FA (Eritrea – nationality ) Eritrea CG  UKIAT 00047
Date of hearing: 14 December 2004
Date Determination notified: 18 February 2005
|Secretary of State for the Home Department||RESPONDENT|
"Any person born to a father or mother of Eritrean origin in Eritrea or abroad is an Eritrean national by birth.
Article 2(2) then defines Eritrean origin thus:
"A person who has 'Eritrean origin' is any person who was resident in Eritrea in 1933."
'The appellant's account of her background, the truthfulness of which appears to be accepted by [the Adjudicator], was that she was the child of a father of Eritrean regional origin born about 1940 and of a mother of Ethiopian origin born in the late 1940s. The appellant was resident in what later became the territory of independent Eritrea from birth to the age of 2½ years, thereafter living entirely in Ethiopia.'
'7.1.2 The Eritrean Nationality Proclamation No. 21/1992 published in April 1992 details the criteria and law as regarding Eritrean Nationality. Nationality in this document is split into several sections: Nationality by Birth; Naturalisation; Adoption and Marriage.
7.1.3 According to Tewolde, "many people misunderstand the Nationality Proclamation, this is understandable as we are a new country and are trying to be as inclusive as possible to all our citizens born in years of foreign domination. Basically if your parents or grandparents were born in Eritrea you will certain be entitled to Eritrean nationality but will have to prove this, as you would anywhere in the world".
7.1.4 The source further explained that "If you are born in Eritrean territory [regardless of who it belonged to at the time] then you will also be eligible. Many people have also returned to Eritrea since independence. They are very welcome regardless of the circumstances as we try to rebuild our nation after years of domination and war".
7.1.5 According to the Nationality Proclamation, current Eritrea regard to naturalisation takes the year 1933 as the starting point. This is the year in which the Italian colonial government registered the population of the colony and declared those registered as legal residents. Therefore, these persons who have an absolute right to Eritrean citizenship are all those who were themselves or who are the descendants of persons resident in Eritrea prior to 1933.' (emphasis added)
'... His view is that these witnesses should not be hard [sic] to provide as a proof of nationality 'they will be in groups of other Eritreans, if Eritrean is what they are. So proving Eritrean nationality is easy. Much more so than for a British or American citizen.'
Evaluation and Conclusions
'1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws
It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality ...
Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.'
'44. Since it is common ground that the appellant is not as yet recognised as a national of Eritrea, it may be asked, why is it legitimate to even consider whether she is a national of Eritrea? Fortunately in order to answer this question we do not need to embark on an analysis of the complexities of nationality law. That is because, following Bradshaw  IMM AR 359, we consider it settled law that when a person does not accept that the Secretary of State is correct about his nationality, it is incumbent on him to prove it, if need be by making an application for such nationality. That is all the more necessary in the case of someone claiming to be a refugee under the Refugee Convention. Under that Convention, establishing nationality (or statelessness) cannot be left as something that is optional for the claimant. The burden of proof is on the claimant to prove his nationality (or lack of it). To leave it as an optional matter would also make it possible for bogus claimants to benefit from international protection even though in law they had nationality of a country where they would not be at risk of persecution – simply by not applying for that nationality. Furthermore, leaving it as an optional matter would render unnecessary provisions of the definition in Article 1A(2) which require a person to be outside the country of his nationality or outside the country of his former habitual residence and which place special conditions on persons who have more than one nationality. As was said by Rothstein J in the Canadian Federal Court case of Tatiana Bouianova v Minister of Employment and Immigration  FCJ No 576, a case dealing with statelessness, "[t]he definition should not be interpreted in such a manner as to render some of its words unnecessary or redundant."
45. Bearing in mind that the burden of proof rests on the claimant, it is always relevant to enquire in such cases whether a person has taken steps to apply for the nationality of the country in question or, if they have taken steps, whether they have been successful or unsuccessful.
46. We would accept that in asylum cases the Bradshaw principle has to be qualified to take account of whether there are valid reasons for a claimant not approaching his or her embassy or consulate – or the authorities of the country direct – about an application for citizenship or residence. In some cases such an approach could place the claimant or the claimant's family at risk, because for example it would alert the authorities to the fact the claimant has escaped pursuit by fleeing the country. However, by no means can there be a blanket assumption that for all claimants such approaches would create or increase risk. It is a matter to be examined on the evidence in any particular case. The 1979 UNHCR Handbook does not require a different position to be taken: paragraph 93 clearly contemplates a case-by-case approach.
47. As noted earlier, we now have the judgment in the Court of Appeal in Zaid Tecle EWCA Civ 1358 published on 6 September 2002 as well as Mrs Cronin's submissions on it. We note that what it says about nationality in relation to a claimant who was also born in Asmara with an Eritrean father, supports the view we have taken here. Brooke, LJ, stated at paragraph 23:
"In my judgment, given the material from the British Embassy which was before the Adjudicator and the Tribunal in this case, the Tribunal was entitled, having regard to that and having regard to the CIPU Report, to take an adverse view of the fact that the appellant, on whom the burden of proof lay, had not contacted the Eritrean Embassy in London and made an application, supported by three appropriate witnesses, for citizenship."'
9. This finding of Eritrean nationality essentially caused the Adjudicator to dismiss the appeal on the strength of the appellant's own acceptance elsewhere that she did not have a well-founded fear of persecution in Eritrea.