YL (Nationality-Statelessness-Eritrea-Ethiopia) Eritrea CG  UKIAT 00016
Date of hearing: 16 August 2002
Date Determination notified: 30.06.2003
|Secretary of State for the Home Department||RESPONDENT|
"It is an overriding interest of justice to achieve finality, subject only to a right of appeal in an appropriate case. That goal is flouted if a determination fails to achieve that. There is no difference in principle if the determination is restricted to a preliminary issue".
"Subsequent to the hearing in this appeal, the Appellant and her instructing solicitor attended at the Eritrean embassy to apply for citizenship papers for the Appellant. Their evidence concerning the refusal of citizenship is set down in Statements of Truth sent to the Tribunal by separate cover. This evidence was prepared for submission to the Secretary of State, as it was assumed that it was obtained too late for admission before the Tribunal….
…there is now fresh evidence that the Appellant has been denied Eritrean citizenship for lack of proof of her status…the Appellant`s only proof of her Eritrean connection is her language facility, and this does not meet the more exacting standards of proof set by the Eritrean authorities."
The adjudicator's treatment of the previous preliminary issue determination.
"…(c) provide for –
(i) a particular matter to be dealt with as a preliminary issue".
The appellant`s nationality
a). If she is Ethiopian and not Eritrean, then it is only necessary to consider whether she faces a real risk of serious harm in relation to Ethiopia;
b) If she is Eritrean and not Ethiopian then it is only necessary to consider whether she whether she faces a real risk of serious harm in relation to Eritrea;
c). If she is both Ethiopian and Eritrean, then it is necessary for her to demonstrate that she faces a real risk of serious harm in relation to both countries;
d). If she is neither Eritrean nor Ethiopian and is stateless, then on the evidence in this case it is necessary to consider whether she faces a real risk of serious harm in relation to her country of former habitual residence. Since she has never lived in Eritrea, her country of former habitual residence is plainly Ethiopia.
"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."
"1. A person who was born in Eritrea with an Eritrean father WOULD BE ELIGIBLE for Eritrean nationality.
2. The political views of 3 witnesses are NOT RELEVANT to establishing eligibility for nationality and obtaining an Eritrean passport.
3. The political views of the applicant for nationality are NOT RELEVANT to establishing eligibility for nationality and obtaining an Eritrean passport.
4. The voting in the 1993 Referendum is NOT A NECESSARY CONDITION to establishing nationality.
5.Paying a 2% tax on nationals overseas is NOT A PRECONDITION to establishing eligibility for nationality and obtaining an Eritrean passport.
6. Claiming refugee status overseas DOES NOT PRECLUDE ELIGIBILITY for Eritrean nationality or obtaining an Eritrean passport.
7. All application forms are filed in person by the applicant at the Embassy`s consular section. No application forms out of the standard provided by the Embassy are accepted."
"What is required is the signature of 3 witnesses who know the applicant and can testify that she was in fact born in Eritrea with an Eritrean father. Whatever might have been the position during the unsettled period before the war, or during the war, there is now no requirement that the political views of the three witnesses should be looked at. It has got to be three witnesses of appropriate standing who can simply testify that the appellant is who she says she is."
The returnability issue
"In his submissions to me Mr Buckley submitted that the appellant had to show a well-founded fear of persecution in Eritrea and referred me to paragraph 101 of the Handbook. He told me that the procedure for the return of a person to the country of their nationality was the same for every country. Eritrea was no exception. The process required the appellant to be documented. The nature of the documentation varies and some countries, for example, use a EU letter. The documentation requires the consent of the receiving country. If there is no consent there can be no removal. If the appellant feared that he might not be given a right of entry into Eritrea because she had not made contributions to Eritrea in the past or had not taken part in the referendum, that might lead to her being refused entry but it would not result in her being persecuted. If she is not admitted to Eritrea on arrival, she will be returned to the United Kingdom and given leave to enter here. However, she would not simply arrive and find these consequences are visited upon her".
Dual nationality of Ethiopia and Eritrea
DR H H STOREY
Note 1 The NZ Refugee Status Appeals Authority reasoned that Article 33 dictates that focus be placed on the act of expulsion or return and so the issue of whether return is possible is a matter of fact, not a matter of law. According to this approach, if there is a denial of entry, there is no risk of persecution: such a risk cannot exist where entry is, as a matter of fact, not going to happen.
Note 1 The NZ Refugee Status Appeals Authority reasoned that Article 33 dictates that focus be placed on the act of expulsion or return and so the issue of whether return is possible is a matter of fact, not a matter of law. According to this approach, if there is a denial of entry, there is no risk of persecution: such a risk cannot exist where entry is, as a matter of fact, not going to happen. [Back]