UK - Upper Tribunal (Immigration and Asylum Chamber), 1 July 2011, ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 252

Facts:

The applicant was an Ethiopian national, born in 1979, whose mother was Tigrigna and had her roots in Eritrea (which was then a province of Ethiopia). His father died in 1991 and he was brought up by his mother. In 1998, after war broke out between Ethiopia and Eritrea, his mother was held in a camp and then forcibly deported to Eritrea. In 1999, the applicant was detained by the Ethiopian authorities and beaten, being released with reporting and residence requirements. His ID card was taken. When asked to report again, he fled, claiming asylum in the UK in 1999. The Ethiopian embassy refused to provide him with documentation to facilitate his return.

Decision & reasoning:

The Tribunal allowed the appeal after an extensive review of the authorities and evidence. It also provided country guidance on how such cases should be considered in the future. 

First of all, the Tribunal held that, as a matter of domestic law, the issue of whether the Embassy of the applicant State of nationality will re-document to permit re-admittance was within its jurisdiction.

Secondly, the Tribunal held that, having regard to Art 9 of the Qualification Directive, it was “difficult to decide whether the mere removal of “the applicant’s] ID card crossed the threshold of persecution”. However, if that act was “placed in the context of what was happening to ethnic Eritreans in the summer of 1998 and views it by reference to the attitude evidenced by the Ethiopian authorities since that time towards persons in the appellant’s position, the removal of the card is part of an on-going deprivation of nationality that has had a very serious effect upon the appellant. Seen in that light, which is the only sensible way in which it can be seen, the action was persecutory”. 

Past persecution in the form of the arbitrary deprivation of citizenship may mean that it is relatively easy to show that present bureaucratic problems are part of a continuing pattern of hostility towards that person and that the deprivation of nationality for Convention reasons is, thus, on-going. It may also inform the view that a judicial fact-finder takes of difficulties that the person is reasonably likely to face on a hypothetical return, leading to a finding that the person would, in fact, face ill-treatment amounting to persecution on such a return. However, it was not accepted that past persecution had occurred, the Tribunal might find that the refusal of the consular authorities to accept return was not persecutory, because it might be because the applicant was not telling the truth about their lack of documentation or contacts and it may not, in fact, be any discriminatory element.

Thirdly, the Tribunal considered the authorities KK and Others, EB (Ethiopia), MA (Ethiopia), Revenko and Lazarevic and provided guidance on when the denial of return to the State of nationality constituted persecution. The Tribunal held that this was “an issue of fact, to be decided in all the circumstances of the particular case”. However, “the denial of a right of return is very likely to constitute persecution, in very many cases”. In particular “where persecution caused a person to leave the country of his nationality, the present denial of a right of return falls to be viewed as part of the overall ill-treatment of the person concerned, even though he would not today be at real risk of the kinds of persecutory treatment (here, detentions and beatings) that forced him to leave”. This was the case even though the applicant did not wish to return to Ethiopia.

Fourthly, the Tribunal, considered MA (Ethiopia) and held that “a person seeking to rely upon the denial of a right of return from the United Kingdom to his or her home country must take “all reasonably practicable steps to seek to obtain the requisite documents” to facilitate the person’s return. The test is not whether the applicant has shown there is a real risk that he or she would be refused a right of return for reasons engaging the Refugee Convention. Instead, the applicant must show, on the balance of probabilities, that all reasonable steps have been taken. It is then for the Tribunal to make findings as to the reasons for the embassy of the country concerned to enable the applicant to return as a national.

After considering evidence about the applicant’s attempts to obtain documentation from the Ethiopian embassy as well as expert evidence about that embassy’s practice, the Tribunal gave guidance on what would be reasonable to expect of applicants in these circumstances. It held that “it would in general be reasonable to expect a person asserting deprivation or denial of Ethiopian nationality, in order to make good a claim to international protection to approach the Ethiopian Embassy in London with all documentation emanating from Ethiopia that the person may have, including ID card, address, place of birth, identity and place of birth of parents, identity and whereabouts of any relatives in Ethiopia and details of schooling in Ethiopia. Failing production of Ethiopian documentation in respect of such matters, the person concerned should put in writing all relevant details, to be handed to the embassy.  Plainly, the requirement to take all reasonable endeavours does not entitle a person to portray themselves as Eritrean. On the other hand, if supplying the details that I have just described discloses an Eritrean connection (for example, place of birth of parent), there is no reason why that should be suppressed.”

Outcome:

Appeal allowed.

Observations/comments:

The Tribunal held, obiter dicta, that the standard of proof for assessing nationality was undecided.

The Tribunal provided country guidance on how such cases should be considered in the future.

Other sources:

Adjami and Harrington “The scope and content of Article 15 of the Universal Declaration of Human Rights”, Refugee Survey Quarterly [2008] 93.