Case summaries

For the purposes of Art 1A(2) of the 1951 Refugee Convention a person is “of” or “has” a nationality where it is established that  he or she is already of that nationality or he or she is not of that nationality but is entitled to it.  The person should not be considered to hold a nationality if he or she only “may” be able to acquire it.

In assessing nationality in claims for refugee status, nationality is a matter for the State in question’s law, constitution and (to a limited extent) practice which should be proved by evidence and decided on, as a matter of fact, by the court deciding the protection claim.  In considering whether a person is a national or is entitled to a nationality of a second State, the person must use their “best efforts” to clarify their status.  The evidence of the attitude of a State towards a person who is seeking not to be removed to that State may be of very limited relevance.

The Court examined the issue of when the refusal of the applicant’s State of nationality to provide documents to allow her to be readmitted to that State represents a denial of the applicant’s nationality and, consequently, provides a basis for a claim for asylum. The Court held that the deprivation of nationality can constitute persecution. It further held that concepts of de jure and de facto nationality, applied by the Tribunal in the appeal, were likely to obscure the question of whether the applicant had a well-founded fear of persecution. It held that the correct standard of proof in respect of the issue of re-documentation will usually be the balance of probabilities rather than a reasonable degree of likelihood. It further held that, to prove her case, the applicant was under a duty to take all reasonable steps in good faith to obtain documents from the authorities of her State of nationality.

The applicant was expelled from Russia on the basis of his religious activities and separated from his infant son as a result. While Russia attempted to justify this on the ground of national security, the Court held that sufficient evidence was not provided and that Articles 5, 8, 9 and 38 of the Convention and Article 1 of Protocol No. 7 had been violated.

The provisions regarding the establishment and operation of Refugee Centres do not constitute a basis for ordering foreigners to stay in the said Centres, under penalty of having the asylum application procedure halted, on the sole ground that the police authorities consider their applications for asylum to be manifestly unfounded. The Refugee Centres were not established as centres where foreigners would be obliged to live – under penalty of halting the process of examining their applications for leave to remain – until the process had been completed, if those foreigners wish to and are able to stay elsewhere during the procedure, unless the Administration states that the measure is necessary for a specific and fully justified reason of public interest.