ST (Ethnic Eritrean – nationality – return)
| Jurisdiction | UK Non-devolved |
| Judge | P R Lane,S Ward |
| Judgment Date | 30 June 2011 |
| Neutral Citation | [2011] UKUT 252 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 30 June 2011 |
[2011] UKUT 252 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE P R Lane
SENIOR IMMIGRATION JUDGE S Ward
For the Appellant: Eric Fripp and Emma Daykin, Counsel, instructed by Blavo & Co. Solicitors
For the Respondent: Sebastian Kandola, Senior Home Office Presenting Officer
ST (Ethnic Eritrean — nationality — return) Ethiopia CG
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(A) There is nothing in MS (Palestinian Territories) [2010] UKSC 25 that overrules the judgments in MA (Ethiopia) [2009] EWCA Civ 289. Where a claim to recognition as a refugee depends on whether a person is being arbitrarily denied the right of return to a country as one of its nationals, that issue must be decided on an appeal under section 82 the Nationality, Immigration and Asylum Act 2002 (paragraphs 69 to 72).
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(B) Although the question of whether a person is a national of a particular state is a matter of law for that state, the question whether a national of a particular state has been lawfully or unlawfully deprived of the nationality of that state is a legitimate issue for a court or tribunal to determine, in the course of deciding a person's entitlement to international protection (paragraph 74).
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(C) Whether arbitrary deprivation of nationality amounts to persecution is a question of fact. The same is true of the denial of the right of return as a national; although in practice it is likely that such a denial will be found to be persecutory (paragraphs 76 and 82 to 89).
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(1) Although the process established by the Ethiopian authorities in 1998 for identifying ethnic Eritreans who might pose a risk to the national security of Ethiopia, following the outbreak of war between the countries, was not arbitrary or contrary to international law, in many cases people were arbitrarily expelled to Eritrea without having been subjected to that process. Those perceived as ethnic Eritreans, who remained in Ethiopia during the war, and who were deprived of Ethiopian nationality, suffered arbitrary treatment, contrary to international law. Those who left Ethiopia at this time or who were then already outside Ethiopia were arbitrarily deprived of their Ethiopian nationality. Also during this time, the Ethiopian authorities made a practice of seizing and destroying identification documents of those perceived as ethnic Eritreans in Ethiopia (paragraphs 60 to 65).
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(2) A person whose Ethiopian identity documents were taken or destroyed by the authorities during this time and who then left Ethiopia is as a general matter likely to have been arbitrarily deprived on Ethiopian nationality. Whether that deprivation amounted to persecution (whether on its own or combined with other factors) is a question of fact (paragraphs 76 to 78).
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(3) The practices just described provide the background against which to consider today the claim to international protection of a person who asserts that he or she is an Ethiopian national who is being denied that nationality, and with it the right to return from the United Kingdom to Ethiopia, for a Refugee Convention reason. Findings on the credibility and consequences of events in Ethiopia, prior to a person's departure, will be important, as a finding of past persecution may have an important bearing on how one views the present attitude of the Ethiopian authorities. Conversely, a person whose account is not found to be credible may find it difficult to show that a refusal on the part of the authorities to accept his or her return is persecutory or based on any Refugee Convention reason (paragraphs 79 to 81).
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(4) Although, pursuant to MA (Ethiopia), each claimant must demonstrate that he or she has done all that could be reasonably expected to facilitate return as a national of Ethiopia, the present procedures and practices of the Ethiopian Embassy in London will provide the backdrop against which judicial fact-finders will decide whether an appellant has complied with this requirement. A person who is regarded by the Ethiopian authorities as an ethnic Eritrean and who left Ethiopia during or in the immediate aftermath of the border war between Ethiopia and Eritrea, is likely to face very significant practical difficulties in establishing nationality and the attendant right to return, stemming from the reluctance of the Ethiopian authorities to countenance the return of someone it regards as a “foreigner”, whether or not in international law the person concerned holds the nationality of another country (paragraphs 93 to 104).
