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More tribunal decisions

More tribunal decisions

Cases arriving on luggage carousel
Some cases… By Robert S. Donovan

Another series of edictsreported cases has been handed down by the Upper Tribunal. Official headnotes and links to the BAILII judgments are included below. I’ve also thrown in another couple of cases that slipped out since the last big batch.

We have two Country Guideline cases. The first, ST,  is on Eritrean/Ethiopian nationality issues and deprivation of nationality as persecution. The second is MT, a profoundly important case for Ahmadis from Pakistan that finally updates country guidance to reflect the Supreme Court judgments in HJ. In short, if an Ahmadi would behave discreetly in order to avoid persecution, for example by only proselytising to perceived safe individuals, then he or she is entitled to asylum.

There are also four European Community law cases, probably the most interesting of which is Aladeselu. The tribunal confirms that an Other Family Member (OFM) must be dependent both outside and inside the UK on the UK sponsor but goes on to hold that there is no requirement that the OFM be lawfully present in the UK and there is no need for the OFM to have arrived in the UK at the same time as or after the sponsor: prior presence does not disqualify. Nkrumah concerns a residence card that was issued in error. Once communicated the card is valid and can only be revoked with an accompanying right of appeal, it cannot simply be withdrawn or annulled. Begum deals with the meaning of ‘worker’ and ‘jobseeker’ and is worth a read as a refresher on those subjects.

The last case is Rose, on automatic deportations and OFMs. It is a slightly convoluted decision. The tribunal holds that where a person qualifies as an OFM, a decision must be made by the Secretary of State on whether to issue a residence card or not. This is because a such a card ‘may’ be issued, not ‘must’. If the residence card is issued, an attempted deportation must be in compliance with European Community law provisions. If the residence card is not issued, the European Community law exception to automatic deportation does not apply, probably only leaving human rights arguments in play.

Links and official headnotes follow.

ST (Ethnic Eritrean – nationality – return) Ethiopia CG [2011] UKUT 252 (IAC) (01 July 2011)

LAW 

(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).

(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).

(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).

COUNTRY GUIDANCE 

(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).

(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).

(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). 

(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).

(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).

(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).

(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).

(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).

(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).

(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).

(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 05996NB (Mixed Ethnicity – Ethiopian – Eritrean) Ethiopia CG [2002] UKIAT 06526AA (Children – Eritrean) Ethiopia CG UKIAT 06533; TG (Mixed Ethnicity) Ethiopia CG [2002] UKIAT 07289; and DA (Ethnicity – Eritrean – Country Conditions) Ethiopia CG[2004] UKIAT 00046.

MT (Ahmadi – HJ (Iran)) Pakistan [2011] UKUT 277 (IAC) (13 July 2011)

Where it is found that an Ahmadi will be “discreet” on return the reasons for such discretion will need to be considered in the light of HJ (Iran) [2010] UKSC 31.

SA (Divorced woman- illegitimate child) Bangladesh CG [2011] UKUT 254 (IAC) (13 July 2011)

(1)   There is a high level of domestic violence in Bangladesh.  Despite the efforts of the government to improve the situation, due to the disinclination of the police to act upon complaints, women subjected to domestic violence may not be able to obtain an effective measure of state protection by reason of the fact that they are women and may be able to show a risk of serious harm for a Refugee Convention reason.  Each case, however, must be determined on its own facts.

(2) Under Muslim law, as applicable in Bangladesh, the mother, or in her absence her own family members, has the right to custody of an illegitimate child.

(3)  In custody and contact disputes the decisions of the superior courts in Bangladesh indicate a fairly consistent trend to invoke the principle of the welfare of the child as an overriding factor, permitting departure from the applicable personal law but a mother may be disqualified from custody or contact by established allegations of immorality.

(4)  The mother of an illegitimate child may face social prejudice and discrimination if her circumstances and the fact of her having had an illegitimate child become known but she is not likely to be at a real risk of serious  harm in urban centres by reason of that fact alone.

