Ivanov v Secretary of State for the Home Department (Georgia)  UKIAT 12583
Date of hearing: 10 August 1996
Date Determination notified: 29 October 1996
|Secretary of State for the Home Department||RESPONDENT|
The appellant (whom the Tribunal held on 26 October 1995 to be stateless) appeals against the decision of an adjudicator (Miss J. C. Gort) dismissing his appeal against the giving of removal directions as an illegal entrant. The appellant claimed asylum because of a fear of persecution in Georgia. Before the Tribunal the appellant was represented by Miss R. Chapman of counsel, and the Secretary of State by Mrs. K. Elam.
This case has been before the Tribunal since September 1995 and prior to this determination the Tribunal has given three rulings - (on 3 October 1995 R.12583, 2 October 1995 R.12583a and on 25 April 1996 R.12583b). In those rulings the Tribunal dealt with the relevance of nationality to an asylum claim, the principles to be applied in deciding an applicant's nationality and the application of those principles to this case.
The Tribunal held that the adjudicator's determination should be set aside for the following reasons. First there was doubt about the evidential foundation for some of the adjudicator's findings and secondly, the case for the appellant has to some extent changed in law. The original basis of the claim is maintained - that the appellant is likely to suffer persecution if returned because of a refusal to fight in the conflict in Georgia with Abkhazia. In addition there is now an asserted inability of the appellant to return to Georgia and new points as to whether as an ethnic Russian the appellant has been denied a Georgian passport and for that reason has suffered persecution for a Convention reason (see Ruling 12583b) and the likelihood of future persecution as an ethnic Russian.
The Tribunal considered the matter de novo. It heard oral evidence from the appellant and had before it objective evidence of circumstances in Georgia and documentary evidence as to citizenship of Georgia. Both representatives helpfully produced skeleton arguments as to the law and facts.
The backaround facts
Mr. Ivanov's evidence
Mr. Ivanov was born in Tbilisi in Georgia on 11 December 1968 and, apart from military service in the Russian army, lived there until he left in the autumn of 1994. Mr. Ivanov says he is Russian. He does not look like a Georgian and does not speak Georgian. His father and mother were born in Russia. His mother is dead. His father still lives in Tbilisi. Mr. Ivanov was found in the United Kingdom on 15 December 1994 walking along a road in Dover with a companion. Both were arrested and claimed asylum the following day.
Mr. Ivanov had at one time held an internal Soviet passport but this was not valid when he left Georgia. In spring 1994 as he did not have Georgian citizenship he had gone to the police station to apply for a Georgian passport. All his personal details were recorded on his Russian passport - his nationality being shown as Russian. The police completed a form and he was told to wait for the issue of the passport. Russian friends of his had had to wait a long time for Georgian passports. The grant of the passport would reflect the grant of citizenship.
Prior to his departure from Georgia in Autumn 1994 Mr. Ivanov lived with his father in a flat in a block of about 60 flats.
From 1989 - 1990 he underwent the then compulsory military service in the Russian army. He then worked in a factory for some 2 - 3 months and had a shop dealing in clothes bought from abroad. His net income from the shop was $ US l500-2000 monthly being commission on sales. He had no money problems.
Mr. Ivanov said that on two occasions in Autumn 1994 a group of about 5-6 armed men came to his flat. They were carrying Kalashnikov rifles and some were in military uniform. He could not say who they were, except they were people who wanted to fight. They were Georgian in appearance. They approached him, he thought, because he had undergone military training. He could not, however, say how that would be known to them. They had not approached anyone else in the flats but there had been such approaches to Russian friends of his and at the beginning of summer in 1994 one of his acquaintances (Andre Fitisov) had been killed by such people.
When asked whether the group said who they were, Mr. Ivanov said that his friends had already told him that such people were going about. Such groups were heavily armed with tanks - they could be seen on the border with Abkhazia. He had seen them on television. They were talked about and the people in civilian clothes had a similar appearance to those with tanks. He thought the group which visited him was connected with the government because they were heavily armed with weapons that could not be bought.
On the first visit the men came in the evening and stayed no longer than one hour. He was hit several times with fists and the automatic weapons and verbally threatened. On the following day he reported the incident to the police but they did not wish to help - probably because he was Russian. The Georgians discriminate against the Russians.
On the day following his reporting the incident the men returned - this time early in the morning. Mr. Ivanov was beaten and was told that they would come again to "sort him out". He saw a doctor for treatment to his injuries. On both occasions his father was there but was neither assaulted nor threatened.
