KF (Removal directions and statelessness)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 07 June 2005 |
| Neutral Citation | [2005] UKIAT 109 |
| Court | Immigration Appeals Tribunal |
| Date | 07 June 2005 |
[2005] UKIAT 109
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
Mrs L H S Verity
For the Appellant: Ms R Brown, Home Office Presenting Officer; Mr P Patel at the resumed hearing.
For the Respondent: Mr J C Shah, instructed by Dozie & Co; Mr E Pipi at the resumed hearing.
KF (Removal directions and statelessness) Iran
This is an appeal by the Secretary of State against the determination of an Adjudicator, Ms P Lingam, promulgated on 26 March 2004. She allowed the Claimant's appeal on the basis of what were described as two preliminary issues: the Claimant's alleged statelessness and the invalidity of the removal directions.
The Claimant sought asylum in the United Kingdom in September 2003, not long after he entered illegally from Turkey. (The Adjudicator notes entry as being a year earlier, but that must be an error judging by the interview material and his claim to have left after the fall of Saddam Hussein.) He was born in 1972 in Iran. He and his parents were captured in 1976, when he was aged four, by Iraqi forces attacking Iran. They ended up in a camp in Iraq where his father died. He started working when he was fifteen and when he was eighteen, the Iraqi authorities issued him with a green paper, renewable annually. After the fall of Saddam Hussein, the camp was attacked by local people because of their Kurdish ethnicity. He and his family fled to Baghdad, where they hid until he left in fear of his life.
There was no dispute about the claim of birth in Iran or the circumstances which led to the Claimant being in Iraq. Since the end of the Iran-Iraq war, there have been disputed nationality issues between the two countries arising from the many refugees in their territories.
The Claimant said that he was no longer a citizen of Iran and objected to his removal there, and continued that he could not be returned to Iraq because he was a refugee from Iraq. The Secretary of State in his refusal letter of 4 November 2003 pointed out that many Iranian refugees had returned from Iraq, that many formal papers relating to birth or marriage issued in Iraq were recognised by Iran and that there were many Iranians Kurds who lived in the Kurdish areas of Iraq.
The Secretary of State refused asylum, said that his removal would not be contrary to the ECHR and sent a Notice of Decision which included, against the side note “ Removal Directions” the statement that “ Directions will be given for your removal from the United Kingdom to Iran”.
The Adjudicator described the endeavours made by the Claimant to obtain Iranian nationality papers. These appear only to have been made after this refusal. His letter to the Iranian Embassy dated 19 January 2004, though headed, at least in translation, “ Visa Entry”, makes it clear that the Claimant is seeking to return for good to the country where he was born, and has no documents or other nationality. It also described briefly how he came to be in Iraq and said that his parents had Iranian nationality and papers. He had filled in the visa application form with which he was issued and said on it that he wanted to stay for good.
Neither we, nor the Adjudicator so far as we can see from the file of material before her, had the complete form. There may have been questions about the parents' nationality which are on the part which we do not have. But the Claimant, although answering the question about his birthplace by writing “ Iran”, simply put a line through the place for answers to the questions as to his past or present nationality. So it contained no apparent assertion as to nationality or that he was seeking the papers as a national. There may well be other relevant questions but we have not seen them because only the one face of the form was copied.
The Adjudicator said that the Claimant had said that when he attended at the Iranian Embassy with the form, he was told that his application had been unsuccessful. She continued, at paragraph 11:
“There are also telephone attendance notes by his solicitors but it is regretful that the person who made the calls did not see fit to put in an affidavit regarding the calls made to the UNHCR and the Iranian Embassy.”
There is one fifteen minute call to the Embassy which does not appear to have dealt with this Claimant by name; rather it was a general request for information about how a national who did not have the necessary documents could return to Iran. The answer was that a refugee from Iraq would be allowed to return to Iran, but needed proof of identification. They did not have a written document saying that. There was no written follow-up to the refusal or to the conversation. The UNHCR rather vaguely said that it thought that a document would be required for an Iranian refugee from Iraq to return.
