[2005] UKAIT 161
- Case title: MA (Statelessness, Removal, KF applied)
- Appellant name: MA
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Saudi Arabia
- Judges: Mr C M G Ockelton, Ms AC McGavin
- Keywords Statelessness, Removal, KF applied
The decision
ASYLUM AND IMMIGRATION TRIBUNAL
MA (Statelessness; Removal; KF applied) Stateless [2005] UKAIT 00161
THE IMMIGRATION ACTS
Heard at: Glasgow Hearing Centre Date of Hearing: 28 October 2005
Before:
Mr C M G Ockelton (Deputy President)
Ms A C McGavin (Immigration Judge)
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Brown of Drummond Miller Solicitors
For the Respondent: Mr B Craven, Home Office Presenting Officer
In the case of a person found to be stateless, the principles expounded in KF (Iran) [2005] UKIAT apply. The context of the appeal is given by the country specified in the notice of decision and the claimant’s case must be made by reference to that country.
DETERMINATION AND REASONS
1. The Appellant was born in Saudi Arabia of a Somali father and a Yemeni mother. He lived in Saudi Arabia until he came to the United Kingdom on 10 August 2001, by which time he was aged nineteen. His mother had died in December 2000; he had not seen his father for many years.
2. He claimed asylum in the United Kingdom soon after his arrival. After allowing the claim to mature for nearly three years, the Secretary of State refused it and on 5 July 2004 made a decision to remove the Appellant as an illegal entrant, nominating Yemen as the proposed removal destination. The Appellant appealed. His appeal was heard by an Adjudicator, Mr W P Scobbie, who dismissed it in a determination sent out on 7 December 2004. The Appellant applied for and was granted permission to appeal to the Immigration Appeal Tribunal. Following the commencement of the appeal provisions of the 2004 Act, that grant of permission operates as an order for reconsideration by this Tribunal, limited to the grounds upon which permission was given: see Rule 62(7) of the 2005 Procedure Rules. It is fair to say that Mr Brown, who appeared for the Appellant, had some difficulty in associating the submissions he wished to make with the grounds upon which the Appellant had obtained leave. In the circumstances, and particularly because of the terms of the grant of permission and the somewhat cryptic way in which the grounds were drafted, we did our best to interpret the latter in the widest way properly possible.
3. The Adjudicator made a number of findings and assertions of fact, none of which is the subject of any challenge now. So far as concerns the Appellant’s citizenship, he asserted that the Appellant is not a citizen of Saudi Arabia; he found on the basis of evidence before him that it was “most unlikely that the Appellant would ever be able to obtain citizenship of Yemen”. The Appellant said in one of his witness statements that he regarded himself as a citizen of Somalia but it was accepted before us that there was no reason to suppose that he is Somali or entitled to Somali citizenship, and the Adjudicator does not appear to have treated him as so entitled. The Adjudicator also found that the Appellant’s evidence as to his parentage and upbringing was accurate and credible. The Adjudicator rejected, however, the Appellant’s claim to have been arrested by the Saudi police following the death of his mother and only released following a payment by his aunt. The Adjudicator’s conclusions on the Appellant’s status are in paragraph 31 of his determination:
“I had to decide whether the appellant was a refugee and whether he had a well-founded fear of persecution. I decided that he had not. All that had happened to the appellant was that he left Saudi Arabia because he was worried that the police were looking for him. As indicated above, I had dismissed his evidence that he had been arrested by the police. The fact that the appellant left because he was frightened that the police would arrest him falls very short of amounting to persecution.”
