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Cite as:  UKIAT 00TH02130
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Smith v Secretary of State for the Home Department (Liberia)  UKIAT 00TH02130
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 09 June 2000
Date Determination notified: 09 June 2000
DR. H. H. STOREY (Chair)
Miss S S Ramsumair
Mrs S Hussain
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
[ For case citations see end of the determination]
a) The issue of a claimant`s nationality is integral to assessment of every claim to refugee status. That is clear from the text of Art 1A(2) of the 1951 Convention which requires that a claim to refugee status can only be assessed in relation to two categories of country: either the country(ies) of which the claimant is a national; or, as an alternative arising only if he is stateless, the country of his former habitual residence: Ivanov (R12583 a and b); Tikhonov G0052  INLR 737.
(b) In relation to nationality, the burden of proof is on the applicant throughout. There is no need for the Secretary of State to prove, either at first instance or on appeal, whether the applicant is a national of a particular country or stateless: Ivanov (R12583a) and Tikhonov. However that burden will not be onerous where there is corroborative evidence: Zrilic (171006).
c) The evidential burden, however, may shift throughout the case (Ivanov, op.cit.).
"She has sought to claim asylum on the basis that she is a citizen of Liberia but there is no credible evidence to support that claim and I am unable to make any findings as to her true nationality".
"Any person, at least one of whose parents was a citizen of Liberia at the time of the person`s birth, shall be a citizen of Liberia?"
"Even had I believed here, however, this would not have altered that position [that the asylum clam must fail]. At the time she claims to have left Liberia, it was in a state of civil war and, following the reasoning in Adan, she was in no greater danger than anyone else caught up in that civil war in which the forces of law and order had completely broken down. She would not, accordingly, have qualified for refugee status under the Convention at the time she left the country. No evidence has been adduced before me to show that, at the present time, as a result of anything that has taken place since that departure, anything has happened to give her a claim to be a refugee sur place with a current well founded fear of persecution if now returned there save the reference in the Human Rights Watch report to which Mr Akainyah drew my attention. That, however, relates to the situation in November 1997 shortly after President Taylor`s election victory, which followed numerous accords intended to bring the civil war to an end, with substantial international input. The appellant makes no claim to have been other than a victim of the civil war and there is no evidence before me that currently her tribal origin would lead to a real possibility of persecution".
" A critical preliminary issue in the case, in the Tribunal`s opinion, was to determine whether the appellant was a citizen of Georgia or of Russia or is stateless. As was said in an earlier Ruling, it is necessary to determine that issue because of the wording of the definition of a refugee in Art 1A(2) of the Refugee Convention?"
In Tikhonov also it was stated that it was not possible to decide an asylum claim without identifying the claimant`s country(ies) of nationality or statelessness.
"The contention in the present case is that it is incumbent on an adjudicator to make a finding on nationality but the need to identify the country of nationality has to be considered in the context of the claim made. In the present case the claim made focuses on Liberia and therefore the country of nationality is identified for the purpose of deciding the asylum claim. The adjudicator was not satisfied that the appellant was of Liberian nationality just as he was not satisfied on any material aspect of the appellant`s claim. As the adjudicator was not satisfied the appellant was as he claimed to be a national of Liberia it would then follow that the appellant had failed to make the case he was seeking to make i.e. that he was outside the country of his nationality (Liberia) because of a well-founded fear of being persecuted for a Convention reason.
?In this case the Secretary of State intends to return the appellant to Nigeria and the appellant having failed to establish that he is outside the country of his nationality because of a well-founded fear of persecution for a Convention reason no third country issue arises.
We add only that it is perfectly clear from the adjudicator`s determination that he was of the view that whatever the nationality of the appellant there was no well-founded fear of persecution in Liberia. The fallacy in the grounds of appeal seems to us with respect is to read the need the need to identify the country of nationality for the purpose of deciding an asylum claim as equated to the need to find positively that the appellant is a national of a certain country. As we have said the identification of the country depends upon the circumstances of each particular case.
As Mr. Graham said it follows from the burden of proof lying on the appellant that it is for him to establish his nationality or to establish that he is stateless. It is possible to envisage a case (such as this) in which the appellant fails to establish a link with any country but also fails to establish that he is stateless. This does not however relieve the adjudicator or any decision takes[sic] from identifying the country in relation to which the asylum appeal arises. That country in this case is clearly identifiable and the adjudicator decided the case focusing on that country i.e. Liberia".
The need for a broader approach
Accordingly, unmeritorious cases aside, rejection should only be based on a negative finding as to nationality in cases where the decision-maker is also satisfied that there is no territory return to which would place him at risk of persecution.
"Where, therefore, an applicant alleges fear of persecution in relation to the country of his nationality, it should be established that he does in fact possess the nationality of that country. There may, however, be uncertainty as to whether a person has a nationality. He may not know himself, or he may wrongly claim to have a particular nationality or to be stateless. Where his nationality cannot be clearly established, his refugee status should be determined in a similar manner to that of a stateless person, i.e. instead of the country of his nationality, the country of his former habitual residence will have to be taken into account".
