EB (Ethiopia) v Secretary of State for the Home Department

Arbitrary executive deprivation of nationality on a Convention ground can itself constitute persecution. Removing identity documents to prevent proof of nationality may produce the same effect, and further physical ill-treatment is not required. The decision-maker must still assess the claimant’s present hypothetical position on return, including any continuing loss of citizenship rights and contrary evidence. Statelessness, voluntary departure or refusal of re-entry, considered alone, does not automatically establish refugee status.

The Asylum and Immigration Tribunal dismissed EB’s appeal against refusal of asylum and human rights protection. It accepted that she had lost her Ethiopian nationality and was stateless, but rejected her account of detention and persecution and held that loss of nationality alone was insufficient.

EB appealed, arguing that the removal of her identity documents and resulting effective deprivation of nationality were discriminatory persecution based on her Eritrean ancestry. The central issue was whether those matters established a present well-founded fear of persecution on a return to Ethiopia.

By a majority, the appeal was allowed and EB was held entitled to refugee status. Longmore and Jacob LJJ concluded that no remittal was necessary. Pill LJ agreed that the Tribunal had applied a flawed legal approach but would have remitted the case for further factual consideration.

1. Present assessment. Article 1A(2) of the Refugee Convention requires a decision-maker to assess the claimant’s position on the hypothetical return contemplated at the time of determination. Statelessness or past persecution alone is not automatically sufficient. The causes and continuing consequences of the loss of nationality remain relevant. This approach was consistent with Adan v Secretary of State for the Home Department [1999] AC 293 and the reasoning concerning statelessness in Revenko v Secretary of State for the Home Department [2001] QB 601.
2. Effective deprivation. Arbitrary executive removal of identity documents, undertaken to make it difficult for a person to prove nationality and resulting in the loss of citizenship rights, can itself amount to persecution for a Convention reason. The right to leave and re-enter one’s country is a basic citizenship right. Further physical ill-treatment is not required. The majority rejected the approach in MA (Ethiopia) and another v SSHD; SSHD v RG (Ethiopia-Eritrea-Mixed ethnicity-dual nationality) [2004] UKIAT 00324, and distinguished Lazarevic v Secretary of State for the Home Department [1997] 1 WLR 1107 because the relevant conduct there lacked a Convention reason. The consequences of denationalisation described in Trop v Dulles, Secretary of State (1957) 356 US 86 supported the analysis by analogy.
3. Application. The Tribunal had focused on whether EB suffered physical ill-treatment and had failed to consider whether removal of her documents and the resulting loss of ordinary civil rights constituted persecution. Longmore LJ held that the primary facts were sufficient and that the continuing deprivation had not been rebutted. Jacob LJ likewise considered that the matter had been considered sufficiently and should be finally determined.

Pill LJ would have remitted the case. In his view, whether the removal of documents constituted persecution remained a fact-sensitive issue requiring reassessment of credibility and the consequences of effective loss of citizenship.

1. Asylum and Immigration Tribunal — Dismissed EB’s appeal against refusal of asylum and human rights protection in a decision promulgated on 9 October 2006.
2. Court of Appeal (Civil Division) — Allowed the appeal. By a majority, the Court held that EB was entitled to refugee status. Pill LJ would have allowed the appeal and remitted the case for reconsideration.