4. The first ground of appeal pursued on the reconsideration before us was that the Adjudicator had failed to make a clear decision as to whether the Appellant was stateless, and to analyse the evidence before him of the consequence of statelessness. It is fair to say that the determination contains no clear finding that the Appellant is to be regarded as stateless. But it is important to consider the context of the claim of statelessness. Statelessness is of great importance in asylum law, because a person who has a nationality has to have his status as a refugee or not determined by reference to his nationality; but a person who is stateless has his status as a refugee determined by reference to his country of former habitual residence. In the present case, there can be no conceivable doubt that the Appellant’s country of former habitual residence is Saudi Arabia. The Adjudicator asserted that the Appellant is not a citizen of Saudi Arabia and it has not been suggested that he was wrong to do so. We think that, in reality, the Adjudicator did regard the Appellant as stateless, because he had ruled out or ignored all the countries of nationality that had been suggested. But whether or not that is so, there is no doubt that the Adjudicator evaluated the Appellant’s asylum claim by reference to the risk of his persecution as a non-national in Saudi Arabia.
5. In making that evaluation, he considered the Appellant’s past history and made his findings, which we have set out above. Given those findings, the only basis upon which it could be said that the Adjudicator erred in law in not finding that the Appellant was a refugee would be material before the Adjudicator which should have led him to the conclusion that the Appellant would be at risk of persecution at the time of the determination, despite his lack of experience of persecution (as the Adjudicator found) in the past. There was no such evidence before the Adjudicator.
6. From this it follows that, whether or not the Adjudicator erred in his treatment of the issue of statelessness, it can have made no difference to his decision. The substance of the claim based on statelessness is precisely the substance of the claim which the Adjudicator considered.
7. The second principal ground of appeal was that the Adjudicator failed to deal properly with the consequences of the Appellant’s return to Yemen, as proposed in the notice of decision. He wrote this:
“There was no evidence put before me that on arrival at Yemen he would be subject to any treatment which could be in breach of Article 2 or Article 3 of the 1950 Convention. Certainly, it might well be a possibility that Yemen might refuse to accept him and he might be sent back to the United Kingdom. However, that is a matter which is outwith my jurisdiction.”
8. The grounds took particular exception to that last sentence. It appears to us that it is right to say that, in an appeal raising asylum and human rights grounds, the Adjudicator was indeed obliged to consider whether the course of action proposed by the Respondent was one which would infringe the Appellant’s human rights. The practicability of return is no doubt something which the Adjudicator could not consider: but the effect on the Appellant of the proposed return if it could take place was something which he should have considered. The Adjudicator’s reference to Articles 2 and 3 no doubt amounts to some consideration of that issue, but we allowed and encouraged Mr Brown and Mr Craven to explore it before us.
9. Mr Craven asserted that, despite any confusion caused to the Adjudicator by other statements by other Presenting Officers, the removal directions were indeed for Yemen. No doubt in making that assertion he had in mind the provisions of Regulation 5(1) of the Immigration (Notices) Regulations 2003 (SI 2003/658) which provide that a notice of a decision to remove as an illegal entrant has to state the country or territory to which it is proposed to remove the person. The original notice, against which this Appellant appeals, gave Yemen as the proposed destination; it appears that any new destination would have to be given in writing and arguably would need to be part of a new notice of decision which would create a new right of appeal: see KF (Iran) [2005] UKIAT 00109 at paragraph 77. Thus there can be no doubt that removal to Yemen is the context of the present appeal. As is also clear from KF, the Appellant has no right of appeal on the ground that the country proposed for removal is one which in his case does not fall within the provisions of paragraph 8 of Schedule 2 to the 1971 Act. That is because his appeal is against the decision to remove him, not against the removal directions. On the other hand, however, he clearly does have a right of appeal on the ground that the projected removal would breach his human rights.
10. Mr Craven suggested in a number of his submissions that the truth of the matter was that the Appellant would be entitled to Yemeni citizenship. We entirely disregard those submissions: they are evidently contrary to the Adjudicator’s findings of fact in the determination which would have to be the basis of any lawful removal of the Appellant. The question then is what would be the consequence of the Appellant’s removal to Yemen, given that he is not and is unlikely ever to be a citizen of Yemen?