Mr. Ivanov said he was frightened by the visits, was afraid the men would come again and that he would be killed. Some hours after the second visit he ran away. There was about $ US 10,000 in the flat (nobody keeps money in banks) and he took with him $200-$300 or a little more.
When he left Tbilisi he had no particular place in mind to where he was going to go. It was common practice to obtain lifts in cars (sometimes for money) and he did this. Avoiding major roads and road checks he eventually reached Zaporozhye after some 24 hours. He avoided Abkhazia. At Zaporozhye he went to the railway station. The next train was going to Odessa. He bought a ticket paying in Ukrainian money (about $ US 10 in value) and took the train. The journey was overnight.
Mr. Ivanov said he arrived in Odessa some 3-4 days after leaving Tbilisi. He went to the police but was told that "it was not their problem". He thought he might stay in Odessa but here was no work. He met a man from Georgia who was also running away. He suggested that it may be better to travel abroad. They stowed away on a ship which took them to Genoa. They had no idea where the ship was going but because it was large knew that it was going abroad. They got on board by climbing up the cables securing the ship to the quay. They took food and drink and hid in a hold. They were there two days before the ship sailed and 3-4 days before it docked at Genoa. The food and drink was not enough.
At Genoa they hid inside a load which was lifted off by crane. They were not seen and when on land met some Russians who told them that if they stayed in Italy they would be homeless. The Russian then told them how they could get to the United Kingdom and claim asylum.
Mr. Ivanov and his friend then stowed away in a second (English) ship. It was carrying a cargo of iron or some sort of metal. The journey took 2-3 days. They hid in a load and were unloaded with it into a railway wagon. The wagon moved backwards and forwards. They stayed in the wagon until night time, then crawled out and climbed a fence onto a road. While looking for a police station to claim asylum they were stopped by the police and arrested. They could not then claim asylum as the police did not understand them. The next day they were provided with an interpreter and made the claim.
When asked about the length of time taken over the journey from Tbilisi, Mr. Ivanov said he thought it was 3 to 31/2 weeks or a bit longer. He could not recall the date of the visits of the armed men.
Since being in the United Kingdom Mr. Ivanov has written to his father but has received no reply. Mr. Ivanov said that if he were sent back to Georgia he would be killed by those who had approached him as he had refused to fight. Further, as a "Russian" living in Georgia he would suffer discrimination. While he could operate his own business it would be difficult to work in a state enterprise.
The objective evidence and its relevance
As to Mr. Ivanov's arrival, a letter from the Dover Harbour Board of 24 April 1996 states that according to records no ship arrived in Dover from Genoa between 13 - 16 December 1994.
Evidence as to the general situation in Georgia and the conflict relating to Abkhazia is before us, the most up to date being the U.S. State Department Report 1995 and an extract from the Europa World Year Book 1995. We were also referred to the State Department Report 1994, extracts from monthly News Digests of 1994 and January 1995 of Keesings Record of World Events and a report of the Human Rights Watch and a letter from Dr. George Hewitt, reader in Caucasian languages at the School of Oriental and African Studies.
From this evidence it is clear that the conflict with Abkhazia remains unresolved with Abkhazia declaring independence in 1994 and Georgian, Russian and international organisations refusing to recognise it. There may be some support for the appellant's story in that in 1992 or 1993 there are reports of roving armed units such as he described. In 1993 there is a report of "disorganised" forces from the Georgian National Guard being involved in fighting in Abkhazia. Further in 1994 Georgian government troops were apparently still active in Abkhazia. The Human Rights Watch Report of March 1995 stresses the creation of independent armed groups some with loyalty to a warlord and that much of the destruction in Abkhazia stems from the activities of undisciplined armed bands. Often the violence is directed according to ethnicity - the units are bound together out of personal loyalty, hope of booty or revenge. It is said, however, in Keesings Record that in September 1994 there was agreement by the Georgian government that groups of irregulars, harassing civilians in front line areas, would be disarmed and in October all Georgian government troops had been withdrawn from Abkhazia. In November 1994 the Georgian army "neutralised" an irregular unit of 200 armed men near Tbilisi. In January a force of irregulars was disarmed in Western Georgia. We accept, as Dr. Hewitt forcefully says, that there is evidence of ethnic hostility between Georgians and Russians.
The latter point overlaps with the evidence as to Mr. Ivanov's ability to return to Georgia and in that context in its ruling of 26 October 1995 the Tribunal set out an extract from a letter of Professor Donald Rayfield of 9 October 1995. This reads:
"I can confirm that normally no resident of Tbilisi, even if born there, who is recorded as having Russian nationality in his internal passport, who has northern European features (i.e. blue eyes, blond hair) and who does not speak Georgian fluently has any chance of being recognized as a citizen of Georgia. The only exceptions would be made for those capable of paying a substantial bribe or those who were willing to serve one of the warlords (e.g. Jabu Joseliani and his Mkhedrioni) in fighting Abkhaz separatists or Gamsakhurdsia supporters. Your client is quite right in thinking he would never be allowed back to Georgia otherwise."
