Darji v Secretary State for Home Department

For statelessness claims, the burden lies on the claimant and the standard is reasonable likelihood, not balance of probability. A tribunal cannot reverse that burden because no citizenship document exists or because the claimant did not assert citizenship. Entry on a citizenship register may ordinarily make statelessness impossible; non-entry does not itself prove it. General evidence of discriminatory nationality laws and mass expulsions does not establish an individual’s statelessness without evidence of entitlement, deprivation, forfeiture or exclusion. An appellate tribunal overturning a favourable finding on persecution must give proper reasons. A bare conclusion that the finding was unsustainable is inadequate where the accepted evidence makes the contrary conclusion unavailable. The appellate court may then restore the original decision rather than remit.

These conjoined appeals arose from decisions of the Immigration Appeal Tribunal concerning Nepalese asylum-seekers habitually resident in Bhutan. In Darji, the IAT found statelessness, accepted that return would be impracticable, and allowed the appeal; the Secretary of State challenged that conclusion. In Gurung, the adjudicator accepted a well-founded fear of ethnic persecution and findings under Articles 3 and 8 of the ECHR. The IAT rejected statelessness and set aside the merits decision with brief reasoning. The Court of Appeal had to decide whether the evidence established individual statelessness and whether the IAT had lawfully displaced the adjudicator’s findings.

Permission to appeal was granted in both cases. The court then determined the substantive appeals.

1. Statelessness. The claimant bore the burden of establishing statelessness, to the standard of reasonable likelihood. The IAT had visibly reversed that burden by treating its lack of satisfaction that Darji was Bhutanese, the absence of documentary proof of citizenship, and Darji’s failure to claim citizenship as evidence establishing the contrary. Those matters did not prove statelessness.
2. The court examined the Citizenship Law of 1958 and the 1985 law. The evidence left uncertainty about the precise effect of birth and registration. The citizenship register was nevertheless significant: entry would ordinarily make proof of statelessness impossible, while non-entry would not necessarily establish it and required further information. General evidence concerning the precarious position of Nepalese in Bhutan and mass expulsions did not establish Darji’s individual status. There was no evidence that his parents were ineligible, or that he had been deprived, forfeited or expelled from Bhutan. The likelihood on the evidence was that he was a Bhutanese citizen.
3. The IAT also erred in treating departure from Bhutan as sufficient to establish loss of citizenship, since the relevant provisions applied only where the citizenship-register condition was satisfied. The construction of paragraph 1A(2) of the 1951 Refugee Convention identified in Revenko v Home Secretary [2000] Imm AR 610 meant that, absent statelessness, the claim still required a well-founded fear of persecution in the country of habitual residence. Darji’s alleged persecution and human-rights risks were founded solely on statelessness and therefore fell with that finding. The court made an obiter observation that systematic statelessness, homelessness and unemployment might engage Article 3 of the ECHR, rather than only Article 8.
4. In Gurung’s case, the general evidence did not establish statelessness. The IAT had, however, failed to give proper reasons for overturning the adjudicator’s accepted finding of a well-founded fear of ethnic persecution. Its conclusion that the adjudicator’s decision was unsustainable was not sufficient, and the contrary conclusion was not open on the evidence. The court declined to remit and restored the adjudicator’s decision, giving Gurung the benefit of finality.

The Secretary of State’s appeal in Darji succeeded. Gurung’s appeal succeeded and the adjudicator’s decision was restored.

• Court of Appeal (Civil Division) granted permission to appeal, allowed the Secretary of State’s appeal in Darji, and allowed Gurung’s appeal.
• Immigration Appeal Tribunal found Darji stateless and allowed his appeal, directing that he be granted leave to enter and remain for two years. In Gurung, it rejected the statelessness argument and set aside the adjudicator’s merits decision.
• Adjudicators disbelieved Darji’s account and dismissed his claims. In Gurung’s case, the adjudicator accepted a well-founded fear of ethnic persecution and found breaches of Articles 3 and 8 of the ECHR.