11. Although the Appellant has no right of appeal based on paragraph 8 of Schedule 2, nothing that we have heard suggests that the Secretary of State would be minded to do anything unlawful in the Appellant’s case. We must therefore regard the removal as one which, if it took place, would take place in accordance with the provisions of paragraph 8 of Schedule 2. Looking at that paragraph (the provisions of which are well known), we note that in the present case the Appellant is not a national of Yemen, he has not been given a travel document by Yemen, and he did not embark in Yemen. It follows that he could be removed to Yemen only on the basis that there is reason to suppose that he will be admitted there. Mr Craven told us that there would have to be negotiations with the Yemeni Embassy before any removal to Yemen could take place. That appears to us to be a proper interpretation of the limit on the Secretary of State’s powers under paragraph 8 of Schedule 2. In any event, it provides a suitable context for us to determine whether the Appellant can show that his removal to Yemen would infringe his human rights.
12. That context must therefore be that of a non-Yemeni national removed to Yemen under arrangements made with the Yemeni Embassy in the United Kingdom. Mr Brown put before us a number of materials which had also been before the Adjudicator which tend to show that nationals of other countries resident in Yemen are liable to deportation to those other countries. He readily accepted, however, that there is nothing to show that people resident in Yemen that have no nationality are liable to any similar treatment. It appears to us, having considered all the arguments put to us, that there is no basis for saying that a person in respect of whom the Secretary of State had made arrangements for admission to Yemen would be treated there contrary to his rights under Article 3 as a consequence of his removal to Yemen. There is no other basis upon which a claim based on this ground could properly succeed. Although we have dealt with it at greater length, that is precisely the conclusion reached by the Adjudicator in the passage from his determination which we cited.
13. It may well be the case, as Mr Brown suggested, that removal to Yemen will turn out to be impracticable. That is a matter which the Adjudicator also dealt with. We agree that practicability is not a matter to be considered in this appeal. If the Respondent finds that he cannot remove the Appellant, no doubt he will not do so: if he seeks to remove the Appellant to a different destination, he will need to cite that destination in a new notice of decision.
14. For the foregoing reasons, we find that there was no material error of law in the Adjudicator’s determination, which we accordingly affirm.
C M G OCKELTON
DEPUTY PRESIDENT
Date: 14 Nov 2005
MA (Statelessness; Removal; KF applied) Stateless [2005] UKAIT 00161
THE IMMIGRATION ACTS
Heard at: Glasgow Hearing Centre Date of Hearing: 28 October 2005
Before:
Mr C M G Ockelton (Deputy President)
Ms A C McGavin (Immigration Judge)
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Brown of Drummond Miller Solicitors
For the Respondent: Mr B Craven, Home Office Presenting Officer
In the case of a person found to be stateless, the principles expounded in KF (Iran) [2005] UKIAT apply. The context of the appeal is given by the country specified in the notice of decision and the claimant’s case must be made by reference to that country.
DETERMINATION AND REASONS
1. The Appellant was born in Saudi Arabia of a Somali father and a Yemeni mother. He lived in Saudi Arabia until he came to the United Kingdom on 10 August 2001, by which time he was aged nineteen. His mother had died in December 2000; he had not seen his father for many years.
2. He claimed asylum in the United Kingdom soon after his arrival. After allowing the claim to mature for nearly three years, the Secretary of State refused it and on 5 July 2004 made a decision to remove the Appellant as an illegal entrant, nominating Yemen as the proposed removal destination. The Appellant appealed. His appeal was heard by an Adjudicator, Mr W P Scobbie, who dismissed it in a determination sent out on 7 December 2004. The Appellant applied for and was granted permission to appeal to the Immigration Appeal Tribunal. Following the commencement of the appeal provisions of the 2004 Act, that grant of permission operates as an order for reconsideration by this Tribunal, limited to the grounds upon which permission was given: see Rule 62(7) of the 2005 Procedure Rules. It is fair to say that Mr Brown, who appeared for the Appellant, had some difficulty in associating the submissions he wished to make with the grounds upon which the Appellant had obtained leave. In the circumstances, and particularly because of the terms of the grant of permission and the somewhat cryptic way in which the grounds were drafted, we did our best to interpret the latter in the widest way properly possible.
