UK - Immigration Appeals Tribunal, 9 June 2000, Smith v Secretary of State for the Home Department (Liberia) [2000] UKIAT 00TH02130

Country of Decision:
Country of Applicant:
Date of Decision:
09-06-2000
Citation:
[2000] UKIAT 00TH02130
Court Name:
Immigration Appeals Tribunal
Relevant Legislative Provisions:
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Headnote: 

The issue of an applicant’s nationality is integral to a claim for refugee status. In the great majority of asylum applications the nationality of the applicant is not in issue, but when it is put in doubt decision-makers must address it. Failure to do so would offend the nationality logic that underlies the refugee definition set out in Art 1A(2). The burden of proof in respect of nationality is on the applicant although the evidential burden may shift.

Facts: 

The applicant claimed to be a citizen of Liberia. She produced a Liberian birth certificate that showed that she was born in Liberia and both her parents were Liberian. The judge that first considered her appeal was unable to make a finding on her nationality because she had limited knowledge in respect of Liberia.  He nonetheless considered the evidence and found that she would not be at risk of persecution or serious harm in Liberia. The applicant appealed on the basis that the judge had failed to make a finding in respect of her nationality and that the adverse credibility findings should not stand.

Decision & Reasoning: 

The Tribunal reviewed previous caselaw and held that it established that, first of all, nationality was integral to the assessment of every claim for refugee status. It held that in the great majority of asylum applications the nationality of the applicant is not in issue, but when it is put in doubt decision-makers must address it.

Secondly, the burden of proof in respect of nationality is on the applicant. However, where there is corroborative evidence, the burden will not be onerous.

Thirdly, the evidential burden in relation to assessing nationality may shift between the applicant and the respondent.

Fourthly, the failure to make a finding as to nationality did not necessarily mean that the decision was flawed. In the present case, the judge considered the applicant’s claim in respect of Liberia, her claimed country of nationality, even though he did not make a positive finding in respect of her nationality. However, unknown nationality was not a status in international law; persons were either nationals or stateless. On the evidence, the judge should have found that the applicant was a national of Liberia.

Fifthly, the Tribunal noted that there were a wide variety of sources of evidence that could be considered in relation to nationality. It noted that a non-hierarchical approach should be adopted. The potential sources were:

1. Relevant documentation. The relevant country of nationality may be established with documentation such as a passport or travel document (which may create a strong presumption). 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 unqualified ius soli.

2.  The applicant’s evidence. 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 applicant’s claimed nationality is not fatal if his word is believed as to his nationality.

3. Agreement between the parties.

4. Expert oral or affidavit evidence.

5. Foreign Office letters.

6. Text of relevant nationality law of country(ies) concerned.

Outcome: 

Appeal dismissed.

Observations/Comments: 

This case should be considered alongside MA (Ethiopia), ST (Ethiopia) and KK (Korea) which are separately summarised. 

Other sources cited: 

Goodwin-Gill, G. ‘The Refugee in International Law, 1996 (2nd ed).

Professor Jackson, Immigration Law and Practice 1st ed, P.Murphy, Murphy on Evidence, 5th ed.

I.Brownlie, Principles of Public International Law 4th Ed 387ff.

P. Weis, Nationality and Statelessness in International Law 1979.

C.A.Batchelor, "Statelessness and the Problem of Resolving Nationality Status" IJRL Vol.10 1998 157.

Case Law Cited: 

ICJ - The Nottebohm Case [1955] ICJ 4

UK - Bumper Development Corporation v Commissioner of Police of the Metropolis [1991] 1 WLR 1362

UK - John Joseph Akar v The Attorney General of Sierra Leone (Sierra Leone) [1969] UKPC 13

UK - Kingori v. Secretary of State for the Home Department, [1994] Imm AR 539

UK - R v Secretary of State for Home Department, ex parte Bradshaw [1994] Imm AR 359

UK - R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74