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

In an asylum claim founded on an alleged denial of nationality, the governing question remains whether there is a real risk of persecution on return. Descriptions of nationality as de jure or de facto are only convenient shorthand and must not alter that inquiry.

Where denial of re-entry is alleged to be part of the persecution, the tribunal must address it. If the decisive issue is whether the claimant can obtain documents enabling return, the claimant will normally have to make a bona fide application and take all reasonably practicable steps to obtain them. The issue of inability to return is proved in the ordinary way, rather than by the real-risk standard. A refusal of re-entry for a Convention reason may amount to persecution, but loss of nationality does not invariably do so; its practical consequences are material.

The appellant was an Ethiopian national of Eritrean origin. She appealed against the refusal of asylum and against the third determination of the Asylum and Immigration Tribunal concerning her case.

An earlier country-guidance determination had dismissed her appeal. The Court of Appeal then remitted the matter for consideration solely on the proposed removal to Ethiopia. Before the Tribunal, it became common ground that she was legally Ethiopian. She also accepted that, if Ethiopia allowed her to return, she would face no persecution there.

The Tribunal found that she would be treated as an Ethiopian national if returned. It treated its further finding that she would probably obtain emergency travel documentation as strictly obiter. The central issue on this appeal was whether the Tribunal's errors in addressing return and the standard of proof required a remittal.

1. Appeal dismissed unanimously. Elias LJ held that the Tribunal had erred by treating the question of Ethiopia's attitude to the appellant's return as immaterial. Where refusal of re-entry is alleged to form part of the persecution, the tribunal must address that issue in deciding refugee status. The Tribunal had also expressed the wrong standard when considering risk on return.

2. The distinction between de jure and de facto nationality was not itself an error of law. It was shorthand for legal entitlement and actual treatment. However, it was neither necessary nor desirable if it obscured the ordinary asylum question: whether there is a well-founded fear, namely a real risk, of persecution on return.

3. The decisive issue was capable of direct verification. Where the essential question is whether a claimant can obtain a passport or travel document enabling return, the tribunal should normally require a bona fide application and all reasonably practicable steps to obtain it. An exception may arise where disclosure of identity would create a real risk to the claimant or others. The inability to obtain documents is to be established on the balance of probabilities, not by showing a real risk.

4. The appellant had not made a bona fide attempt: she told the Ethiopian embassy that she was Eritrean. On the evidence, the Tribunal could not find that she had taken the required reasonable steps. A remittal would therefore be futile.

5. Elias LJ and Stanley Burnton LJ further explained that deprivation of nationality is not invariably persecution. Its legal and practical consequences in the relevant foreign state are factual matters. Nevertheless, an arbitrary refusal of re-entry for a Convention reason may amount to persecution because it denies a fundamental incident of nationality. A later bona fide refusal of documentation could found a fresh asylum claim, depending on its reason and consequences.

• Court of Appeal (Civil Division): dismissed the appellant's appeal in MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289.

• Asylum and Immigration Tribunal: on the third consideration of the claim, dismissed the asylum appeal after assessing the proposed return to Ethiopia.

• Earlier Court of Appeal and Tribunal proceedings: the earlier country-guidance determination in MA & Others [2004] UKIAT 00324 was followed by a remittal requiring the Tribunal to consider the asylum and human-rights appeals only on the basis of proposed removal to Ethiopia.