MA (Ethiopia) v Secretary of State for the Home Department

Hearing dates : 11 March 2009

This is an appeal against the decision of the Asylum & Immigration Tribunal, in which it upheld the decision of the Secretary of State dated 4 July 2001 that the appellant should be refused asylum. There is an extremely lengthy history to this case and the decision under challenge is the third occasion on which the AIT (or its predecessor the IAT) has had to consider the appellant's case.

The background.

The Appellant is an Ethiopian of Eritrean origin. Both her parents were Eritrean but she was born in Ethiopia and had always lived there. Her main language was Amharic. She arrived in the United Kingdom almost ten years ago on 24 March 1999 from Addis Ababa. She said she was married to an Eritrean national and that he, his in-laws and her son had all been sent back to Eritrea by the Ethiopian Government. This was in the period 1998–2000 when many persons of Eritrean origin were forcibly deported there by the Ethiopian authorities following the breakaway of Eritrea from Ethiopia. She only avoided being sent with them because she was in Dire Dawa giving birth. Neighbours told her that the authorities were looking for her. She was in fear of being sent to Eritrea and escaped from Ethiopia via Kenya with the help of an agent. She gave him her passport which she acknowledged was a valid Ethiopian passport in her name.

She appealed the Secretary of State's refusal to grant her refugee status. At that stage the intention of the Secretary of State was to return the appellant to Eritrea. Indeed, the assumption of the adjudicator hearing the first appeal was that the appellant was an Eritrean national. He concluded that she would not suffer any risk of persecution were she to be returned to Eritrea.

She sought leave to appeal to the Immigration Appeal Tribunal. The vice-president noted that she appeared to have no link with Eritrea, save that her parents were of Eritrean origin, and granted permission to appeal. The IAT upheld the appeal in June 2002 on the grounds that the adjudicator had been misled as to her nationality. The real issue was whether she could establish a well-founded fear of persecution were she to be returned to Ethiopia, the country of which she appeared to be a national.

There was a fresh hearing on 9 October 2002. The new adjudicator, Mrs Woolley, found essentially the same facts. There was still some confusion about her nationality, which the adjudicator accepted could have been a genuine misunderstanding, but the appellant was claiming to be Ethiopian. However, the appeal was unsuccessful because the adjudicator considered that the appellant had a right to become a national of Eritrea by virtue of her parents' Eritrean origin, and that she would not be persecuted if she were to return there. The adjudicator also found that the appellant had maintained her Ethiopian nationality and would not face a risk of persecution if returned to Ethiopia.

Permission to appeal was again given. The only ground on which leave was given was whether she could be expected to look to the Eritrean authorities for protection, and whether she would be at risk there. The matter came before the AIT for the second time on 9 August 2004. It was heard with two other cases and became a 'country guidance' case: MA & Others [2004] UKIAT 00324. The Tribunal described one of the issues before them in the following terms:

“Whether nationals or former nationals of Ethiopia face persecution as a result of their ethnicity arising from a risk of discriminatory withdrawal of their nationality and a risk of deportation to Eritrea.”

It was alleged that Ethiopians of Eritrean descent faced the withdrawal of their Ethiopian nationality, contrary to the Ethiopian constitution, and would in effect be treated as registered aliens. This in itself, it was submitted, amounted to persecution within the meaning of Article 1(A)(2) of the Convention relating to the Status of Refugees.

The Tribunal did not accept that all Ethiopians of Eritrean origin were at risk of having their nationality withdrawn. However, they accepted that in reality if an Ethiopian was deprived of his nationality that may well lead to treatment which could properly be categorised as persecution, and that would in turn confer a right to refugee status. Reliance was placed on the judgment of Hutchison LJ in Adan, Nooh, Lazarevic and Radivojevic v Secretary of State for the Home Department [1997] 1 WLR 1107, 1126 (hereafter referred to as Lazarevic, as it was below) where he said this:

“If a state arbitrarily excludes one of its citizens, thereby cutting him off from enjoyment of all those benefits and rights enjoyed by citizens and duties owed by a state to its citizens, there is in my view no difficulty in accepting that such conduct can amount to persecution. Such a person may properly say both that he is being persecuted and that he fears (continued) persecution in the future.” (emphasis in original).

The AIT focused on the word “can” in particular and held that this indicated that withdrawal of nationality did not necessarily amount to persecution. In short, it was not the deprivation of citizenship itself but its consequences which have to be considered. They could be of such gravity as to put the person at risk of persecution.

The Tribunal also found that if someone seeking asylum had the right to apply for nationality from a country which would provide safe harbour, then they would be obliged to apply for it. They could not defeat the provisions of the Convention by their own inaction. Support for this principle was found in a decision of the Outer House of the Court of Session in Bradshaw [1994] Imm AR 359 and an earlier AIT decision in YL (Nationality-Statelessness-Eritrea-Ethiopia) Eritrea CG [2003] UK IAT 00016 which followed it. In this case the AIT held that the appellant could look to the Eritrean authorities for protection and that she would not be at risk of persecution if returned there. However, the Secretary of State had indicated during the course of the hearing that he was cancelling the removal directions for Eritrea and was intending to make any future directions to Ethiopia. The adjudicator had found that she was not at risk there, and the Tribunal concluded that that was a conclusion open to her (although it was not strictly an issue in the appeal.). The AIT dismissed the appeal.

The appellant sought leave to appeal to the Court of Appeal and that was granted. The Court of Appeal remitted the matter so that the AIT should consider the appellant's asylum and human rights appeals only on the basis of the proposed removal to Ethiopia.

So the matter was considered by the AIT a third time. It is that decision which is now the subject of this appeal.

The analysis of the Tribunal is very detailed. It is not necessary to explore that detail because much of the judgment concerns matters no longer in issue between the parties. The appellant was contending that she would be persecuted if returned to Ethiopia, that persecution taking the form of the denial of her nationality.

The Tribunal summarised its approach to the issues in paragraphs 80–86 of its decision. It noted that the arguments had drawn a sharp contrast between de jure and de facto nationality, and stated that it saw only a limited value in the distinction. However. it considered that the concepts were useful in cases like this where the issue was whether the alleged persecution results from the state's attitude to nationality.

The Tribunal envisaged two stages. The first question, at least in any case of disputed nationality, is to determine whether a person is a de jure national of the state concerned. If he is, then the second stage is engaged. That was described in the following terms in paragraphs 85 and 86:

“ The De facto Nationality Issue (Stage 2)

85. If it is concluded that the person is a de jure national of the country concerned then the next question to be considered is the purely factual question, i.e. “Is it reasonably likely that the authorities of the state concerned will accept the person concerned if returned as one of its own nationals?” This is the hypothetical approach, which focuses exclusively on the person's position upon return. That this approach was approved by the Court of Appeal can be seen from paragraph 71 of EB in the judgment of Longmore LJ.

86. At the outset we consider that if the person is a de jure national, there is a presumption that the country concerned will afford him the same treatment as any other national. Following on from this, it may also be presumed that the person concerned will have obtained travel documentation to enable them to be returned. If it transpires that they cannot in fact obtain such documentation, then they will not be returned and therefore no refoulement issues will arise in any event. Disputes concerning such matters may arise on judicial review (in the context of the enforcement of removal directions) or under asylum support legislation relating...