3. The Adjudicator made a number of findings and assertions of fact, none of which is the subject of any challenge now. So far as concerns the Appellant’s citizenship, he asserted that the Appellant is not a citizen of Saudi Arabia; he found on the basis of evidence before him that it was “most unlikely that the Appellant would ever be able to obtain citizenship of Yemen”. The Appellant said in one of his witness statements that he regarded himself as a citizen of Somalia but it was accepted before us that there was no reason to suppose that he is Somali or entitled to Somali citizenship, and the Adjudicator does not appear to have treated him as so entitled. The Adjudicator also found that the Appellant’s evidence as to his parentage and upbringing was accurate and credible. The Adjudicator rejected, however, the Appellant’s claim to have been arrested by the Saudi police following the death of his mother and only released following a payment by his aunt. The Adjudicator’s conclusions on the Appellant’s status are in paragraph 31 of his determination:
“I had to decide whether the appellant was a refugee and whether he had a well-founded fear of persecution. I decided that he had not. All that had happened to the appellant was that he left Saudi Arabia because he was worried that the police were looking for him. As indicated above, I had dismissed his evidence that he had been arrested by the police. The fact that the appellant left because he was frightened that the police would arrest him falls very short of amounting to persecution.”
4. The first ground of appeal pursued on the reconsideration before us was that the Adjudicator had failed to make a clear decision as to whether the Appellant was stateless, and to analyse the evidence before him of the consequence of statelessness. It is fair to say that the determination contains no clear finding that the Appellant is to be regarded as stateless. But it is important to consider the context of the claim of statelessness. Statelessness is of great importance in asylum law, because a person who has a nationality has to have his status as a refugee or not determined by reference to his nationality; but a person who is stateless has his status as a refugee determined by reference to his country of former habitual residence. In the present case, there can be no conceivable doubt that the Appellant’s country of former habitual residence is Saudi Arabia. The Adjudicator asserted that the Appellant is not a citizen of Saudi Arabia and it has not been suggested that he was wrong to do so. We think that, in reality, the Adjudicator did regard the Appellant as stateless, because he had ruled out or ignored all the countries of nationality that had been suggested. But whether or not that is so, there is no doubt that the Adjudicator evaluated the Appellant’s asylum claim by reference to the risk of his persecution as a non-national in Saudi Arabia.
5. In making that evaluation, he considered the Appellant’s past history and made his findings, which we have set out above. Given those findings, the only basis upon which it could be said that the Adjudicator erred in law in not finding that the Appellant was a refugee would be material before the Adjudicator which should have led him to the conclusion that the Appellant would be at risk of persecution at the time of the determination, despite his lack of experience of persecution (as the Adjudicator found) in the past. There was no such evidence before the Adjudicator.
6. From this it follows that, whether or not the Adjudicator erred in his treatment of the issue of statelessness, it can have made no difference to his decision. The substance of the claim based on statelessness is precisely the substance of the claim which the Adjudicator considered.
7. The second principal ground of appeal was that the Adjudicator failed to deal properly with the consequences of the Appellant’s return to Yemen, as proposed in the notice of decision. He wrote this:
“There was no evidence put before me that on arrival at Yemen he would be subject to any treatment which could be in breach of Article 2 or Article 3 of the 1950 Convention. Certainly, it might well be a possibility that Yemen might refuse to accept him and he might be sent back to the United Kingdom. However, that is a matter which is outwith my jurisdiction.”
8. The grounds took particular exception to that last sentence. It appears to us that it is right to say that, in an appeal raising asylum and human rights grounds, the Adjudicator was indeed obliged to consider whether the course of action proposed by the Respondent was one which would infringe the Appellant’s human rights. The practicability of return is no doubt something which the Adjudicator could not consider: but the effect on the Appellant of the proposed return if it could take place was something which he should have considered. The Adjudicator’s reference to Articles 2 and 3 no doubt amounts to some consideration of that issue, but we allowed and encouraged Mr Brown and Mr Craven to explore it before us.