The Adjudicator then set out two extracts from the CIPU Report saying:
“Nevertheless the CIPU Report at paragraphs 5.7 confirms ‘citizenship is based upon the Iranian Civil Code which stipulates that in general birth within the territory of Iran does not automatically confer citizenship. Some instances where birth does confer citizenship are when a child is born to unknown parents, children born to non-citizens, one of whom was born within Iran or a child born to non-citizens, if after reaching the age 18 the child continues to live within Iran for at least one year …’. At paragraph 5.9 of the report confirms ‘Iranian citizenship may be acquired upon fulfilment of the following conditions: the person must be at least 18 years of age, have resided in Iran for five years, not be a military service escapee and not have been convicted of a major crime in any country …’.”
She then said that she accepted that the Claimant was unable to fulfil the requirement set out in paragraph 5.9 of the CIPU Report, that he had resided in Iran for five years, and confirmed:
“I accept in line with Revenko that even if he were to lodge a proper citizenship application, he is unlikely to be considered for Iranian citizenship due to his lack of appropriate residence in Iran. It is therefore probable that Iran is unlikely to accept the appellant upon return.”
The Adjudicator next turned to the “removal directions”, and the provisions of paragraphs 8 to 10 of Schedule 2 to the 1971 Immigration Act. She rejected the applicability of each in turn: (i) because the Claimant was not likely to be seen as a national of Iran as he had left aged four; (ii) because, although he had Iraqi identity papers of a sort, he was not being returned to Iraq; (iii) because, although he had come via Turkey, Turkey was not the proposed country of removal; and (iv) because there was no other country to which there was reason to believe he would be admitted.
That led her to say in paragraphs 15 and 16:
“15. I therefore accept that the Removal Notice dated 5 November 2003 is invalid because it is not in accordance with the law.
16. For the purposes of clarity, I also accept according to Revenko that the appellant's statelessness in no way qualifies him to be a refugee under the Geneva Convention. I therefore allow the appellant's appeal for the sole reason that the Removal Notice of 5 November 2003 is invalid.”
The Adjudicator, submitted the Secretary of State, had erred in dealing with either or both issues, statelessness and the validity of the removal directions, as preliminary issues. Statelessness by itself was not a sufficient answer, even if properly found, to the question of whether someone was entitled to protection under the Refugee Convention.
In any event, there was no adequate basis for any conclusion, if there had been one, that the Claimant was stateless. The analysis, set out above, of the factual material was wholly inadequate to support any such conclusion. Various aspects of the CIPU Report had been ignored, and no consideration had been given to the availability of nationality to the Claimant as the child of Iranian nationals. The possibility of return to Iraq ought also to have been considered.
Mr Shah for the Claimant submitted that the Adjudicator had made a finding as to statelessness, and that she was entitled to do so on the totality of the evidence.
The Adjudicator clearly appreciated correctly that a finding that someone was stateless did not of itself determine whether he was a refugee within the Geneva Convention; Revenko [2000] Imm AR 610 Court of Appeal. She did not go on to determine the asylum claim, because she concluded that that issue was irrelevant because of her conclusions on the removal directions.
That is unfortunate because the Adjudicator's conclusions on the removal directions were at least arguably wrong. It is unwise for Adjudicators to deal with cases on the basis of a preliminary point; the same is nearly always true at Tribunal level. The factual issues should be resolved so that if any issue of law is decided wrongly, it is more likely that the case can be resolved finally at appeal level without a remittal for the factual issues to be resolved.
The conclusion that the Claimant was stateless was wrong in law on the evidence, or inadequately reasoned. The reality is that the Claimant was asserting to the Adjudicator that he was an Iranian national. He would not become stateless simply because his country of nationality would not permit him entry, and certainly not because it would not permit entry on the basis of the very modest endeavours of the Claimant. The Claimant said at his screening interview (C7), which the Adjudicator overlooked, that he had no evidence with him to show where he was from, but his Iranian ID was with his parents in Iraq; he could...
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