Secretary of State for the Home Department v SP (North Korea) & Ors

For the purposes of refugee status, a person’s formal nationality does not provide protection if the evidence establishes that the state will not, in practice, acknowledge that nationality or issue the documents needed to enjoy it. A tribunal may make that assessment from reliable country and expert evidence.

An asylum claimant must ordinarily act bona fide and take all reasonably practicable steps to obtain the protection of another country of nationality. That requirement is met where the evidence shows that further steps would encounter a practical impasse. The tribunal may then determine the claim on the evidence available at the hearing.

The respondents were North Korean nationals who had lived in China for more than ten years before claiming asylum in the United Kingdom. They had South Korean nationality at birth under South Korean constitutional and nationality law, but feared persecution if returned to North Korea.

An immigration judge dismissed their appeals. The Upper Tribunal allowed them in the country-guidance decision [2011] UKUT 92 (IAC), finding that South Korea would in practice not acknowledge their retained nationality or provide nationality documents because of their lengthy absence from the Korean peninsula.

The Secretary of State appealed on grounds that this finding was irrational and that it was premature to determine refugee status before South Korea had formally refused nationality.

1. Appeals dismissed. Maurice Kay LJ, with whom McFarlane LJ and Davis LJ agreed, held that the Upper Tribunal had made no error of law in allowing the respondents’ asylum appeals.
2. The Tribunal’s essential finding was that a North Korean national absent from the Korean peninsula for more than ten years would, in practice, be unable to obtain the indicia of South Korean nationality. That finding was supported by uncontradicted expert and factual evidence. The Tribunal’s suggestion that the South Korean authorities applied a presumption of acquisition of another nationality was only a tentative explanation. It was not a necessary finding or a legal term of art.
3. The Act on the Protection and Settlement Support of Residents Escaping from North Korea 1997 concerned protection and settlement support, rather than the definition of nationality. The evidence instead justified the conclusion that the authorities treated prolonged absence in a manner equivalent to loss of South Korean nationality through acquisition of another nationality. The Tribunal was therefore entitled to find that the respondents could not presently avail themselves of South Korean protection for the purposes of article 1A(2) of the Geneva Convention relating to the Status of Refugees.
4. MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289 normally requires an applicant to act bona fide and take all reasonably practicable steps to obtain documents enabling return. The respondents had done so. The Embassy had shown no readiness to acknowledge their nationality, and in one case would not consider the position until the asylum claim ended. On the evidence, they had reached the practical impasse described in MA (Ethiopia), so the Tribunal could determine their claims on the circumstances at the hearing.
5. The court observed that a later acknowledgement of South Korean nationality might require refugee status to be revisited under the cessation provisions of the Convention. That possibility did not affect the respondents’ present entitlement.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeals and upheld the Upper Tribunal’s decision.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the respondents’ appeals in the country-guidance decision [2011] UKUT 92 (IAC).
• Immigration Judge: dismissed the respondents’ appeals from the refusal of their asylum claims.