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(5) Judicial fact-finders will expect a person asserting arbitrary deprivation of Ethiopian nationality to approach the embassy in London with all documentation emanating from Ethiopia that the person may have, relevant to establishing nationality, including ID card, address, place of birth, identity and place of birth of parents, identity and whereabouts of any relatives in Ethiopia and details of the person's schooling in Ethiopia. Failing production of Ethiopian documentation in respect of such matters, the person should put in writing all relevant details, to be handed to the embassy. Whilst persons are not for this purpose entitled to portray themselves to the embassy as Eritrean, there is no need to suppress details which disclose an Eritrean connection (paragraph 105).
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(6) A person who left Ethiopia as described in (4) above is unlikely to be able to re-acquire Ethiopian nationality as a matter of right by means of the 2003 Nationality Proclamation and would be likely first to have to live in Ethiopia for a significant period of time (probably 4 years) (paragraphs 110 to 113).
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(7) The 2004 Directive, which provided a means whereby Eritreans in Ethiopia could obtain registered foreigner status and in some cases a route to reacquisition of citizenship, applied only to those who were resident in Ethiopia when Eritrea became independent and 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 116).
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(8) The 2009 Directive, which enables certain Eritreans to return to Ethiopia as foreigners to reclaim and manage property in Ethiopia, applies only to those who were deported due to the war between Ethiopia and Eritrea and who still have property in Ethiopia (paragraphs 117 and 118).
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(9) A person who left Ethiopia as described in (4) above, if returned to Ethiopia at the present time, would in general be likely to be able to hold property, although the bureaucratic obstacles are likely to be more severe than in the case of Ethiopian citizens. Such a person would be likely to be able to work, after acquiring a work permit, although government employment is unlikely to be available. Entitlement to use educational and health services is, however, much more doubtful. At best, the person will face a bureaucratic battle to acquire them. He or she will have no right to vote (paragraphs 119 to 124).
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(10) Such a person would be likely to feel insecure, lacking even the limited security afforded by the 2004 Directive. Tensions between Ethiopia and Eritrea remain high (paragraph 125).
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(11) The following CG cases on Ethiopia are superseded or replaced, as the case may be, by the present determination: GG (Return – Eritrean) Ethiopia CG [2002] UKIAT 05996; NB (Mixed Ethnicity – Ethiopian – Eritrean) Ethiopia CG [2002] UKIAT 06526; AA (Children – Eritrean) Ethiopia CG UKIAT 06533; TG (Mixed Ethnicity) Ethiopia CG [2002] UKIAT 07289; andDA (Ethnicity – Eritrean – Country Conditions) Ethiopia CG [2004] UKIAT 00046.
Senior Immigration Judge Susan Ward and I heard evidence and submissions in this case over three days in late January 2011. Tragically, three days later my colleague suffered a cerebral haemorrhage and it was therefore decided, with the agreement of the parties, that the determination would be mine alone. Susan died on 27 May.
Prior to the hearing, this case had been identified by the Upper Tribunal as suitable for giving country guidance in the case of certain persons from Ethiopia whose claims to be refugees involved the assertion that, whether or not entitled to Ethiopian nationality as a matter of international law, they have been denied such nationality by the Ethiopian authorities.
The Tribunal has benefited from detailed written and oral submissions from the representatives. We heard oral evidence from a legally qualified witness, as regards the dealings between the appellant and the Ethiopian Embassy in London. We also heard oral evidence from two expert witnesses. A summary of the oral evidence is set out in Appendix A to this determination.
The appellant was born in Ethiopia on 1 October 1979. At the time of his birth Eritrea was a province of Ethiopia, having been annexed in 1962. Both of the appellant's parents were Ethiopian nationals. His father was Oromo but his mother was Tigrina with her roots in Eritrea, a fact which was to have important consequences for the appellant.
For some years prior to 1991, an armed struggle for Eritrean independence had been waged by the Eritrean People's Liberation Front (EPLF). In that year, the Marxist dictatorship known as the Derg, which had ruled Ethiopia since 1974, was overthrown by the Ethiopian People's Revolutionary Democratic Front (EPRDF). The EPRDF had close links with the EPLF and, as a result, arrangements were made for a referendum on Eritrean independence. The referendum took place in May 1993. Amongst those who voted were ethnic Eritreans living in Ethiopia, otherwise than within the then province of Eritrea. The vote was overwhelmingly in favour of independence, which occurred in the same year.
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