(5)  The divorced mother of an illegitimate child without family support on return to Bangladesh would be likely to have to endure a significant degree of hardship but she may well be able to obtain employment in the garment trade and obtain some sort of accommodation, albeit of a low standard.  Some degree of rudimentary state aid would be available to her and she would be able to enrol her child in a state school.  If in need of urgent assistance she would be able to seek temporary accommodation in a woman’s shelter.  The conditions which she would have to endure in re-establishing herself in Bangladesh would not as a general matter amount to persecution or a breach of her rights under article 3 of the ECHR.  Each case, however, must be decided its own facts having regard to the particular circumstances and disabilities, if any, of the woman and the child concerned. Of course if such a woman were fleeing persecution in her own home area the test for internal relocation would be that of undue harshness and not a breach of her article 3 rights.

Aladeselu & Ors (2006 Regs – reg 8) Nigeria [2011] UKUT 253 (IAC) (01 July 2011)

1. For the purposes of establishing whether a person qualifies as an Other Family Member (OFM)/extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the requirement that they accompany or join the Union citizen/EEA national exercising Treaty rights must be read as encompassing both those who have arrived before and those who have arrived after the Union citizen/EEA national sponsor. 

2. The 2006 Regulations do not impose a requirement that an OFM/extended family member must be present in the United Kingdom lawfully.

3. But in the context of the exercise of regulation 17(4) discretion as to whether to issue a residence card, matters relating to how and when an OFM/extended family member arrives in a host Member State are not irrelevant.

Nkrumah (OFM- annulment of residence permit) Ghana [2011] UKUT 163 (IAC) (12 July 2011)

1. Where a residence card has been issued in a passport on an application duly made it becomes a valid document if it has not been cancelled before it is communicated to the applicant.
2. An application for a residence card cannot be lawfully refused it has already been issued.
3. A residence card may be revoked if it is shown that was issued by mistake to someone not entitled to it.

Begum (EEA – worker – jobseeker) Pakistan [2011] UKUT 275 (IAC) (13 July 2011)

(1)   When deciding whether an EEA national is a worker for the purposes of the EEA Regulations, regard must be had to the fact that the term has a meaning in EU law, that it must be interpreted broadly and that it is not conditioned by the type of employment or the amount of income derived.  But a person who does not pursue effective and genuine activities, or pursues activities on such a small scale as to be regarded as purely marginal and ancillary or which have no economic value to an employer, is not a worker.  In this context, regard must be given to the nature of the employment relationship and the rights and duties of the person concerned to decide if work activities are effective and genuine.

(2)   When considering whether an EEA national is a jobseeker for the purposes of EU law, regard must be had to whether the person entered the United Kingdom to seek employment and, if so, whether that person can provide evidence that they have a genuine chance of being engaged.  If a person does not or cannot provide relevant evidence, then an appeal is bound to fail on this ground.

Rose (Automatic deportation – Exception 3) Jamaica [2011] UKUT 276 (IAC) (13 July 2011)

 1. The personal scope of the safeguards against expulsion which Article 27 of 2004/38/EC (the “Citizens Directive”) affords to “family members” does not include “other family members”(OFMs).

 2. Hence Exception 3 to s.32(4) and (5) of the UK Borders Act 2007 (which arises where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the EU treaties [previously “Community treaties”] cannot be invoked by OFMs.

3. However, a person who has been found to be an OFM/extended family member under the Immigration (European Economic Area) Regulations 2006 needs to be considered by the Secretary of State as a person in respect of whom the discretion to issue a residence card under regulation 17 may be exercised.

4. The result of the exercise of that discretion may be that regulations 20-21 apply to the appellant’s removal, and the decision would not be lawful without regard to them.

5. So if consideration has not been given to the exercise of the discretion, the assessment of criteria going to deportation or removal cannot be completed. 

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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