As to the appellant's nationality, evidence in addition to that considered by the Tribunal when ruling on 26 October 1995 that he was stateless is contained in a letter of 29 May 1996 to the British Consulate in Georgia from the Georgian Ministry of Foreign Affairs. That letter was the response to queries addressed to the Cansulate by the Presenting Officers Unit. The letter from the Unit reads:
"We spoke today. I should be grateful if you could confirm the citizenship status in a case where a person was born in Gruzia on 11.12.68. He had Russian parents and he had lived in Tblisi all his life. He had an internal Russian passport which expired in 1992. We do not know how he was described in this document. It would be helpful if you could say:-1. Would such a person be entitled to be issued with a full Georgian passport?2. What evidence would he have to supply to obtain it?3. How long would it take to be issued?4. If such a passport could not be issued would he be required to apply for Georgian citizenship in order to obtain one?5. In those circumstances would such a person, who had been born in Georgia and had lived there all his life be given citizenship automatically?
I am sorry to trouble you with these questions but I should be grateful for an early reply."
The reply from the Georgian Ministry reads:
"As a reply to your FAX 0170-603-5325 I have the honour to inform You of the following:According to the paragraph "A" of the article 3 of the "Law about the citizenship of Georgia (March 29.1993) the person who had been living in Georgia for not less than 5 years and lives in the country for the day of entrance into force of this Law (March 27, 1993) and does not declare in written form about rejection of citizenship of Georgia during 6 months is recognised as a citizen of Georgia.So, the persons who do not answer the requirements of the paragraph "A" of the article 3, live outside the territory of Georgia and own the ex-USSR passport issued in the Republic of Georgia are not considered as citizens of Georgia. According to the request of these persons the Diplomatic Representations and Consulates can issue the certificate proving the above-mentioned for producing to the authorities of other countries.If a person living outside Georgia wants to obtain Georgian passport he must apply to the Georgian Diplomatic Representatives or Consulates with the request to restore Georgian citizenship.The request for restoration of citizenship must be examined during 1 year."
The legal framework
Article 1A(2) of the Refugee Convention defines a refugee:
"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 of 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 and being outside the country of his former habitual residence as a result of such events, 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."
To establish a well-founded fear the applicant must show a subjective and objective fear although it may be difficult to refuse a claim if an objective fear is established. The criterion in respect of all aspects is the "serious possibility" (Sivakumaran v. Secretary of State  Imm AR 147; Kaja  Imm AR 1).
An applicant for asylum will make the claim in respect of a particular country or countries. If that claim is not made out in respect of that country, in practice it may not then be necessary to make any finding as to nationality (see e.g. Prince (13751). On the other hand it will normally be essential to decide the issue of nationality in order to focus on the country relevant to the claim - and indeed the claim could not succeed without such a decision. Where nationality is relevant it is for the applicant to establish his nationality or to establish that he is stateless. This is a question of evidence and it is feasible that the applicant will not establish statelessness even though nationality remains uncertain - as where he is seeking to conceal it (see Prince).
Nationality becomes irrelevant only if no serious possibility is shown in the country in respect of which the claim is made and inability to return is not an issue. So in this case where the claim is made in relation to Georgia if the sole basis of the claim was a well-founded fear of returning and that were held not to be made out, the application would fail. However, as we say, it could only succeed on that ground if Georgia was the country relevant to the claim i.e. the country of nationality or if appropriate habitual residence. Further, the claim based on inability to return may well depend on whether the appellant is a citizen of Georgia. We turn first therefore to the issue of nationality.
The nationality of the appellant and its relevance
The only evidence in addition to that already considered by the Tribunal in holding the appellant to be stateless is that of the correspondence with the Georgian government that we have set out. On its face it is not entirely consistent with the Georgian nationality law which was before us on the earlier occasion and remains before us. Article 5.1 reads:
"Pursuant to Art.3(a) of the new nationality law, all persons who have been permanently resident in Georgia for a period of at least five years and who were residing in Georgia on the day of entry into force of the nationality law, and who receive within a period of four months the papers confirming their nationality are considered as Georgian citizens."
