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URL: http://www.bailii.org/uk/cases/UKIAT/1998/G0052.html
Cite as: [1998] UKIAT G0052, [1998] INLR 737, [1998] UKIAT G52

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    Secretary of State for the Home Department v Tikhonov (Moldova) [1998] UKIAT G0052
    HX-73201-94

    IMMIGRATION APPEAL TRIBUNAL

    Date of hearing: 16 April 1998

    Date Determination notified: 17 July 1998

    Before

    Mr E C Brown (Chair)
    His Hon Judge D S Pearl
    Mr D A Lamb

    Between

     

    Tikhonov APPELLANT
    and  
    Secretary of State for the Home Department RESPONDENT

    DETERMINATION AND REASONS

    Background

    This is an appeal by the Secretary of State against the decision of a Special Adjudicator (Mrs J Davidson) promulgated on 31 March 1995 to allow an appeal against the refusal to grant asylum and the issue of removal directions.

    The respondent was born in Moldova on 28 December 1962. His father was Russian. His mother was Moldovan. At that time Moldova was part of the Union of Soviet Socialist Republics (USSR). He lived in Moldova until he was aged 18 or 19. He then went to Latvia and, for some time, worked in the ship yards in Riga. He married a Latvian but was later divorced. He visited Moldova during the war with Transdnestr and thereafter returned to Latvia. He left Latvia on a Russian-registered ship in March 1994. The vessel had to spend a period under repair in the ship yards in Kalingrad (part of the Russian Federation) before making its way, via Norway (were the respondent did not go ashore) to the United Kingdom. On 1 August 1994 the respondent came ashore at Peterhead and claimed political asylum at a police station there. At an initial interview conducted in Russian, the respondent claimed asylum on the basis that Russians were stateless and underprivileged and could not obtain work in Latvia. The respondent claimed that he could not obtain accommodation or work in Latvia (p173 of bundle).

    At his subsequent interview on 26 August 1994, also conducted in Russian, at which a representative of the Scottish Refugee Council was present, the respondent explained that the basis for his claim for asylum was the difficulty he experienced as a Russian-speaker living in Latvia. He had lost his work because he was Russian-speaking. The authorities would not register his marriage there. He could not obtain a residence permit there. He could not vote or obtain work because he was not an inhabitant. He had no right to buy property and could not be naturalised until the year 2000. The respondent claimed, during this interview, that the fact that he could not be naturalised, obtain a residence permit or lead a normal life and the fact that Russian-speakers were forced to leave Latvia amounted to harassment on the part of the government of Latvia (p157).

    By letter dated 8 September 1994, the Secretary of State refused the respondent's claim for asylum (p181). Directions were given for his removal to the Russian Federation (p150). We note, however, that the Home Office refusal letter of 8 September 1994 (p181) refers to the application for asylum being on the grounds that the respondent had a well-founded fear of persecution in Moldova. That statement does not accord with the grounds for asylum set out in the interview records referred to above.

    The respondent appealed against the Secretary of State's decision. On 27 September 1994 the Refugee Legal Centre submitted to the Immigration Appellate Authority, on behalf of the respondent, a statement from the respondent dated 22 September 1994 (p187, 186 and 185). In this statement, the respondent claimed, for the first time, that he had taken part in the conflict between Moldova and Transdnestr fighting against the Moldovans, and that as a result of his involvement he feared reprisals in Latvia from agents acting on behalf of the Moldovan authorities. He claimed also that Russia was not a safe place for him as the Moldovan agents would find him more easily there. This was the main reason why he had asked for political asylum (p185).

    The Special Adjudicator allowed the respondent's appeal. The Special Adjudicator held inter alia (p191 of bundle) that she was satisfied that the respondent could not return to Latvia or Moldova for fear of persecution for a Convention reason. She also held that he had at no time been returnable to Russia and that he could not be returned there. Her determination was promulgated on 31 March 1995.

    The Secretary of State applied to the Tribunal for leave to appeal on the following grounds:

    "i. The adjudicator has erred in her assumption that the applicant is stateless and her observation that the second respondent, Mr Thomson, conceded this point. No categorical assurances were given and the Secretary of State would still not accept that the appellant is stateless and unable to avail himself of the protection of Latvia or Moldova. Even if this were to be the case, this would not, of itself, mean that the appellant was a refugee. He would still have to fulfil the criteria in the 1951 Convention.

    ii. The adjudicator has unreasonably concluded that the Secretary of State accepts that the appellant is not returnable to Latvia or Moldova because removal directions were set for the Russian Federation. That conclusion is wrong. Removal directions were so specified in accordance with paragraphs 2(c)(iii)(iv) and (v) of the Immigration Act 1971. (Copy attached) because:

    a. the appellant embarked for the United Kingdom from Kalingrad, Russia on board the MV Otroy as confirmed by his seaman's book and his own declarations at interview.

