had immediate protection needs.

Issues

Principal Legal Issues

1. Whether protection provided by UNMIK and KFOR, rather than by FRY as the country of nationality, could constitute sufficient protection under Article 1A(2) of the 1951 Refugee Convention.

2. Whether the standard of protection provided by UNMIK and KFOR met the requirements established in Horvath v Home Secretary.

3. Whether the ‘internal flight alternative’ or ‘internal protection alternative’ applied to these cases, and if so, what criteria governed its application.

Judgment

The Court of Appeal refused both applications for permission to appeal. Lord Justice Simon Brown delivered the principal judgment.

Protection by UNMIK and KFOR

The Court accepted that if protection is provided in practical reality by UNMIK and KFOR, this is capable of constituting protection for Convention purposes. The Court rejected the argument that protection was insufficient because fully functioning legal and judicial structures were not yet in place:

It is perfectly plain that Lord Clyde did not have this type of case in mind when discussing sufficiency of protection in the very different situation arising in Horvath – persecution of Roma gypsies by skinheads in Slovakia.

The Court noted it would be remarkable if UNHCR were advising returns whilst protection was insufficient for Convention purposes.

Internal Flight Alternative

Regarding Canaj’s argument that any case where persecution exists anywhere in the country of nationality triggers the internal flight alternative, the Court firmly rejected this:

As a matter of principle it would be remarkable were it necessary to ask in every case: is there a part of the claimant’s home country in which he would be unsafe? That would be an entirely hypothetical and academic question if in fact the claimant had never been there and was never going to be returned there.

The Court confirmed that the internal protection alternative only arises when a claimant is being required to relocate from their home area to a different part of their country:

Why ever should it be ‘unduly harsh’ to expect a claimant to return to live in his own home area once it is accepted that it is safe for him to do so?

Vallaj’s Past Persecution

The Court distinguished Demirkaya, holding that whilst past persecution may be evidentially probative of future risk, here the Special Adjudicator properly found that Vallaj could adjust his way of life to avoid future persecution without relocating to a different area.

Implications

This decision provides important guidance on several asylum law principles. It confirms that protection provided by international bodies with de facto control over territory can satisfy Convention requirements. It clarifies that the internal flight alternative only applies where relocation to a different area is contemplated, not where return to the claimant’s home area is safe. The judgment also confirms that reasonable lifestyle adjustments to avoid persecution do not engage internal flight alternative considerations.

The Court acknowledged that this judgment, though refusing permission to appeal, may need to be cited in future cases involving Kosovar Albanians and more broadly regarding the internal protection alternative.

Verdict: Both applications for permission to appeal were refused. The Court upheld the IAT’s decision in Canaj’s case and Dyson J’s dismissal of Vallaj’s judicial review application.

Source: Canaj v Secretary of State for the Home Department; Vallaj v Special Adjudicator [2001] EWCA Civ 782