England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Monday, 18 November 2002

Monday, 18 November 2002

1. LORD JUSTICE SCHIEMANN: This is an appeal against a determination of the Immigration Appeal Tribunal dismissing the appellant's asylum appeal. Mr Lucas sought asylum on the basis that he was "a person who, owing to a well-founded fear of being persecuted for reasons of race, was outside the country of his nationality", which he claimed was Burundi, and was unable or, owing to such fear, was unwilling to avail himself of the protection of that country. This was refused because the Secretary of State did not accept that Mr Lucas was a citizen of Burundi. Before us Mr Pushpinder Saini, who appears for the Secretary of State, concedes for the purposes of the present case that had the view been formed Mr Lucas was a citizen of Burundi, then there might well be a risk of persecution as so defined.
2. The Adjudicator who heard this case held that it was for Mr Lucas to show that he was a citizen of Burundi. That is correct and is not disputed by Mr Vokes, who appears for Mr Lucas. The Adjudicator held that the standard of proof was that Mr Lucas had to show that there was a serious possibility that he was a Burundian. This is also correct and again is not disputed by Mr Vokes.
3. The Adjudicator, with the assent of the advocates for the parties, decided a preliminary point as to nationality at a preliminary hearing at which, however, no oral evidence was given. The appellant, although in this country, evidently decided not to give any evidence. It is not suggested that there was any error by counsel in refraining from calling the appellant and no complaint is made of the procedure adopted by the Adjudicator to which both parties assented.
4. The Adjudicator, as will often be the case, had little material in front of him with which to determine the matter of nationality, which can often be quite complex. The material which he had was a temporary permit issued by the South African authorities, which gave the appellant's surname as Simon and his first name as Lucas, stated that his country of origin was Burundi, and stated that the holder of the permit might reside temporarily in the Republic for the purpose of, it says, asylum seeker. Thus it seems he claimed asylum in South Africa. So that was a document which linked him with Burundi and states that he was of Burundian nationality.
5. There was before the Adjudicator, and there is before us, no indication as to what inquiries (if any) were made to establish his nationality. All that appears from the face of the document is that he had neither passport nor travel document. That is the first piece of evidence.
6. A second piece of evidence was an emergency travel document issued by the Tanzanian authorities accepting him as a citizen of Tanzania, albeit it seems with a clear disclaimer that the document did not establish a right to Tanzanian citizenship. That document for some inexplicable reason is not in our bundle.
7. The Adjudicator also had in front of him a record of two interviews which Mr Lucas had with the Home Office, in which he described various things in Africa. It is not necessary to go through that evidence because Mr Vokes does not seek to challenge the Adjudicator's decision as perverse. The Adjudicator came to the conclusion that Mr Lucas had failed to discharge the burden of proof upon him that he was of Burundian nationality. The Adjudicator went further after having considered the matter again at a further hearing a few months later where other matters were also at issue before him, and the Adjudicator there found that Mr Lucas was of Tanzanian nationality. So we have a situation where the Adjudicator finds that the appellant before him was not of Burundian nationality, but was of Tanzanian nationality. The Adjudicator said this in paragraph 12:

"I have already found, as a preliminary issue that the Appellant is not of Burundian citizenship and, having reviewed all the documentation and submissions I determine that he is in fact a citizen of Tanzania. The burden of proof is upon the Appellant to show to the lower standard that if he were to be returned to Tanzania he would have a well founded fear of persecution there for a Convention reason and consequently the United Kingdom would be in breach of its Convention obligations in returning him."

8. The Secretary of State has indicated that it is to Tanzania that he intends to return this appellant. The Adjudicator goes on to say in paragraph 13:

"I have not had the opportunity of hearing any oral evidence from the Appellant. Mr Vokes informed me that his instructions were that the Appellant continued to assert Burundian nationality but I have heard no direct evidence to that effect. I have already made a finding that the Appellant is not Burundian but rather Tanzanian. He may have asserted Burundian nationality when attempting to gain asylum status in South Africa and in the United Kingdom but I find it inherently unlikely that he would assert Burundian nationality if he were to be returned to Tanzania as his home country."