    b. The appellant's Latvian Discharge Book confirms he signed on at Kalingrad, Russia 22 April 1994. The vessel is Russian registered.

    c. The appellant had been accepted in Russia between 11 April and 21 May 1994 as endorsed in his Latvian Discharge Book.

    iii. The adjudicator failed to give sufficient weight to the appellant's failure to apply for citizenship in Latvia, Moldova or Russia or to the fact that the appellant has never been refused citizenship. In addition the adjudicator has failed to take into account fully the appellant's own admission (B11) that he could be naturalised in Latvia by 2000.

    iv. The Secretary of State would contend that the description of discrimination of non-Latvians in Latvia does not amount to persecution under the terms of the 1951 United Nations Convention; nor do the specific allegations made by the appellant (which the Secretary of State does not accept) amount to such persecution. There is thus no foundation for a well-founded fear of persecution in the future.

    v. The adjudicator has wrongly given no weight to the appellant's own evidence at interview (A4) that the basis of this claim is economic. Although the document was not signed, the appellant has not denied making the statement."

    Leave to appeal was granted by the Tribunal and the appeal was heard by the Tribunal in London on 8 June 1995. The appeal was allowed and the Tribunal's determination was notified on 19 July 1995. The respondent then petitioned the Court of Session seeking inter alia judicial review and reduction of the Tribunal's determination. By interlocutor dated 2 September 1997, Lord Marnoch, of consent, reduced the decision of the Immigration Appeal Tribunal. Reduction was not sought of the grant of leave to appeal to the Tribunal. Accordingly, both the Special Adjudicator's determination and the grant of leave to appeal to the Tribunal remained extant. The Secretary of State's appeal was heard de novo by the Tribunal on 16 April 1998.

    On 16 April 1998 the appellant was represented by Mr Ramsden, Home Office Presenting Officer. The respondent was represented by Mr McGinley of Gray & Co, Solicitors.

    The Tribunal, with the consent of parties, determined to disregard completely the previous decision of the Tribunal notified on 19 July 1995 and the petition for Judicial Review and to regard the hearing on 16 April 1998 as the first hearing by the Tribunal after the grant of leave to appeal.

    The Tribunal had before it the documentation before the Special Adjudicator. With the consent of the respondent, the appellant lodged 4 additional documents with the Tribunal. These were:-

    1. Two letters, with attachments, from the Foreign & Commonwealth Office dated 17 October 1996 and 5 November 1996.

    2. US State Department Report on Latvia dated 30 January 1998.

    3. US State Department Report on Moldova dated 30 January 1998.

    4. Internal Foreign Office letter from Kate Horner dated 12 September 1996 relating to the question of Russian citizenship.

    Submission on behalf of the Appellant

    Mr Ramsden stated that the Tribunal was not restricted to matters of law but was able to review and reverse findings of fact made by the Special Adjudicator. He referred to Assah [1994] Imm AR 519 (Court of Appeal) and Borissov [1996] Imm AR 524 (Court of Appeal). In the present case the Special Adjudicator had come to the wrong conclusions. These conclusions could and should be overturned.

    At p20 of her determination (p198 of bundle) the Special Adjudicator referred to the respondent's first undated interview (p171-176). This interview was unsigned and was held by the Special Adjudicator to be of very little evidential value. Mr Ramsden submitted that there was no suggestion that the interview had been conducted improperly. Even if it had been conducted improperly, weight could still have been given to it. Mr Ramsden referred to Suen [1997] Imm AR 355.

    With respect to the respondents claimed fear of persecution in Latvia, Mr Ramsden submitted that the respondent had lived in Latvia for 9 or 10 years. He went there in response to an advertisement for a job. He was always employed while living in Latvia. He gained qualifications there. He married a Latvian woman. He had an apartment in Riga. Although the respondent claimed he spoke very little Latvian, either he knew enough Latvian to communicate or he had done very well in getting by in Russian. The appellant claimed the Latvian authorities would not register his marriage there (p160 Q37) but they had registered his divorce (p58-59). The respondent had a Latvian Seaman's book valid until 12 October 1998 (p135). The main reason for the respondent's claim for political asylum was his fear for his life in Latvia (p184 and 185), but that evidence was not accepted by the Special Adjudicator (p26 of determination - p192 of bundle). Even if he had been threatened in Latvia by Moldovans, the respondent had never sought the protection of the authorities in Latvia. He therefore could not say that he had been denied protection in Latvia. He had never been refused entry to Latvia. Even if it was accepted that there was discrimination in Latvia against non-Latvians, there was nothing to demonstrate that the discrimination amounted to persecution.

