Case summaries
The issue of an applicant’s nationality is integral to a claim for refugee status. In the great majority of asylum applications the nationality of the applicant is not in issue, but when it is put in doubt decision-makers must address it. Failure to do so would offend the nationality logic that underlies the refugee definition set out in Art 1A(2). The burden of proof in respect of nationality is on the applicant although the evidential burden may shift.
The 1951 Refugee Convention should not be interpreted so that a refugee sur place who has acted in bad faith is excluded from its protection and can be deported to his home country notwithstanding that he or she has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place. Although such an applicant’s credibility is likely to be low and the claim must be rigorously scrutinised, he or she is still entitled to the protection of the Convention if a well-founded fear of persecution is accepted.
The Court of Appeal held that an asylum-seeker unable to return to his country of origin may indeed be entitled to recognition as a refugee provided only that the fear or actuality of past persecution still plays a causative part in his or her presence here. Further, the refusal of the State of nationality to permit return can constitute persecution.