The effect of not receiving nationality papers within the required period remains uncertain. Further, even if the appellant did formerly qualify for Georgian citizenship the final paragraph of the letter of 29 May 1996 seems to infer that a person such as the appellant would have to request a "restoration" of citizenship. We see no reason to doubt the appellant's evidence as to his citizenship application. In our view, there therefore remains a serious possibility that at the date of hearing the appellant is not a Georgian citizen. No further argument has been advanced as to any Russian citizenship and we declare that on the evidence before us that Mr. Ivanov is stateless.
It is common ground, however, that Georgia is the appellant's state of habitual residence and therefore any claim based on unwillingness to return depends on precisely the same elements as it would if he were a Georgian national. The finding of statelessness goes only to the issue of ability to return.
The claim based on unwillingness to return
The basis is fear of being persecuted (i) by armed bands uncontrolled or condoned by the government of (ii) because of his Russian ethnic origin.
(i) The fear of armed bands
The reasons given why the appellant left Georgia go only to this ground - the fear of the armed bands because of what had occurred. The appellant's story is in many respects bizarre if viewed from the safety of the Strand. The one objective fact - his arrest on 15 December 1994 - is difficult to fit with his story of his journey because of the date of departure from Georgia and the duration of the journey. If, however, the whole story is a concoction, how did the appellant get to the place where he was found? And why lie about how he got there?
The appellant gave his evidence confidently and consistently with that given in interview and before the adjudicator. The story has its peculiarities and a degree of vagueness creating doubts. We have our suspicion that there is a degree of embellishment about the underlying reason for leaving Georgia. We are, however, prepared to accept that there was a serious possibility that the appellant left Georgia because of a fear of being involved in the conflict with Abkhazia and, given the objective evidence, that at that date there was a serious possibility that that might occur through the activities of (and recruitment by) armed bands.
However, that was 1994 and we have no evidence that in 1996 the same situation prevails. While in 1995 Professor Rayfield refers to an ability to return depending on agreeing to fight for a warlord, this is not to be equated with Russian residents in Georgia being "approached" to join the conflict in 1996.
There is no evidence that the authorities in Georgia would now fail to control the armed bands or to offer protection to the appellant were he to be approached. Even assuming a continued subjective fear, such objective evidence as there is points to action by the Georgian government to control the "armed bands" and irregulars. There is no objective evidence as to forced recruitment by these bands or that any such recruitment would be condoned.
Secondly, and affecting both 1994 and 1996, there is no evidential foundation for any persecution or likely persecution for a Convention reason. There is no evidence that recruitment was aimed at those of Russian ethnic origin.
There is little, if any, evidence that the armed bands had as their targets any group which could quality as a "social group" under the Convention. Miss Chapman argued that this group was made up of "young men who had previously served in the Soviet army" - but, with respect, the only evidence for this is the surmise of the appellant. It is simply not shown that such a "group" exists, and even if it did, that it has any meaning save for the asserted persecution. No Convention ground other than race or social group is relevant to this aspect of the claim. On this ground alone therefore the appellant's case fails if based on asserted persecution by armed bands.
(ii) Discrimination because of ethnic origin
We accept that discrimination may amount to persecution (see e.g. Gashi (13695)) and we appreciate that there are ethnic problems in Georgia. However, apart from the delay in issue of the passport there is not the slightest evidence that Mr. Ivanov suffered any discrimination amounting to persecution. His evidence was that he ran a shop and had no money problems and apart from the passport question he gave no instance of any discrimination.
The evidence as to the passport amounts at most to delay - the appellant said that his friends had to wait some time for passport, not that they did not receive them. Further, it is apparent from the letter from the Georgian government that Mr. Ivanov could apply for citizenship - and he has not. The circumstances outlined by Mr. Ivanov cannot, in our view, arguably amount to persecution.
The claim based on inability to return
For Mr. Ivanov to succeed he must show that at the date of hearing he was unable to return to Georgia, and that at the date when this inability occurred he was outside Georgia because of a well-founded fear of persecution (see Radivojevic (13372)).
In our view, Mr. Ivanov fails to show an inability to return at the date of hearing. Whatever else the letter from the Georgian government shows, there is no doubt that the appellant could apply for citizenship. Further, when the appellant left Georgia, he had not been denied a passport - it had not yet been granted. We accept that delay may become denial, but on the evidence now before us Mr. Ivanov cannot show such a denial or that any citizenship application would be refused. Just as the Tribunal should not speculate on the result of a citizenship application so as to declare an applicant a citizen, so it should not speculate that a possible application would be refused.
As in our view Mr. Ivanov has not shown that at the date of hearing he could not return to Georgia or a well-founded fear of persecution if returned there, we need not consider if at any date there was both a well-founded fear and an inability to return.
The appeal is dismissed.
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