    With respect to the respondents claimed fear of persecution in Moldova, the USSR Seamans passport shows (at p140), that the respondent was born in the Moldovian Soviet Socialist Republic. The respondent claimed to have fought against the Moldovans in Transdnestr. The Foreign and Commonwealth Office letter of 17 October 1996 (item 1 of the additional productions submitted to the Tribunal) referred to an Amnesty Law adopted by Moldova in 1994. The respondent would not be liable to prosecution if he returned to Moldova. The respondent had never been charged with any offence in respect of his activities in Transdnestr. Even if he had, the Amnesty Law removed any fear of prosecution. The respondent's mother and at least one brother live in Moldova. The US State Department Report on Moldova of 1998 refers to the cease fire of 1992 which ended the armed conflict. The respondent had not sought protection from the authorities in Moldova. He therefore could not say that he had been denied protection by the authorities in Moldova.

    With respect to Russia, the respondent had embarked in Latvia on a Russian ship and had been in Kalingrad in 1994. This was stamped on his Latvian Seamans passport (p133).

    Even if the respondent had an objective fear of persecution in Latvia, Moldova or Russia when he left Latvia in 1994, 4 years later (in 1998) there was no objective basis for such a fear.

    The Special Adjudicator was wrong in law to find that the respondent was at no time returnable to the Russian Federation. Mr Ramsden referred to the Immigration Act 1971, Schedule 2, paragraph 13(2) (iii), (iv) and (v). The Secretary of State was entitled to return the respondent to Russia. The respondent had come to the United Kingdom on a Russian registered ship. He had spent one month and 20 days on board that ship in Kalingrad (p134). He had set off from Russia for the United Kingdom.

    The respondent was not stateless. That had not been conceded by the Secretary of State at the hearing before the Special Adjudicator. Mr Ramsden referred to Article 12 of the Latvian Law on Citizenship of 1994 (p30 of bundle). Mr Ramsden submitted that the respondent was entitled to apply for citizenship in Latvia. He had never done so. He might also be eligible for citizenship in Latvia under Article 13(2) (p29) which applied to former citizens of the USSR. According to the Foreign & Commonwealth Office letter of 5 November 1996 (item 1 of the additional productions before the Tribunal) the respondent would be eligible to apply for citizenship of Moldova as he had been born in Moldova. It also appeared that the respondent could apply for Russian citizenship, not least because the respondent had done military service in Afghanistan. Mr Ramsden referred in this context to Article 13 of the Russian Federation Citizenship Act of 1994 (p12 of bundle) and to the Foreign & Commonwealth Office internal letter of 12 September 1996 (item 4 of additional productions before the Tribunal).

    The respondent had not been refused citizenship of any of the 3 countries (Latvia, Moldova and Russia) as he had never applied. It could therefore not be said that he was stateless. Mr Ramsden referred to the judgement of Lord MacLean in Bradshaw [1994] Imm AR 359.

    The respondent had not established that he was stateless. He had not demonstrated a well-founded fear of persecution in terms of the Convention. The Special Adjudicator had not found the respondent to be credible on a central plank of his story, namely his claimed fear of persecution by Moldovans in Latvia. In consequence, the Special Adjudicator's other conclusions were incorrect. The Special Adjudicator should have dismissed the appeal. Accordingly the Secretary of State's appeal to the Tribunal should be granted.

    Submissions on behalf of the Respondent

    Mr McGinley referred to Professor Jackson's comments in Ivanov (R.12583a) at page 3 with respect to the standard of proof. In the present case, there was a high degree of conjecture and speculation as to whether or not the respondent could apply for and receive citizenship in Lithuania, Moldova or Russia. Having the ability to apply for citizenship is not the test.

    The hearing before the Special Adjudicator took 3 days. The respondent gave evidence. He was expertly cross-examined. The record of proceedings was very detailed. The Special Adjudicator gave a reasoned, detailed and balanced determination. The Special Adjudicator did not believe everything the respondent claimed but she believed the centre piece of his story. It was the centre piece which was important. See Chiver [1997] INLR, 212). The Special Adjudicator was correct in her assessment. She was entitled to find that the respondent was stateless. She gave reasons (at p26-27 of her determination, p192-191 of the bundle) for doing so.

