Hussein and Another (Status of Passports: Foreign Law)
| Jurisdiction | UK Non-devolved |
| Judge | Mr CMG Ockelton |
| Judgment Date | 30 July 2020 |
| Neutral Citation | [2020] UKUT 250 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 30 July 2020 |
[2020] UKUT 250 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Mr CMG Ockelton (Vice President)
Mr H Semega-Janneh instructed by Duncan Lewis Solicitors, for the Claimant and Applicant;
Mr Clarke, Senior Home Office Presenting Officer, for the Secretary of State.
CS and Others (Proof of Foreign Law) India [2017] UKUT 199 (IAC)
R (on the application of MK) v Secretary of State for the Home Department [2017] EWHC 1365 (Admin); [2017] Imm AR 1425
European Convention on Human Rights, Article 8
Evidence burden of proof — documentary evidence status of passports — expert evidence foreign law — human rights — Article 8 of the ECHR family and private life proportionality — adult relative
The instant proceedings constituted the appeal of Mr Hussein (“the Claimant”) with permission, against the decision of the First-tier Tribunal (“FtT”), and the application of Mr Abdulrasool (“the Applicant”) for permission to appeal, together with his appeal if permission was granted.
The Claimant and the Applicant were father and son: the latter was born in 2000. They made asylum claims, which were refused. The Applicant also claimed that he was so dependent on his parents that it would be disproportionate to remove him from the United Kingdom. The Claimant's wife and two minor children were included in his claim as his dependants. The FtT did not accept the Claimant's account of events supporting his asylum claim. It decided that he was a national of Tanzania and could be safely returned to Tanzania. The FtT also rejected the Applicant's asylum claim and concluded that there was no good reason under Article 8 of the ECHR why he should not leave the United Kingdom and return to his country of nationality, which was Kenya. The FtT dismissed both appeals.
On application for permission to appeal, the Claimant challenged the FtT's reasoning leading to its conclusion that he was a national of Tanzania. The Applicant challenged the FtT's conclusion on the basis that it did not appreciate that although over 18 he should have been treated as a dependant of his parents for Article 8 purposes. Permission was granted to the Claimant but refused to the Applicant.
Before the Upper Tribunal, the principle question related to the Claimant's nationality. He was born in Somalia but entered the United Kingdom using a Tanzanian passport issued in 2017. He claimed that he was not entitled to the Tanzanian passport but had obtained it while in Kenya simply by paying money to acquire a permit to work in Kenya. The Claimant used the passport to travel internationally on several occasions before arriving in the United Kingdom in December 2018. He submitted first that his asylum claim should be considered on the basis that he was a national of Somalia. That argument was based on assertions about the law of Tanzania and, given he was born in Somalia, the presumption of the continuation of Somali nationality despite the production and use of a Tanzanian passport. Secondly, he submitted that he should not in any event be returned to Tanzania, because he might have to suffer the consequences of what he claimed was his fraudulent acquisition and use of a Tanzanian passport.
Regarding the Applicant, the parties accepted that the evidence before the FtT was sufficient to establish dependence and, to that extent, the FtT was in error.
Held, dismissing the appeals:
(1) The Claimant's submissions regarding nationality were rejected. First, foreign law was a matter of fact and must be proved by evidence. It was not sufficient to produce Tanzanian statutes and assert that the statute represented the whole of the law on the subject. Foreign law needed to be proved by expert evidence directed precisely to the questions under consideration, so that the Tribunal could reach an informed view in the same way as anybody taking advice on an unfamiliar area of law. Secondly, there was no presumption of the continuance of nationality. On the evidence, a person who showed that he had a particular nationality at birth might not be subject to any serious challenge about still having that nationality, if there was no evidence to the contrary: but where there was evidence of a different nationality the matter had to be determined on the evidence, and in a refugee claim the burden of proof was on the claimant. Passports had international recognition as assertions and evidence of nationality. It was simply not open to an individual to opt out of a reliable passport system by denouncing his own passport; and it was not open to any State to ignore the contents of a passport simply on the basis of a claim by its holder that the passport did not mean what it said. Therefore, a person who held a genuine passport, apparently issued to him, and not falsified or altered, had to be regarded as a national of the State that issued the passport (paras 9 – 13).
(2) In the instant case, there was no reason to think the Claimant's passport was not exactly what it appeared to be. It was clear evidence that the Claimant was a national of Tanzania, and it was evidence at such a level that the Secretary of State for the Home Department was not entitled to treat the Claimant as not being a national of Tanzania. It followed that he fell to be treated as a national of Tanzania for the purposes of his asylum claim. He had no well-founded fear of persecution in Tanzania. He claimed that he would be subject to prosecution there for passport offences, but that would not in any event be a fear of persecution as his claim in relation to his passport was that he obtained it simply in order to benefit from the possibility of illegally obtaining work in Kenya. Any punishment would be for that and would not be persecution for a “Convention reason”. In any event, there was no proper basis for saying that he would be subject to any process in relation to his passport, because there was no reason to suppose that there was anything wrong with his use of a Tanzanian passport. The FtT reached unchallenged views on the Claimant's credibility. The view that the Claimant was a Tanzanian national was one that the FtT was bound to reach on the evidence before it. The Claimant's appeal was dismissed (paras 14 – 17).
(3) Regarding the Applicant, the FtT's error...
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