UK - Upper Tribunal (Immigration and Asylum Chamber), 7 March 2011, KK and others (Nationality; North Korea) Korea CG [2011] UKUT 92

Country of Decision:
Country of Applicant:
Date of Decision:
07-03-2011
Citation:
[2011] UKUT 92 (IAC)
Court Name:
Upper Tribunal (Immigration and Asylum Chamber)
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Headnote: 

For the purposes of Art 1A(2) of the 1951 Refugee Convention a person is “of” or “has” a nationality where it is established that  he or she is already of that nationality or he or she is not of that nationality but is entitled to it.  The person should not be considered to hold a nationality if he or she only “may” be able to acquire it.

In assessing nationality in claims for refugee status, nationality is a matter for the State in question’s law, constitution and (to a limited extent) practice which should be proved by evidence and decided on, as a matter of fact, by the court deciding the protection claim.  In considering whether a person is a national or is entitled to a nationality of a second State, the person must use their “best efforts” to clarify their status.  The evidence of the attitude of a State towards a person who is seeking not to be removed to that State may be of very limited relevance.

Facts: 

The applicants were nationals of North Korea who had fled, eventually seeking asylum in the UK.  It was accepted that they had a well-founded fear of persecution in North Korea. However, the Secretary of State asserted that the applicants were all dual nationals, being additionally nationals of South Korea as a result of the operation of South Korean nationality law, and that they did not have a fear of persecution or serious harm in South Korea.  The Secretary of State therefore argued that their claims for international protection should be dismissed.

The applicants adduced evidence that showed that, in practice, the South Korean authorities applied their nationality law to North Koreans in a restrictive way and, in addition, that the South Korean consular authorities in the UK would not consider the applicants’ applications to be recognised as South Korean nationals until their asylum claims were concluded. The applicants also adduced evidence to show that the South Korean authorities would not recognise North Koreans as nationals if they had been outside of the Korean peninsula for 10 years.

Decision & Reasoning: 

The Tribunal allowed the appeals on the limited basis that the applicants had lived outside the Korean Peninsula for 10 years and that South Korean practice indicates that they are presumed to hold another nationality (apart from the nationality of North Korea).

The Tribunal also considered a number of issues of law.  In particular how dual nationality affects claims for refugee status, what constitutes nationality for the purposes of the 1951 Refugee Convention and evidentiary criteria for assessing nationality.

In considering the issue of dual nationality the Tribunal noted that Art 1A(2) of the 1951 Refugee Convention made specific provision, providing that “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.”  The Tribunal held that this provision “operates to preserve the nature of international protection as surrogate or of last resort. If a person has nationality of a country where he is not at risk of persecution, it is the protection of that country rather than of the international community that he should seek”.

Further, the Tribunal held that an applicant should be found to be a dual national if he or she held the nationality of another State or if he or she did not hold that nationality but was entitled to acquire it, for example by simply making an application.  An applicant should not be considered to hold that nationality where he or she may only be able to acquire it.

Finally, the Tribunal held that assessing the nationality of a foreign state was an issue of fact that had to be considered by reference to evidence. It is a matter for the State in question’s law, constitution and (to a limited extent) practice which should be proved by evidence and decided on, as a matter of fact, by the court deciding the protection claim.  The person must use their “best efforts” to engage with the potential State of nationality’s authorities to allow the court to assess whether they have or are entitled to acquire a nationality. The response of a State to a person who seeks reasons for not being removed to that State may be of very limited relevance because the individual may not meet the “best efforts” requirement. The Tribunal emphasised that refugee status was not a matter of choice and that “a person cannot be entitled to refugee status solely because he or she refuses to make an application to her Embassy, or refuses or fails to take reasonable steps to obtain recognition and evidence of her nationality.”

Outcome: 

Appeal allowed. The Tribunal additionally gave country guidance on how the claims of North Koreans ought to be treated.

Observations/Comments: 

The Tribunal’s decision is inconsistent with UNHCR Handbook, paragraph 107 which give specific guidance on how the claims of dual nationals ought to be considered.

The Tribunal considered that its approach to the proof of nationality was consistent with MA (Ethiopia) [2009] EWCA Civ 289 (see separate summary) and Bradshaw [1994] Imm AR 359 (see separate summary).  However, the Tribunal also considered the requirement stated in Bradshaw that before an applicant is found to be stateless, he or she must apply to every country “with which he or she is associated”.  It held that even though this expressed as a rule of legal principle, should be considered as a matter of evidence.  Thus, “if the evidence is that nationality will be acquired on application, a decision maker ought to be entitled without more to treat the person as a national of the country in question, for the purposes of the Refugee Convention.”

Other sources cited: 

James C. Hathaway, The Law of Refugee Status.

Case Law Cited: 

Australia - Jong Kim Koe v Minister for Immigration [1997] FCA 306

Australia - Lay Kon Tji v MIEA (1998) 158 ALR 681

Australia - MZXLT v Minister for Immigration [2007] FMCA 799 from Australia

Australia - NAGV v Minister for Immigration [2005] HCA 6

Australia - NBLC v Minister for Immigration [2005] FCA 1052

Australia - SRPP v Minister for Immigration [2000] AATA 878

Canada - Bouianova v MEI (1993) 67 FTR 74

Canada - Katkova v Canada [1997] 40 Imm LR (2d) 216

Canada - Williams v Canada [2005] 3 FCR 429

Canada - Zdanov v MEI (1994) 81 FTR 246

ICJ - The Nottebohm Case [1955] ICJ 4

UK - MA (Ethiopia) [2008] UKIAT 00032

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

UK - Stepanov v Secretary of State for the Home Department [2001] 01 TH