    The Foreign Office letter of 17 October 1996 (No 1 of the additional bundle) post-dated the hearing before the Special Adjudicator and the previous hearing before the Tribunal. This document, and the others like it, had never been spoken to. Nobody had given evidence in relation to them. The comments in the correspondence were often qualified. The BBC document attached to the letter of 17 October 1996 quoted an official who wished to remain anonymous. The reference to "the Moldovans" in the letter of 5 November 1996, as a source of clarification of the Moldovan citizenship law, was unspecific. It was clear from the terms of the letter of 12 September 1996 from Kate Horner, which refers to Russian citizenship law, (item 4 of additional bundle) that the author was not certain about anything. Little or no weight should be attached to these documents.

    Foreign law was a question of fact. It could be proved only by expert evidence. Reference was made to Professor Jackson's book on Immigration Law and Practice, Chapter 25 at paragraph 28, p840.

    Bradshaw [1994] Imm AR 359 did not deal with political asylum or issues arising out of a UN Convention. Lord MacLean's comments on status were obiter. Furthermore, Section 2 of the 1993 Asylum & Immigration Appeals Act gave priority to the Convention over domestic legislation. The respondent had made a claim under the UN Convention. This took precedence over UK domestic law issues.

    There was no evidence that the respondent had dual nationality of both Russia and Moldova. Holding a passport of the former USSR does not imply that you are Russian.

    The respondent had given evidence. He had satisfied the Special Adjudicator that he was stateless. The Secretary of State had appealed against the Special Adjudicator's determination. The burden of proof was now with the appellant. The Secretary of State as the appellant had to demonstrate to the Tribunal that the respondent had citizenship in one or more of the 3 countries in question (Latvia, Moldova or Russia). Although the burden of proof had shifted, the standard of proof remained the same, namely that of "a serious possibility". The burden of proof which now lay with the appellant had not been discharged and the appeal should be refused.

    Determination and Reasons

    This appeal raises a number of difficult issues. In particular, it highlights some of the problems which may be encountered with respect to asylum seekers from the countries of the former Soviet Union.

    We take as our starting point the definition of a Refugee in Article 1A(2) of the 1951 Convention on the Status of Refugees. That Article focuses on the nationality of a person claiming to be a refugee. It reads:-

    "Article 1

    A. For the purposes of the present Convention the term "refugee" shall apply to any person who:

    (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 ad 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".

    We consider that, by virtue of the wording of the Convention, quoted above, it is not possible to decide an asylum claim without identifying the country or countries of nationality or, alternatively, concluding that the appellant is stateless, (see lvanov (R.12583a) at p3).

    As in any asylum case, the burden of proof lies on the claimant to establish the claim. The standard of proof is that of "a serious possibility".

    In a case such as this, the burden falls on the applicant to demonstrate, to the required standard of proof, either that he is a national of the country or countries in respect of which persecution is claimed or that he does not have a nationality, ie that he is stateless (see lvanov p3). The burden of proof with respect to the issue of nationality or statelessness rests with the applicant at all times. The Secretary of State does not have to prove at any time, whether at first instance or on appeal, either that the applicant was a national of a specific country or countries, or that he was stateless.

    In any immigration appeal it is for the party taking the appeal (the appellant) to demonstrate that the inferior authority erred in law or in fact, or in a combination of both as the case may be. That, however, is a quite separate issue from proof by the applicant for asylum of a basic element of the criteria needed to satisfy his claim for asylum namely nationality or statelessness. To suggest otherwise, as has been done by the respondent in this appeal, would be to invert the basic principle in Article 1A(2) of the Convention, on the basis of which all asylum claims are considered.

    In our opinion, the determination of the applicant's status (either that he was a national of a particular country or countries, or that he was stateless) should have been a key element in the Special Adjudicator's consideration of the appeal and a key element of her determination. The Special Adjudicator states (at p26 of her determination - p192 of bundle) that "the Secretary of State has to my mind failed to address many of the issues in this case and specifically the fact that the appellant is stateless. That is no longer disputed by the respondent". In the hearing before the Tribunal, the appellant submitted that at no time did the Secretary of State concede that the respondent was stateless. The record of proceedings does not disclose to us any basis on which the Special Adjudicator could conclude that the Secretary of State accepted that the respondent was stateless, and we accept the appellant's submission that no such concession was made.

    It appeared to Lord MacLean in Bradshaw [1994] Imm AR 359, that before a person could be said to be stateless in terms of the definition in the United Nations Convention relating to the Status of Stateless Persons (1954) he or she would have had to apply for nationality to those states which might consider him to be, and might accept him as, a national. Lord MacLean considered that before a person could be regarded as stateless he or she must have had made application for nationality to those countries with which he or she had the closest connection (and, by implication, be refused). Whether or not Lord MacLean's remarks were obiter is an issue we need not determine as we are in agreement with the views he expressed.

