Khan (Disputed Nationality - Removal Directions)

JurisdictionEngland & Wales
CourtImmigration Appeals Tribunal
JudgeC M G OCKELTON,DEPUTY PRESIDENT
Judgment Date26 September 2002
Neutral Citation[2002] UKIAT 4412
Date26 September 2002

[2002] UKIAT 4412

IMMIGRATION APPEAL TRIBUNAL

Before:

Mr C M G Ockelton (Deputy President)

Mr J R A Fox

Mr S L Batiste

Between:
Asif Khan
Appellant
and
Secretary of State for the Home Department
Respondent

Khan (Disputed Nationality — Removal Directions) Afghanistan *

DETERMINATION AND REASONS
1

The Appellant's nationality is unknown. He has claimed at all material times to be a citizen of Afghanistan. He appeals, with leave, against the determination of an Adjudicator, Mr J J B Nicholson, dismissing his appeal against the decision of the Respondent on 5 th October 2001 to give directions for his removal to Afghanistan as an illegal entrant. Before us he is represented by Mr Kumi, instructed by Sriharans, and the Respondent is represented by Ms Paddick.

2

The heart of the Appellant's claim is that he is a refugee from Afghanistan. He gave to the Secretary of State a circumstantial description of his past. It was that history that he repeated before the Adjudicator. Neither the Secretary of State nor the Adjudicator believed that his story was the truth. Neither the Secretary of State nor the Adjudicator believed that the Appellant is from Afghanistan.

3

In the course of refusing his claim, the Secretary of State wrote this, at paragraph 15 of the letter of refusal:

“As a result of your obvious lack of knowledge about the area that you claim to have lived in, the Secretary of State has concluded that you are not from Nengahgar. This in turn has given the Secretary of State cause to doubt that you are, in fact, an Afghan as claimed. The Secretary of State has therefore considered all the available evidence presented in your asylum claim, but has concluded that you are not genuinely of Afghan nationality.”

And then at paragraph 20:

“The Secretary of State is not satisfied that you are an Afghan and has refused your claim for asylum and your human rights claim on the basis that you are not from Afghanistan. Directions will be given for your removal to Afghanistan, as this is the country of which you claim to be a national. This is being done solely in order to enable you to appeal to an Adjudicator and enable to decision to refuse your claim for asylum to be reviewed. If you appeal against the refusal of your claim for asylum and the Special Adjudicator also concludes that you are not from Afghanistan, we will seek to establish your true nationality.”

4

The Appellant did appeal, as we have said. The Adjudicator concluded as follows:

“I note the arguments put by Mr Kumi on the Appellant's behalf — they were ably put but they do not persuade me that there is any truth to this Appellant's story. Having weighed the evidence, I am not persuaded that this Appellant is from Afghanistan. His knowledge of the country was very limited and I am not persuaded that he was a credible witness.”

Later, the Adjudicator wrote as follows:

“The onus lies on the Appellant to persuade me that it is reasonably likely that he is a refugee within the definition given in Article 1A of the Refugee Convention. He has failed to do so because he has not persuaded me either that it is reasonably likely that he comes from Afghanistan or that it is reasonably likely that he would come to any harm if he was returned there.”

And later, the Adjudicator emphasises his position as regards to the Appellant's nationality when he says that another issue of course is academic as he does not come from Afghanistan.

5

The Adjudicator went on to consider whether, in those circumstances, the Secretary of State's notice of decision that the Appellant should be removed to Afghanistan was valid and he concluded that, (although the matter was not strictly speaking for him) as a result of his decision, the notice would not be regarded as valid.

6

Before us, Mr Kumi has raised three principal matters. The first is that the Adjudicator's determination was defective in that it failed to identify the Appellant's nationality. The second is that, in any event, the notice of decision to remove to Afghanistan is invalid and cannot be acted upon because the Appellant is not from Afghanistan, which appears to be what the Adjudicator decided. The third is that the notice of removal is unlawful because of the terms in which the Secretary of State indicated that he was giving that notice (those terms are the ones we have set out in paragraph 20 of the letter of refusal). We deal with each of those points in turn.