In paragraph 14 he goes on to say:

"Mr Vokes has accepted that if the Appellant is indeed an ordinary Tanzanian citizen there is no information to lead one to expect that he would be persecuted if returned to Tanzania. That, I consider to be the true situation. The question was raised as to whether the Appellant would face persecution in Tanzania by dint of the fact that he was returned on a temporary travel document which would lead to questions about his absence from the country. Having agreed to grant the Appellant a temporary travel permit I find it unlikely that the Tanzanian authorities would decide that he was a Burundian after all when in my view he is not. The question still remains whether the fact that he had been a Tanzanian citizen who had sought asylum elsewhere claiming Burundian citizenship would put him in danger in Tanzania such as to constitute a well founded fear of persecution on his part. I can see no evidence to support the contention that that would in Tanzania render the Appellant subject to ill-treatment which might amount to persecution. For the reasons stated above I do not, even to the lower standard of proof, find that the Appellant has established that if he were to be returned to Tanzania this would constitute a breach by the United Kingdom of its obligations under the Convention."

9. The challenge by Mr Vokes to this decision I confess I have had some difficulty in understanding. As I do understand it, it is this. He submits that it is not enough where an adjudicator has found that the appellant is not of a nationality claimed and has found that he is of another nationality, to dismiss the claim. The Adjudicator has, he submits, to go further and find that this is a case where the appellant's claim is wholly lacking in credibility or substance. He submits that on the basis that the first proposition is correct the Adjudicator must go on to assess the appellant's claim according to his claimed nationality.
10. These submissions are based on a decision of the Immigration Appeal Tribunal, Agartha Smith v Secretary of State for the Home Department, in which Dr Storey, the Chair of the Tribunal for that case, examined at some length principles of public international law and refugee law, and gave guidance as to the way adjudicators ought to approach cases.
11. It is no part of my present judgment to seek either to affirm every part and every sentence of what Dr Storey there said, or to reject it. As Keene LJ said, in granting permission for this appeal to be pursued in front of this court: "The IAT's decision in the present case seems to me to be sound, but it is properly arguable that it conflicts with the approach in Agartha Smith, the latter decision may go too far in some of the propositions it lays down."
12. For my part I agree that the Immigration Appeal Tribunal in the present case is sound, and that it is properly arguable in any event that some of the sentences in Agartha Smith may go too far. But I do not regard the present case as an appropriate one to give further guidance than that which the Tribunal has already given, for in the context of the present case, as it seems to me, the appellant's case is really unarguable. He has been found to be a Tanzanian. The Adjudicator has considered what will happen to him if he returns to Tanzania. The Adjudicator finds that there is not the appropriate degree of likelihood that he will be returned to Burundi. That, as it seems to me, is really the end of the matter.
13. Agartha Smith was a case in which there were not two nationalities in play, as there are in the present case, and the substance of the decision is that the Tribunal said that there may be cases where it is appropriate for an adjudicator, even when he finds that the applicant has not proved that he is of the nationality claimed, to consider whether or no he would be subject to persecution if he were of that nationality. For my part I would agree that there may be such cases; and indeed to some degree the present case was treated by the Adjudicator as such when he said that if this appellant were returned to Tanzania then it is unlikely that he would be returned to Burundi.
14. In those circumstances this appeal seems to me without prospect of success and I would dismiss it.
15. LADY JUSTICE ARDEN: I agree. The Adjudicator considered what would happen on the return to Tanzania of the appellant, not only on the basis that he was Tanzanian, but also on the basis that he had sought asylum elsewhere claiming Burundian citizenship.
16. In those circumstances it seems to me that this appeal cannot succeed.
17. MR JUSTICE AIKENS: I agree with both judgments that my Lord and my Lady have delivered.
(Appeal dismissed; costs to be subject to legal aid assessment).