Given the difficulties that can also affect determination of a country of former habitual residence, we consider that the Handbook should have gone, as we have gone, a little further.
The issue of proving nationality 44. Given that in the instant case the Tribunal has based its conclusions largely on general assumptions about the nationality laws operated by modern states (including Liberia), we should explain the extent to which we consider its approach in this respect to conform with the actual practice followed in previous Tribunal determinations.
i. Relevant documentation. The relevant country of nationality may be established with documentation such as a passport or travel document In Polivina (18441), in which a claimant was adjudged to be Croatian, possession of a passport was held to create a strong presumption of citizenship which could only be displaced by weighty evidence to the contrary. However, other items of documentation may be relevant, e.g. letters from relevant authorities in the country concerned or (as in the instant case) birth certificates in respect of countries that operate qualified or unqualfied ius soli.
ii The claimant Where documentation is not available or admitted to be false, evidence from the claimant will be especially important. Relatives and friends may also have relevant evidence. Just because there is no documentary evidence to support the appellant`s claimed nationality is not fatal if his word is believed as to his nationality: Benda (13293).
iii. Agreement between the parties (Tikhonov (G0052)). iv. Expert oral or affidavit evidence (Ibid.). v. Foreign Office letters.
vi. Text of relevant nationality law of country(ies) concerned.
"The requirements of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself"
"?To be considered as a national by operation of law means that, under the terms outlined in the State`s enacted legal instruments pertaining to nationality, the individual concerned is ex lege, or automatically, considered a national. As a minimum, there must be a State, the constitution or laws of which make some provision for nationality. Those who are granted citizenship automatically by the operation of these legal provisions are definitively nationals of that State. Those who have to apply for citizenship and those the law outlines as being eligible to apply, but whose application could be rejected, are not citizens of that State by operation of that State`s law. Wherever an administrative procedure allows for discretionary granting of citizenship, such applicants cannot be considered citizens until the application has been approved and completed and the citizenship of that State bestowed in accordance with the law"(p.171), C.A.Batchelor, "Statelessness and the Problem of Resolving Nationality Status" IJRL Vol.10 1998 157 at 158.
a) In most appeals before Special Adjudicators the nationality of the claimant is not in issue, as is noted at paragraph 87 of the 1979 UNHCR Handbook. But where it is doubted Special Adjudicators must address it. Where it clearly is in issue it may be appropriate to deal with it as a preliminary issue, although in some cases it may not be possible to decide it separately from hearing the entirety of the appellant`s evidence.
b) In order to comply with Art 1A(2) it is not always necessary to make a positive finding on nationality (or statelessness), but it is always necessary to attempt to do so. In going about this task Special Adjudicators should not treat an asylum hearing as a nationality court. Nor should they rely too strictly on any notion of a hierarchy of sources such as may be apt under classic rules on evidence dealing with questions of foreign law and expert evidence. As is demonstrated by our findings on this appeal, they should also give due weight to texts of a state`s nationality laws read in conjunction with acknowledged general principles governing nationality law. Furthermore they should bear in mind that it is their duty to weigh all items of evidence in the balance, even if they are meagre and would not be enough to satisfy a body charged with responsibility for deciding on a person`s nationality in the light of full particulars furnished by an applicant in accordance with normal civil law procedures.
c) Where, notwithstanding application of a flexible approach to establishing the facts, it remains the case that the appellant cannot discharge the burden of proof on him to prove his nationality because, for example, of a lack of even meagre evidence, then it will be in order for Special Adjudicators to record a negative finding as to nationality. Such a finding must not, however, be equated with recognition of any international law status: at international law there is no status of "unknown nationality".
d) However, where a negative finding of nationality cannot be avoided, the task of the Special Adjudicator should not always end there. Except in cases wholly lacking in credibility and substance, he or she should go on and assess the appellant`s claim by reference to his claimed country of persecution. Such a "belt and braces" approach, whilst not strictly required under the Convention, best conforms to its primary purpose of preventing refoulement to those with a well-founded fear of persecution against which the state cannot protect them.
DR H H STOREY (VICE-PRESIDENT)
UK Cases Court cases Adan  Imm AR 338 Bradshaw  Imm AR 359 Khawaja and Kera  A.C.74 Kingori v Secretary of State for the Home Department  Imm AR 539 Revenko v Secretary of State for the Home Department(CA) Times Law Report 8 September 2000.
Tribunal cases Benda (13293). Djurovic (13021) Ivanov (R12583 a and b) Kucero (18075) Polivina (18441) Prince (13751) Simunic (14005) Tikhonov (G0052)  INLR 737. Zrilic (171006)
Privy Council and Overseas Cases Akar v Att.-Gen.of Sierra Leone  A.C.853 Nottebohm (ICJ Reports(1953)
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