Gherson success in dual national refugee case

In a determination demonstrating the Immigration Judge’s inspired interpretation of international refugee law a client of Gherson has succeeded in his appeal against the Secretary of State’s refusal to vary his leave to remain to that of a refugee.   

The facts in the case are unusual.  The client has two nationalities.  One of the two countries of which he is a national sought his extradition from the United Kingdom, where he has leave to remain in a  non-asylum related capacity.  Following the client’s arrest in connection with the extradition application –  he  applied to vary his leave under the immigration rules early in 2007.  The Secretary of State refused the application in October of 2007.  

The Secretary of State’s decision was not based upon any evaluation of the merits of the client’s asylum application.  Instead the Secretary of State simply asserted that the client could not be a refugee since he could avail himself of the protection of the other country of which he is a national.  

The client then exercised his right to appeal against this decision under section 83 of the Nationality Immigration and Asylum Act 2002.  This provides:

83  Appeal: asylum claim

(1) This section applies where a person has made an asylum claim and—

(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2) The person may appeal to the Tribunal against the rejection of his asylum claim.

The client – or “the Appellant” - was entitled to appeal under this provision because the Secretary of State had already granted him leave to remain in the UK for a period longer than that required by section 83 (b).  

At the hearing of the client’s appeal the Immigration Judge noted that Article 1 A (2) paragraph (2) of the 1951 Convention relating to the status of refugees provides:

“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.”

Not surprisingly the Secretary of State’s representative relied upon the following paragraphs of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention

106. This clause, which is largely self-explanatory, is intended to exclude from refugee status all persons with dual or multiple nationality who can avail themselves of the protection of at least one of the countries of which they are nationals. Wherever available, national protection takes precedence over international protection.

107. In examining the case of an applicant with dual or multiple nationality, it is necessary, however, to distinguish between the possession of a nationality in the legal sense and the availability of protection by the country concerned. There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals. In such circumstances, the possession of the second nationality would not be inconsistent with refugee status. As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective. If there is no explicit refusal of protection, absence of a reply within reasonable time may be considered a refusal.

Counsel for the Secretary of State also pointed out that the Appellant had not made any application for protection from the other country of which he was a national.  By the operation of the last two sentences of paragraph 107 therefore - the Appellant could not claim the protection of the UK unless and until he had made such an application.  

He also relied upon rule 334 of HC 395, stating that sub rule (iii) made it impossible for someone to be a refugee unless as a result of the refusal of his or her asylum application he or she would have to go to a country where he or she had a well founded fear of persecution.  The Appellant would not be required to leave the UK and go to the country where he claimed to fear persecution unless and until he both lost his extradition case and the Secretary of State then made an extradition order.

Counsel for the Appellant relied upon the Australian case of Jong Kim Koe v Minister for Immigration and Multicultural Affairs [1997] 306 FCA (Full Court (referred to in Symes & Jorro Asylum Law and Practice 2003 Edition paragraph 6.4).  That case (echoing the middle part of paragraph 107 of the UNHCR Handbook) made the common sense point that for the existence of a second country of nationality to disqualify somebody from refugee status in respect of the country where persecution was feared – that nationality had to be “effective” (in the sense that the country concerned provided protection to its nationals) and not merely “formal”.  

So the case turned on the question of whether the Appellant could or could not avail himself of the country of his other nationality.  Counsel for the Secretary of State maintained that the Appellant had not satisfied the requirement (suggested by paragraph 107 of the UNHCR Handbook) of making a request for protection from that country and having it refused.   When asked how the Appellant could reasonably have been expected to make such an approach the representative suggested that the Appellant could simply have gone to the relevant embassy in London and asked for that nation’s “accommodation and sanctuary”.  

So the judge asked Counsel for the Appellant if he would like an adjournment to enable the Appellant to make such an approach to the embassy.  After a short break in the proceedings the judge was informed by counsel that he had been advised that a person would only be admitted to the embassy if he or she was in possession of an appropriate documents identifying him or her as a national of that country.  This was in fact impossible since the Appellant was on bail and the Secretary of State was in possession of Appellant’s passport in relation to the relevant country.  

Counsel also submitted that the suggestion of an approach to a foreign embassy by his client was absurd since it would create an international incident.   
 
Allowing the Appellant’s appeal the Immigration Judge found that:

•    The principle in paragraph 107 of the UNHCR Handbook relied on by the Secretary of State was that “as a rule” there should have been a request for protection and a refusal of it before it can be established that a given nationality is ineffective.  So it wasn’t an absolute requirement.  
•    In the instant case because the Appellant was on bail pending the conclusion of his extradition hearing he could not make any approach to the country of his other nationality or even to its embassy, due both to his documents being held by the Secretary of State and to the conditions of his bail.   

•    The principle articulated at paragraph 6.4 of Symes & Jorro’s Asylum Law and Practice was apposite.  There it was stated that:

•    The Secretary of State’s position on rule 334 (i.e. that the Appellant was not going to be required to go to the country where he feared persecution as a consequence of the refusal of his asylum application) was tautological.  The Appellant’s removal would be as a consequence of the UK’s cooperation with the country’s extradition request.  

So the appeal was allowed and the Secretary of State was required to determine substantively the Appellant’s asylum application. Sealing up her determination the Immigration Judge noted that it effectively closed the dual nationality issue in respect of the Appellant’s refugee status.  If the Secretary of State tried to rely on it when it came to her determination of the Appellant’s asylum claim the Appellant would be entitled to rely on Devaseelan v Secretary of State [2003] Imm AR 1 – in other words the Secretary of State’s point would be blocked.  

The Secretary of State applied to the Asylum and Immigration Tribunal for reconsideration of the Immigration Judge’s determination.  The grounds in support of the application were basically the same as the points argued before the Judge – dual nationality and there being no obligation on the Secretary of State to determine the Appellant’s asylum application unless and until he was facing extradition. The grounds alleged that the Immigration Judge had “required” the Secretary of State to determine the application prematurely.

The application was refused by a Senior Immigration Judge who said that the Immigration Judge’s determination contained no material error of law.  She had not required the Secretary of State to determine the asylum application but had instead she had stated that the Secretary of State had been wrong to refuse to determine the application while the extradition case was not yet resolved on the basis of the Appellant’s dual nationality.  This was because the Appellant was unable to approach the other country of which he was a national as a result of his being on bail and of the conditions of his bail.
 
Furthermore the Secretary of State’s grounds had wrongly referred to the Appellant’s not being a refugee “at present” and that he would only become a refugee if future events (the other country of his nationality refusing him protection and the extradition proceedings going against him).  A person does not “become” a refugee – he or she either is or is not a refugee.  In this case the Secretary of State had stated that the Appellant was not a refugee and that was why the Appellant had been entitled to appeal – on the question of his status, under section 83 of the  Nationality Immigration and Asylum Act 2002.  

Any asylum case requires meticulous care both in its preparation and the manner in which it is presented.  This case raised a particularly complex issue of law regarding when dual nationality cannot be relied on to defeat an asylum application.  It shows - apparently for the first time - that the existence of a second nationality is by no means fatal to an asylum application.