Case No. UKUT-00453-(IAC)

PER TRIBUNAL JUDGE STOREY UPPER TRIBUNAL JUDGE GRUBB Between MW (ANONYMITY DIRECTION MADE) Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation : For the Appellant: Mr O Manley, Counsel For the Respondent: Mr I Richards, Home Office Presenting Officer 1. Article 4(1) of the Qualification Directive does not impose a shared duty of cooperation on the Member State to substantiate an applicant’s nationality. 2. Article 4(2) refers to documentation (including documentation regarding nationality(ies)) “at the applicant’s disposal” - which must include documentation which is not in the applicant's present possession but is within his or her power to obtain. 3. The terms of Article 4(3) are consistent with the position that an applicant who denies he is a national of a country where he could obtain protection can be expected to take reasonable steps to establish that he is not such a national. DECISION AND REASONS 1.The appellant, who claims to be a national of Eritrea, has permission to challenge the decision of First-tier Tribunal (FtT) (Judge Kimnell) dated 30 July 2015 dismissing his appeal against the decision made by the respondent on 12 May 2014 to remove her from the UK following the refusal of her application for asylum. A previous decision by FtT Judge M R Oliver was set aside by Deputy Upper Tribunal Judge Lewis in December 2014 for lack of reasons.2.The grounds which persuaded UTJ Bruce to grant permission to appeal were threefold.3.First, the judge was said to have erred in rejecting the appellant’s claim to have been arrested and detained by the Eritrean authorities in November 2010 and to have fled Eritrea in consequence. The error was identified as being a failure to attach weight to the judge’s positive finding that the appellant was a Pentecostal Christian. It was pointed out that the claimed arrest and detention in November 2010 took place when the authorities found the appellant in her home praying with other Pentecostal worshippers. It was stated that the judge proffered no effective reason for rejecting the claimed arrest and detention. It was submitted that each of the three reasons given at [46] and [47] for rejecting the appellant’s account (the implausibility of her escape account; her not having an identity card in her possession; and her inconsistency as regards who was arrested) was said by the judge himself in the same paragraphs not to count against her: the judge it was said noted that the first two points had not been put to her at the hearing; and regarded the alleged inconsistency as having a satisfactory explanation. Accordingly, the only reason in effect for rejecting the core of the appellant’s claim was because of the judge’s (and respondent’s) assessment as regards her nationality. It was submitted that it was an error of law to deduce an adverse credibility finding solely from a determination of nationality.4.Before proceeding further, it is convenient to set out in full what the judge said at [46] – [47]:- “46. The appellant’s information about her uncle engineering her escape from detention in Eritrea is extremely vague. She does not explain how it was arranged or why it would be that her close relative would have such influence with the authorities that, firstly, he would know who to approach in order to arrange a bribe, how he would identify an officer who was susceptible, how the whole process was managed and, if a bribe was paid, how much it was. Quite why she was not in a possession of her identity card at the time of her arrest, given that the card and she were both at her uncle’s home, is unclear, but no questions were asked about that therefore I draw no conclusions from it. The appellant’s journey to the United Kingdom requires some explanation because she spent three years en route and when she did leave Sudan to travel to the United Kingdom she was leaving a country in which she had no well-founded fear of persecution. I conclude that the appellant has been unforthcoming because she has not been candid with the UK authorities and has failed to discharge the duty on her mentioned in the UNHCR Handbook to provide the respondent with full and complete information. 47. I did not find the appellant’s answer to question 108 of her interview to be particularly significant. Ms Ellis sought to argue that the appellant had given contradictory evidence about who was arrested because the words ‘and my father’ appear in the answer. I agree that the most likely interpretation is that the appellant was saying in answer to question 108 that her father was arrested with others , but the reply is ambiguous and it is possible that she was simply saying that the people arrested worshipped with her father. Therefore I do not hold that reply against her either.” 