UK - Court of Appeal, 2 April 2009, MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289

Facts:

The applicant was an Ethiopian national of Eritrean origin who had applied for asylum in 1999.  She had left Ethiopia travelling on her own passport; however she no longer had her passport. Her case had a long procedural history. At the hearing, her case was that she feared persecution on the basis that the Ethiopian authorities would not provide documents to allow her to be readmitted to Ethiopia. She accepted that if the Ethiopian authorities would allow her to return she would not have a fear of persecution in Ethiopia.

Decision & reasoning:

The Court of Appeal held that the central issue in the case was whether the Ethiopian authorities would admit the applicant. It dismissed the appeal on the basis that the applicant had not provided the required evidence to show that the Ethiopian authorities would not admit her. In so doing, the Court made a number of findings.

First of all, the Court held that the use of the concepts of de jure and de facto nationality, although not an error of law, were not helpful. It held that “[i]n this case the issue was perceived to be whether she would face the risk of being denied her status as a national, it being assumed that this would, if established, constitute persecution to the requisite standard. To have recourse to concepts of de jure and de facto nationality is likely to obscure rather than to illuminate that question”.

Secondly, the Court held that the correct standard of proof in this “highly unusual case” was the balance of probabilities rather than a reasonable degree of likelihood. It held that “it is a question which can, at least in this case, be put to the test. There is no reason why the applicant should not herself make a formal application to the embassy to seek to obtain the relevant documents. If she were refused, or she came up against a brick wall and there was a failure to respond to the request within a reasonable period such that a refusal could properly be inferred, the issue would arise why she had been refused. Again, reasons might be given for the refusal. Speculation by the [Tribunal] about the embassy's likely response, and reliance on expert evidence designed to assist them to speculate in a more informed manner about that question, would not be necessary.”

Thirdly, the Court held that “where the essential issue before the [Tribunal] is whether someone will or will not be returned, the Tribunal should in the normal case require the applicant to act bona fide and take all reasonably practicable steps to seek to obtain the requisite documents to enable her to return. There may be cases where it would be unreasonable to require this, such as if disclosure of identity might put the applicant at risk, or perhaps third parties, such as relatives of the applicant who may be at risk in the home state if it is known that the applicant has claimed asylum. That is not this case, however. There is no reason why the appellant should not herself visit the embassy to seek to obtain the relevant papers. Indeed…she did so but wrongly told the staff there that she was Eritrean.”

Fourthly, the Court considered the cases of EB (Ethiopia), Revenko and Adan, Nooh, Lazarevic and Radivojevic and held that the deprivation of nationality can constitute persecution, depending on the consequences that loss had for the individual. EB (Ethiopia) was not authority for the proposition that the arbitrary deprivation of nationality was prima facie persecution.

Outcome:

Appeal dismissed.

Observations/comments:

The factual and legal issues in this case were considered in ST (Ethnic Eritrean – nationality – return) Ethiopia CG [2011] UKUT 00252.