7

First, nationality. Mr Kumi submitted that it was the Adjudicator's task to assess the Appellant's nationality. He acknowledged that no country of nationality for the Appellant had been offered, other than Afghanistan. He acknowledged also that the burden of proof of nationality was on the Appellant and that it was not for either the Adjudicator or for the Secretary of State to establish the Appellant's nationality. Mr Kumi referred us to the decision of the Tribunal in Tikhonov, [1998] INLR 737. In that case, the Tribunal, constituted by the then President and two legal members, decided that It was not possible to decide an asylum claim without identifying the country or countries of nationality of the claimant, or alternatively concluding that the claimant was stateless. The burden of proving such nationality or statelessness was upon the claimant and the identification of the relevant country or countries had to be decided on the evidence”.

8

Tikhonov , however, was a case in which the basic facts of the Claimant's history were not in serious doubt. He was a person who, in terms both of ancestry and in terms of the changing politics of Eastern Europe, was of doubtful nationality. In order to assess his claim under Article 1A(2) of the Refugee Convention, it was evidently necessary to determine his country of nationality from the available options. In those circumstances, the Tribunal felt able to take the view that an Adjudicator should always decide which of the nationalities was relevant for the purposes of the claim. We have some doubts whether the rule in Tikhonov is expressed too widely. It does appear to us that if an Appellant's claim is of such a nature that it gives no rise to a well-founded fear of persecution whatever his nationality, it cannot in principle be right to say that it cannot be assessed without determining his nationality. But that is perhaps not of immediate relevance to the present appeal.

9

So far as the present appeal is concerned, the position is that the Adjudicator had precisely two choices on the evidence before him. He had the opportunity of deciding that the Appellant was from Afghanistan as he said: and he had the opportunity of rejecting the Appellant's account, in which case there was no alternative country of nationality that he could properly offer. We do not accept Mr Kumi's submission that, in those circumstances, an Adjudicator is obliged to find a country of nationality for the Appellant. If the Appellant offers only one country and is not believed in his account, the determination that he does not come from that country is entirely adequate as a determination of his nationality for the purposes of the appeal which the Appellant is raising. For those reasons, so far as the question of...

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8 cases
  • MY (Disputed Somali nationality)
    • United Kingdom
    • Immigration Appeals Tribunal
    • 2 Junio 2004
    ...appeal been by a Somali national which failed on its merits, they would have been capable of being acted on. The Tribunal in Asif Khan [2002] UKIAT 04412, was wrong to conclude that removal directions could not be challenged in a pure asylum appeal and in any event there was also a human ri......
  • ST (Ethnic Eritrean – nationality – return)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 30 Junio 2011
    ...the burden of proving that he or she has, or had, that nationality. This is plain from the starred (binding) decision in Asif Khan [2002] UKIAT 04412. What is less clear is whether the standard of proof is the balance of probabilities or that there is merely a reasonable likelihood of the a......
  • Upper Tribunal (Immigration and asylum chamber), 2011-06-30, [2011] UKUT 252 (IAC) (ST (Ethnic Eritrean - nationality - return))
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 30 Junio 2011
    ...the burden of proving that he or she has, or had, that nationality. This is plain from the starred (binding) decision in Asif Khan [2002] UKIAT 04412. What is less clear is whether the standard of proof is the balance of probabilities or that there is merely a reasonable likelihood of the a......
  • Upper Tribunal (Immigration and asylum chamber), 2004-06-02, [2004] UKIAT 174 (MY (Disputed Somali nationality))
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 2 Junio 2004
    ...appeal been by a Somali national which failed on its merits, they would have been capable of being acted on. The Tribunal in Asif Khan [2002] UKIAT 04412, was wrong to conclude that removal directions could not be challenged in a pure asylum appeal and in any event there was also a human ri......
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