5.We do not find this first ground made out. For one thing the grounds are inaccurate in portraying the judge as stating that none of the stated reasons are to count against her. The only point which the judge states he “will draw no conclusion” from concerned the matter of why she was not in possession of an identity card at the time of her arrest. The judge says he will draw no conclusions because she was not asked questions about this. The judge says nothing in [46] to suggest that the two reasons he relies on are not being counted against her. These reasons were that the escape account was “extremely vague” and that she had not been candid in the account she gave of the journey to the UK via Sudan. For the judge, this meant she had failed to discharge the duty on her to provide the respondent with full and complete information. These reasons were considered by the judge to be reinforced by serious difficulties as regards her claim to be a returnee from Eritrea and to have adequate knowledge about the country. Considered cumulatively, we are quite satisfied that these reasons were ones that were both open to the judge and sufficient to justify his specific conclusions. The judge did not simply rely on the difficulties as regards her claim to be a national of Eritrea.6.The second ground, which forms the central part of the appellant’s submission, attacks the judge’s conclusion that the appellant is a national of Ethiopia and not as claimed of Eritrea. This conclusion was said to be flawed for essentially two reasons. It is convenient to summarise and then give our assessment of each of these reasons in turn.7.The first reason focuses on the judge’s assessment in [60] that the appellant had not taken all reasonable steps to obtain evidence from the Ethiopian Embassy in Croydon that she is not Ethiopian. This was said to be wrong because in fact the responsibility to take all reasonable steps was a shared one. Specific objection was taken to the judge’s statement in [59] that “[t]here is nothing the respondent could have done to assist the appellant to make her case that she is Eritrean”. It was argued that there clearly was something the respondent could have done, as it is routine for her to engage with the Ethiopian Embassy to establish nationality at the stage when she is enforcing removal against someone considered to be a national of that country. On the authority of MM v Minister for Justice, Equality and Law Reform, Ireland, and another (Case C-277/11); [2013] 1 WLR 1259) there is a shared responsibility between the appellant and the respondent at the initial fact-finding pre-decision stage of the proceeding with respect to ascertaining the facts to establish an asylum claim1. Yet in the appellant’s case the respondent had manifestly not made any inquiries relating to the appellant's nationality with the Ethiopian Embassy in London. Since the appellant had stated that she did not fear persecution in Ethiopia (only in Eritrea), there was no risk that inquiries would put her in jeopardy. Such inquiries of the Ethiopian Embassy could lawfully and reasonably have been made. The duty to substantiate nationality 8.We reject this contention. In our judgement it rests on a misconception regarding the shared duty of the respondent in the initial fact-finding stage as set out in Article 4 of the Qualification Directive as analysed by the CJEU in the MM case. Article 4(1) does specify that the assessment of the relevant elements of the application for international protection must be undertaken by the Member State “[i]n cooperation with the applicant”. But this shared duty must be interpreted in light of the prior requirement in Member States such as the UK to “consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection”. Article 4(2) contains a list of what the elements referred to in paragraph 1 consist of. This list reads as follows: “the applicant’s statements and all documentation at the applicant ’ s d isposal regarding the applicant’ s age, background, including that of relevant relatives, identity , nationality(ies) , country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection ” (emphasis added in bold).9.Notably the wording of Article 4(2) refers to documentation “at the applicant’s disposal”; it does not refer to “in the applicant’s possession”. “At the applicant’s disposal” must include documentation which is not in the applicant's present possession but which is within the power of the applicant to obtain. Assessment pertaining to nationality/citizenship 10.Nor is it just that the Directive regards the duty of substantiation of nationality to rest on the applicant (by virtue of the Member State in question - the UK - considering it the applicant’s duty to substantiate his application). When setting out the basis on which assessment of an application (what the MM judgment terms the second stage of assessing (or evaluating) the application) Article 4(3) specifically identifies the steps that have to be taken in the context of assessing nationality/citizenship as being for the applicant: “3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” (emphasis added in bold)In our judgement, the terms of Article 4(3) are consistent with the position that an applicant who denies he is a national of a country where he could obtain protection can be expected to take reasonable steps to establish that he is not such a national. 