9. Mr Craven asserted that, despite any confusion caused to the Adjudicator by other statements by other Presenting Officers, the removal directions were indeed for Yemen. No doubt in making that assertion he had in mind the provisions of Regulation 5(1) of the Immigration (Notices) Regulations 2003 (SI 2003/658) which provide that a notice of a decision to remove as an illegal entrant has to state the country or territory to which it is proposed to remove the person. The original notice, against which this Appellant appeals, gave Yemen as the proposed destination; it appears that any new destination would have to be given in writing and arguably would need to be part of a new notice of decision which would create a new right of appeal: see KF (Iran) [2005] UKIAT 00109 at paragraph 77. Thus there can be no doubt that removal to Yemen is the context of the present appeal. As is also clear from KF, the Appellant has no right of appeal on the ground that the country proposed for removal is one which in his case does not fall within the provisions of paragraph 8 of Schedule 2 to the 1971 Act. That is because his appeal is against the decision to remove him, not against the removal directions. On the other hand, however, he clearly does have a right of appeal on the ground that the projected removal would breach his human rights.
10. Mr Craven suggested in a number of his submissions that the truth of the matter was that the Appellant would be entitled to Yemeni citizenship. We entirely disregard those submissions: they are evidently contrary to the Adjudicator’s findings of fact in the determination which would have to be the basis of any lawful removal of the Appellant. The question then is what would be the consequence of the Appellant’s removal to Yemen, given that he is not and is unlikely ever to be a citizen of Yemen?
11. Although the Appellant has no right of appeal based on paragraph 8 of Schedule 2, nothing that we have heard suggests that the Secretary of State would be minded to do anything unlawful in the Appellant’s case. We must therefore regard the removal as one which, if it took place, would take place in accordance with the provisions of paragraph 8 of Schedule 2. Looking at that paragraph (the provisions of which are well known), we note that in the present case the Appellant is not a national of Yemen, he has not been given a travel document by Yemen, and he did not embark in Yemen. It follows that he could be removed to Yemen only on the basis that there is reason to suppose that he will be admitted there. Mr Craven told us that there would have to be negotiations with the Yemeni Embassy before any removal to Yemen could take place. That appears to us to be a proper interpretation of the limit on the Secretary of State’s powers under paragraph 8 of Schedule 2. In any event, it provides a suitable context for us to determine whether the Appellant can show that his removal to Yemen would infringe his human rights.
12. That context must therefore be that of a non-Yemeni national removed to Yemen under arrangements made with the Yemeni Embassy in the United Kingdom. Mr Brown put before us a number of materials which had also been before the Adjudicator which tend to show that nationals of other countries resident in Yemen are liable to deportation to those other countries. He readily accepted, however, that there is nothing to show that people resident in Yemen that have no nationality are liable to any similar treatment. It appears to us, having considered all the arguments put to us, that there is no basis for saying that a person in respect of whom the Secretary of State had made arrangements for admission to Yemen would be treated there contrary to his rights under Article 3 as a consequence of his removal to Yemen. There is no other basis upon which a claim based on this ground could properly succeed. Although we have dealt with it at greater length, that is precisely the conclusion reached by the Adjudicator in the passage from his determination which we cited.
13. It may well be the case, as Mr Brown suggested, that removal to Yemen will turn out to be impracticable. That is a matter which the Adjudicator also dealt with. We agree that practicability is not a matter to be considered in this appeal. If the Respondent finds that he cannot remove the Appellant, no doubt he will not do so: if he seeks to remove the Appellant to a different destination, he will need to cite that destination in a new notice of decision.
14. For the foregoing reasons, we find that there was no material error of law in the Adjudicator’s determination, which we accordingly affirm.
C M G OCKELTON
DEPUTY PRESIDENT
Date: 14 Nov 2005