MA (Disputed Nationality)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Allen |
| Judgment Date | 10 September 2007 |
| Neutral Citation | [2008] UKAIT 32 |
| Court | Asylum and Immigration Tribunal |
| Date | 10 September 2007 |
[2008] UKAIT 32
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Storey
SENIOR IMMIGRATION JUDGE Allen
Mr M G Taylor CBE
For the Appellant: Mr E Fripp, instructed by North Kensington Law Centre
For the Respondent: Ms L Giovannetti and Mr R Kellar, instructed by the Treasury Solicitor
MA (Disputed Nationality) Ethiopia
In any case of disputed nationality the first question to be considered should be: “Is the person de jure a national of the country concerned?”. This question is to be answered by examining whether the person fulfils the nationality law requirements of his or her country. Matters such as the text of nationality laws, expert evidence, relevant documentation, the appellant's own testimony, agreement between the parties and Foreign Office letters may all legitimately inform the assessment. In deciding the answer to be given, it may be relevant to examine evidence of what the authorities in the appellant's country of origin have done in respect of his or her nationality.
If it is concluded that the person is de jure a national of the country concerned, then the next question to be considered is purely factual, i.e. “Is it reasonably likely that the authorities of the state concerned will accept the person, if returned, as one of its own nationals?”.
This decision replaces MA (Ethiopia – mixed ethnicity – dual nationality) Eritrea [2004] UKIAT 00324
The appellant was born in Ethiopia to parents of Eritrean ethnicity. The question of her nationality has been a matter of some uncertainty and difficulty throughout the time she has been in the United Kingdom: we shall deal with the specifics later in this determination.
She arrived in the United Kingdom on 24 March 1999 and claimed asylum on arrival. Her application was refused in a decision of 4 July 2001 refusing leave to enter. At that time removal directions associated with that decision were for Eritrea.
The appellant appealed against that decision to an Adjudicator, Dr M S W Hoyle, who heard her appeal on 4 March 2002. He noted that the essential account given by her to the Immigration Officer was that she was married and was born in Addis Ababa and was a Muslim and her current nationality was Eritrean. In further detail to the Home Office she said that she feared return to Ethiopia and Eritrea. She and her husband were of Eritrean nationality but had been living in Ethiopia. She said that her husband was a member of the Eritrean Liberation Front (ELF) and as a result was deported from Ethiopia to Eritrea. She herself was not then deported because she was at the time in Dire Dawa where she had gone to give birth in February 1999. She feared that if she went to Eritrea she would, like her husband, be jailed because of his ELF membership. If she went back to Ethiopia she would be deported to Eritrea. When she had gone from Dire Dawa to Addis Ababa her neighbours told her the authorities were looking for her to deport her to Eritrea.
The appellant in a witness statement before the Adjudicator said that her parents had come to Ethiopia from Eritrea before her birth. She had never lived in Eritrea. Her main language was Amharic. She understood some Tigrinya, the language spoken in Eritrea, but did not speak it herself, and was easily identifiable as someone from central Ethiopia or Addis Ababa.
She said that she had never considered herself to be an Eritrean national as opposed to someone of Eritrean ethnic origin resident in Ethiopia and Ethiopian by nationality. She had never been issued with any ID card, passport or any other documents by the authorities of independent Eritrea, nor had she contributed money to related causes or taken part in community activities in Addis Ababa supportive of independent Eritrea. She confirmed to the Adjudicator that she had an Ethiopian passport. When she was asked about nationality she said that the answer she gave to the Immigration Officer in the United Kingdom was that she was of Eritrean origin. The Adjudicator commented that she gave him the impression in the way that she answered the question that she did not understand that she had had her nationality noted as Eritrean. In cross-examination she acknowledged that she had left Ethiopia with a valid Ethiopian passport in her name and had used it to gain access to Kenya. She had not claimed asylum in Kenya because the person with her had told her he would take her to a safe place. She had not known she was going to the United Kingdom. She had last seen her Ethiopian passport when she gave it to the person who had helped her. He had left her at immigration in England and did not come back.
The Adjudicator considered her claim in the context of return to Eritrea. He found that on the evidence before him the appellant was entitled to Eritrean nationality. He did not consider that the appellant would face a real risk of persecution or breach of Article 3 on return to Eritrea. Her husband had not told her he was in the ELF and there was no evidence that he was nor, if he were, at what level he was in that organisation. Background material did not support an assertion that ELF members per se would face a real risk of persecution or breach of Article 3 on return or that unmarried partners of such people would face such a risk either. The Adjudicator noted that the appellant had held a validly issued Ethiopian passport on which she travelled out of her country of residence through Kenya to the United Kingdom. He considered that the background material did not support the assertion that an Ethiopian citizen, albeit of Eritrean nationality who was born in Addis Ababa and had never been to Eritrea nor taken any part in Eritrean independence activities, would face a real risk of persecution or breach of Article 3 on return.
The appellant sought permission to appeal to the Immigration Appeal Tribunal. The Vice President who considered the application commented that it appeared clear that the appellant had no connection whatsoever with Eritrea beyond the fact that her parents were of Eritrean origin. He also noted that as she had been issued with an Ethiopian passport it would appear that she was a citizen of that country but there was no proposal for her removal there but rather to Eritrea. He considered that there were arguable issues as to the proposed destination.
The Immigration Appeal Tribunal considered the matter on 12 June 2002. At paragraph 3 the Tribunal said that it appeared that the Adjudicator was misled into thinking that it was sufficient for him to decide whether the appellant had a well-founded fear of persecution in Eritrea, the country to which the Secretary of State proposed to remove her. The Tribunal commented that the appellant's status as a refugee or not must depend upon whether she could establish a well-founded fear of persecution in Ethiopia, the country of which she appeared to be a national. Despite the fact that the removal directions were for Eritrea it was considered that the appellant's status as a refugee, by reference...
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Upper Tribunal (Immigration and asylum chamber), 2011-06-30, [2011] UKUT 252 (IAC) (ST (Ethnic Eritrean - nationality - return))
...who had continued so to reside up until the date of the Directive. The finding to the contrary in MA (Disputed Nationality) Ethiopia [2008] UKAIT 00032 was wrong (paragraphs 115 and (8) The 2009 Directive, which enables certain Eritreans to return to Ethiopia as foreigners to reclaim and ma......
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ST (Ethnic Eritrean – nationality – return)
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Upper Tribunal (Immigration and asylum chamber), 2011-02-21, [2011] UKUT 92 (IAC) (KK and others (Nationality: North Korea))
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