11.Given that the appellant can derive no support from the Directive (or the corresponding provision of the Immigration Rules set out in paragraph 339I), there is no reason to consider departure from Court of Appeal authority on this point and in MA (Ethiopia) [2009] EWCA Civ 289 their Lordships clearly did not view the duty resting on the applicant to take reasonable steps as being in any way shared. Elias LJ stated at [50-[54] as follows: “50. In my judgment, where the essential issue before the AIT is whether someone will or will not be returned, the Tribunal should in the normal case require the applicant to act bona fide and take all reasonably practicable steps to seek to obtain the requisite documents to enable her to return. There may be cases where it would be unreasonable to require this, such as if disclosure of identity might put the applicant at risk, or perhaps third parties, such as relatives of the applicant who may be at risk in the home state if it is known that the applicant has claimed asylum. That is not this case, however. There is no reason why the appellant should not herself visit the embassy to seek to obtain the relevant papers. Indeed, as I have said, she did so but wrongly told the staff there that she was Eritrean. 51. I am satisfied that there is no injustice to the appellant in this approach: it does not put her at risk. The real risk test is adopted in asylum cases because of the difficulty of predicting what will happen in the future in another country, and because the consequences of reaching the wrong decision will often be so serious for the applicant. That is not the case here. As Ms Giovannetti pointed out, there is no risk of ill treatment if an application to the embassy is made from the United Kingdom , even if it is refused. 52. Furthermore, this approach to the issue of return is entirely consistent with the well-established principle that, before an applicant for asylum can claim the protection of a surrogate state, he or she must first take all steps to secure protection from the home state. That was the approach adopted in Bradshaw , to which I have made reference. It can be seen as an aspect of the duty placed on an applicant to co-operate in the asylum process. Paragraph 205 of the UNHCR handbook expressly states that an applicant for asylum must, if necessary, make an effort to procure additional evidence to assist the decision maker. Bradshaw is an example of such a case. The issue was whether the applicant was stateless. Lord MacLean held that before a person could be regarded as stateless, she should make an application for citizenship of the countries with which she was most closely connected . 53. Any other approach leads, in my view, to absurd results. To vary an example given by my Lord, Lord Justice Stanley Burnton in argument: the expert evidence might show that three out of ten in the appellant's position were not allowed to return. If that evidence were accepted it would plainly be enough to constitute a real risk that the appellant would not be successful in seeking authorisation to return. But it would be strange if by the appellant's wilful inaction she could prevent the Tribunal from having the best evidence there is of the state's attitude to her return. She could refuse to put to the test whether she might be one of the seven who would be successful. It would in my view be little short of absurd if she could succeed in her claim by requiring the court to speculate on a question which she was in a position actually to have resolved. 54. It is clear that the Tribunal did not approach matters in this way. In the absence of evidence as to how she would have been treated had she made a proper application, they sought to resolve the issue by considering whether someone in her position was likely to be allowed to be returned or not. In adopting this approach they were apparently approaching the matter in line with the submissions of the parties. Nevertheless, for the reasons I have given, in my judgment this means that they erred in law. They ought not to have engaged on this inquiry without first establishing that the appellant had taken all reasonably practicable steps to obtain authorisation to return. ” 12.The judge may have stated matters too absolutely in [59], when he said “[t]here is nothing the respondent could have done to assist the appellant make her case that she is Eritrean”. It was possible the respondent could have discussed with the appellant whether she was content for the respondent to make inquiries of the Ethiopian embassy. It was possible, if satisfied there would be no risk to the appellant, that the respondent could have made inquiries of the Ethiopian embassy herself. But there was no duty on her to do this. The issue of whether the appellant took reasonable steps 13.The second basis identified in the grounds for attacking the judge’s approach to assessment of nationality avers that the judge was simply wrong to conclude that the appellant had not taken all reasonable steps with respect to establishing that she was not Ethiopian. It was submitted in this regard that the judge was wrong to conclude that the appellant had not acted in accordance with the principles set out in MA (Ethiopia), in that:(i) her solicitors had written to the Ethiopian Embassy on 30 May 2014 to which there had been no reply; and(ii) she had attended the Ethiopian Embassy to make a personal application taking with her a 13 June 2014 letter from the solicitors.To find that there was something more that the applicant could have done was to assume a “universal finding that no appellant can act reasonably in such circumstances as they are all dishonest”.14.We are unable to agree with this submission. What the judge said at [60] is this: “60. I do not accept that the appellant has taken all reasonable steps to engage with the Ethiopian Embassy in London . She has given only partial information which has been insufficient for the Ethiopian authorities to acknowledge her nationality. I found the appellant evasive and untruthful in relation to her ability to establish contact with relatives abroad. I find that she has done that in order to hide the truth about her nationality and her journey to the United Kingdom . ” 15.The letters from the appellant’s solicitors to the Ethiopian Embassy dated 30 May and 13 June 2014 did state that they were acting for the appellant who was seeking to establish her nationality and they did give the home, place of birth and date of birth of her and her parents etc., but they were stated in the context of what was only an inquiry as to how she should go about making an application for a travel document or passport. It is said the first letter did not receive a reply, but in any event the appellant did then attend the embassy with a copy of the June letter and completed an application form for a passport giving much the same particulars. Her completed application form contains a handwritten refusal decision from the consul stating: “[T]he applicant has not attached supportive documents with her application for an Ethiopian passport. Therefore there is no valid reason for the Embassy to issue her an Ethiopian passport. Taking into consideration the information letter and further to the questions asked to the applicant in relation to her family background we have come to the conclusion that the applicant has not provided sufficient documents to substantiate her reliability…” This handwritten decision conveys several things: that the embassy took into account the appellant’s details given in the solicitor’s letter (“information letter”); that they interviewed the applicant in relation to her application with particular reference to her family background; and that they were not satisfied she had provided sufficient documentation. As a statement of reasons for refusing an application for nationality it seems to us to be unexceptionable. It is a recognised principle of international law that every State determines who its nationals are under its own law2: see Art. 1 of the Convention on Certain Questions Relating to the Conflict of Nationality Law, 179 LNTS 89, 13 April 1930 (entry into force: 1 July 1937); see also Permanent Court of International Justice, advisory opinion of 7 February 1923, Nationality Decrees in Tunis and Morocco , PCIJ Series B, No 4; KK & ors (Nationality; North Korea) Korea CG [2011] UKUT 92 (IAC). Documentary evidence to support an application for nationality is a common feature of countries’ nationality determination procedures. We know from the solicitor’s letter and the appellant’s statements that she claimed to have no documents to support her application, but there is nothing to suggest that she made any effort to obtain them, e.g. by seeking to contact family members for copies of their identity documents. Nor is there anything to suggest that her solicitors sought to establish from the Ethiopian embassy in advance of her embassy appointment what documents they would expect her to produce or, if certain documents were unavailable, what evidence they would accept in lieu. We would observe that if after her interview the appellant or her solicitors were of the view that the embassy had been unreasonable or unfair in basing their rejection on her having failed to produce relevant documents, they could have written to say so. There is nothing to suggest that they attempted to do that.16.The appellant may not have been, as was the appellant in MA (Ethiopia) someone who clearly “misled” the embassy, but she was someone who had not taken all reasonable steps because the evidence was that her efforts to establish Ethiopian nationality (even on the assumption that she gave true particulars) were half-hearted. This is what the judge found and it was entirely reasonable of him to do so.17.We would also observe that the judge did not simply consider the appellant's attempts to establish her lack of Ethiopian nationality by reference to her contacts with the Ethiopian embassy. As is clear from [60], he found her evidence to him as regards her inability to contact relatives abroad “evasive and untruthful”.18.Given that we find no error in the judge’s assessment that the appellant had failed to take reasonable steps to establish that she was not Ethiopian, we see no merit whatsoever in the additional contention of the appellant in the renewed grounds that the judge’s approach assumed the appellant’s dishonesty. There were at least two possible views the judge could have taken about the appellant’s approaches and exchanges with the Ethiopian embassy: that she was seeking to help by giving them full and true particulars; or that she was not. Having considered the evidence as a whole, the judge decided it was the latter. There were no artificial assumptions either of honesty or dishonesty involved.