KK and ors (Nationality: North Korea)
| Jurisdiction | UK Non-devolved |
| Judge | C M G OCKELTON |
| Judgment Date | 07 July 2010 |
| Neutral Citation | [2011] UKUT 92 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 07 July 2010 |
[2011] UKUT 92 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, Vice President
Senior Immigration Judge Gleeson
For the first and second appellants: Mr M Mullins, instructed by Gillman-Smith Lee
For the third appellant: Ms M Phelan, instructed by Thompson & Co
For the Respondent: Mr S Kovats QC, instructed by the Treasury Solicitor
KK and ors (Nationality: North Korea) Korea CG
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1. Law
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(a) For the purposes of determining whether a person is “of” or “has” a nationality within the meaning of Article 1A(2) of the Refugee Convention, it is convenient to distinguish between cases where a person (i) is (already) of that nationality; (ii) is not of that nationality but is entitled to acquire it; and (iii) is not of that nationality but may be able to acquire it.
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(b) Cases within (i) and (ii) are cases where the person is “of” or “has” the nationality in question; cases within (iii) are not.
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(c) For these purposes there is no separate concept of “effective” nationality; the issue is the availability of protection in the country in question.
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(d) Nationality of any State is a matter for that State's law, constitution and (to a limited extent) practice, proof of any of which is by evidence, the assessment of which is for the court deciding the protection claim.
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(e) As eligibility for Refugee Convention protection is not a matter of choice, evidence going to a person's status within cases (i) and (ii) has to be on “best efforts” basis, and evidence of the attitude of the State in question to a person who seeks reasons for not being removed to that State may be of very limited relevance.
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2. Korea
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(a) The law and the constitution of South Korea (ROK) do not recognise North Korea (DPRK) as a separate State.
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(b) Under South Korean law, most nationals of North Korea are nationals of South Korea as well, because they acquire that nationality at birth by descent from a (North) Korean parent, and fall therefore within category (i) in 1(a) above.
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(c) South Korea will make rigorous enquiries to ensure that only those who are its nationals are recognised as such but the evidence does not show that it has a practice of refusing to recognise its nationals who genuinely seek to exercise the rights of South Korean nationals.
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(d) South Korean law does not generally permit dual nationality (North Korean nationality being ignored for this purpose).
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(e) South Korean practice appears to presume that those who have been absent from the Korean Peninsula for more than ten years have acquired another nationality displacing their South Korean nationality; such persons therefore move from category (i), in 1(a) above, to category (iii).
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These appeals raise issues about the interaction of the Refugee Convention and national legislation granting or allowing dual nationality, specifically with reference to North Korea and South Korea. This determination makes observations about those issues, and gives Country Guidance (summarised at paragraph 90(2) below) on the circumstances in which North Koreans are nationals of South Korea.
The United Nations Convention Relating to the Status of Refugees (The Refugee Convention) provides surrogate international protection for those who are outside their own countries for fear of persecution there. Following amendment in 1967, the main part of the definition of a refugee for the purposes of the Convention in Article 1A is as follows:
“For the purposes of the present Convention, the term “refugee” shall apply to any person who:
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(2) …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”
The latter paragraph operates to preserve the nature of international protection as surrogate or of last resort. If a person has nationality of a country where he is not at risk of persecution, it is the protection of that country rather than of the international community that he should seek. In such circumstances the international community of signatories to the Refugee Convention is neither bound by the Convention to offer him protection under it, nor even concerned with him: as a national of a country where he is not at risk of persecution, he ought not to be of any international concern.
The phrasing of the references to nationality in Article 1A(2) is in the present tense: “has more than one nationality”; “countries of which he is a national”. It may be necessary to draw clear distinctions between three possible situations. The first is where a person has nationality of more than one country: that is to say each of the countries in question recognises him as a national. The second is where a person is entitled to nationality of a second country: that is to say that recognition of his nationality will depend on an application by him, but on the facts his nationality is a matter of entitlement, not of discretion. The third is where a person may be able toobtain nationality of a second country: that is to say, where it cannot be said that, on application, he would be recognised as a national, but that he might be granted nationality. The difference between the first and the second situation is of status, not of documentation. A person may be a national of a country that has not yet issued him with any documentation evidencing that nationality. Such a person exemplifies the first situation, not the second.
The Korean Peninsula is divided into two States, each of which is recognised as such in international law and accordingly has its own citizens. The northern state is the Democratic People's Republic of Korea (which we shall call “North Korea”; some of the sources use the abbreviation “DPRK”). The southern is the Republic of Korea (which we shall call “South Korea”; some of the sources use the abbreviation “ROK”). For historical and political reasons South Korea regards all Koreans, including citizens of North Korea, as citizens of South Korea.
The regime in North Korea has attracted widespread disapproval, and citizens of North Korea who have left North Korea may have relatively little difficulty in establishing a well-founded fear of persecution there. The question raised by these appeals is whether South Korea's attitude to them as citizens of South Korea as well deprives them of the status of refugees, unless they can show a risk of persecution in South Korea too.
The three appellants have a number of features in common. Each of them came to the United Kingdom illegally, and claimed asylum on the basis of nationality of North Korea. In each case, the Secretary of State's starting position was that he did not accept that the claimant was from North Korea. Each of the appellants was the subject of an immigration decision giving notice of intended removal as an illegal entrant. The appellants appealed to Immigration Judges, who found in each case that they were North Korean nationals, but that their nationality also of South Korea (where they had not established that they would be at any risk) prevented them from being refugees and meant that their removal there would not put the United Kingdom in breach of any international obligations. Each of the appellants sought, and obtained, an order for reconsideration. Under the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010, the reconsiderations continue as appeals to this Tribunal.
In earlier proceedings in each case, the Asylum and Immigration Tribunal ruled that the Immigration Judge had erred in his approach to the question whether the appellant was properly to be regarded as a national of North Korea. Our task is to re-make the decisions on the appellants' appeals.
The first and second appellants are partners, each born in North Korea in 1978. They each suffered family difficulties, and travelled illegally from North Korea into China, the first appellant in 1991 and the second in 1990. They met in China in 1995 and started living together in 2000. They had no status in China and were continually at risk of raids by the authorities looking for North Koreans illegally in China. Following an incident in the village where they were living, in 2007 they left China, arriving in the United Kingdom on 15 December 2007. They claimed asylum a few days later.
Their claims were refused, and each was served on 28 April 2008 with notice of a removal decision. The proposed destination was China. As a result of discussions at the beginning of the hearing before Immigration Judge O'Flynn, the notice of decision was amended, giving China and South Korea as possible removal destinations, and the Immigration Judge accordingly considered the first and second appellants' positions if they were removed to either of those countries.
The Immigration Judge made firm and clear findings that the appellants were to be regarded as credible in their claimed histories. There was before him...
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