    Having regard to what we have already said with respect to the burden of proof, there is no need for the appellant in this case to prove to us that the respondent was a national of one or more of the three countries or that he was stateless.

    In the present case, the onus was on the applicant (ie the respondent) to prove to the satisfaction of a Special Adjudicator that he was a national of one or more of Lithuania, Moldova or Russia. Alternatively, he had to prove that he was stateless. It appears to us that at no time during the hearing before the Special Adjudicator did the respondent attempt to discharge that onus. Nor has he made any attempt to do so before the Tribunal. The evidence disclosed no attempt by him to apply for citizenship in Lithuania, Moldova or Russia. There was therefore no positive finding by the Special Adjudicator with respect to nationality of one or more of the three countries. At the same time, there was no evidence to support any claim, far less prove, that he was stateless. Accordingly, we consider that the Special Adjudicator was not entitled to conclude, on the basis of the evidence before her, that the appellant was stateless.

    We wish to emphasise that, when relevant, the identification of a country or countries of nationality must be decided on the evidence adduced. In many cases, this would involve issues of foreign law. Foreign law is a question of fact. It can only be determined, in the absence of agreement between the parties, by the leading of expert evidence either in the form of oral evidence or by affidavit. See Bradshaw [1994] Imm AR 359, Lord MacLean at p366 and Professor Jackson, Immigration Law and Practice, 25-28.

    Had we been required to address this issue, (which we were not), we would have attached little or no weight to the translations of foreign laws, unsupported by any expert evidence as to their validity and effect or with respect to their application to the circumstances of the present case. We would have attached no weight to the Foreign Office letters of 17 October 1996, 5 November 1996 and 12 September 1996 and to the supporting documentation attached thereto as these do not constitute expert evidence.

    The Tribunal is entitled to reverse a decision of a Special Adjudicator with respect to matters of fact. See Assah [1994] Imm AR 519, Borrisov [1996] Imm AR 524 and Ikhlaq[1997] Imm AR 355. In our opinion, the Special Adjudicator was not entitled to conclude that the respondent was stateless. The respondent has not proved his status. He has not proved either that he was a national of Lithuania, Moldova or Russia nor, alternatively, that he was stateless. He has not satisfied the criteria of Article 1A(2) of the 1951 Refugee Convention. On that basis alone the appeal must succeed.

    If we are wrong on this matter and the Special Adjudicator was indeed entitled to determine that the respondent was stateless, we are nonetheless not satisfied that the discrimination in Latvia complained of by the appellant amounts to persecution. The evidence clearly demonstrates that the appellant had lived in Latvia for a number of years. He married there. He had a job and an apartment there. He had a Latvian Seamans passport which remains valid until 12 October 1998. The Special Adjudicator found that the respondent had been persecuted and could not return to Latvia. She relied, in part, on the Latvian citizenship legislation. There was no expert evidence on this legislation. For the reasons discussed above, she was not entitled to rely on the evidence with respect to foreign law. The Special Adjudicator did not accept the respondent's claim that he was harassed by Moldovan agents in Latvia. In our view, the evidence which the Special Adjudicator did accept with respect to Latvia was not such as entitled her to make a finding of persecution.

    Discrimination and threats in Latvia formed the basis for the respondent's claim for asylum. The explanatory statement of 8 September 1994 refers to a fear of persecution in Moldova as the basis for the asylum claim. The reference to Moldova appears to have arisen in consequence of a misunderstanding on the part of the Secretary of State of the nature of the respondents claim. We consider, however, that we do not need to address the position with respect to Moldova as the asylum claim does not relate to that country.

    The Special Adjudicator determined that the respondent could not be returned to Russia on account of "highly persuasive evidence in the form of legislation which shows that he could not go there". There was no expert evidence with respect to this legislation. There was no finding by the Special Adjudicator that the respondent had been and would be persecuted if he was returned to Russia, nor was there any basis for such a finding. There is, in our opinion, no valid reason why the respondent should not be returned to Russia. His last port of call before reaching the United Kingdom was Kalingrad, in Russian territory. We do not consider, however, that the provisions of the Immigration Act 1971, Schedule 2, paragraph 13 are of assistance to us in this respect as they do not appear to contemplate nor apply to a person seeking asylum.

    For the sake of completeness, we note our acceptance of the appellant's submission to the effect that a Special Adjudicator is entitled to give weight to an interview even if it has been improperly conducted, Suen [1997] Imm AR 355.

    The appeal by the Secretary of State is allowed.

    EC BROWN

    Chairman

    JUDGE D S PEARL

    President

    D A LAMB SSC

    Legal Member

    Crown Copyright


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