Lucas v Secretary of State for the Home Department

In an asylum appeal involving disputed nationality, the claimant bears the burden of establishing the relevant nationality to the lower standard of a serious possibility. Where the tribunal finds that the claimant has a different nationality, it must assess the risk on return to that country. A tribunal may, in an appropriate case, also consider whether the claimant would face persecution if the claimed nationality were established, but no general guidance is required where the case is unarguable and the tribunal has adequately considered the consequences of return.

The appellant appealed against an Immigration Appeal Tribunal determination dismissing his asylum appeal. He claimed to be Burundian and feared persecution in Burundi. The Adjudicator found that he had not established Burundian nationality and instead found that he was Tanzanian.

The Secretary of State intended to return him to Tanzania. The Adjudicator considered the risk of persecution there, including the possible consequences of his having claimed Burundian nationality when seeking asylum elsewhere, and found no well-founded fear. The central issue was whether the Adjudicator was nevertheless required to assess the appellant’s claim on the basis of his asserted Burundian nationality.

1. Appeal dismissed. The appellant’s case had no realistic prospect of success because the Adjudicator found that he was Tanzanian, considered what would happen on return to Tanzania, and found no appropriate degree of likelihood that he would be returned to Burundi.
2. The claimant bears the burden of establishing the nationality relevant to the asylum claim. The applicable standard is whether there is a serious possibility that the claimant has that nationality. Those principles were accepted and were not disputed.
3. Where an adjudicator finds that the claimant is not of the nationality asserted but is of another nationality, the adjudicator must consider the risk arising on return to the established country of nationality. Here, the Adjudicator considered both the appellant’s position as a Tanzanian and the possible consequences of his having sought asylum elsewhere while claiming to be Burundian.
4. The court did not affirm or reject every proposition in Agartha Smith v Secretary of State for the Home Department. It accepted that there may be cases in which an adjudicator should consider whether the claimant would face persecution on the basis of the claimed nationality, even though that nationality had not been proved. The present case did not require further guidance because the Adjudicator had sufficiently addressed the relevant risks.
5. Lady Justice Arden agreed with Lord Justice Schiemann. Mr Justice Aikens agreed with both judgments. The appeal was dismissed, with costs subject to legal aid assessment.

• Court of Appeal (Civil Division) — Appeal dismissed.
• Immigration Appeal Tribunal — Determination dismissing the appellant’s asylum appeal.
• Adjudicator — Found that the appellant had not established Burundian nationality, found him to be Tanzanian, and rejected the claim that return would breach the United Kingdom’s Convention obligations.