MW v The Secretary of State for the Home Department

Qualification Directive, article 4 does not require the Secretary of State to share an applicant’s duty to substantiate nationality. Although the Member State must cooperate in determining relevant facts, an applicant denying nationality of a country able to provide protection must take reasonable steps to establish that denial.

Documentation at the applicant’s disposal includes material not presently held but capable of being obtained. Article 4(3)(e) is consistent with requiring an applicant to pursue reasonably available evidence of nationality or citizenship. A tribunal may treat incomplete or half-hearted engagement with an embassy, together with other credibility evidence, as material to nationality.

The appellant claimed Eritrean nationality and appealed against the refusal of asylum and a removal decision. The First-tier Tribunal, Judge Kimnell, dismissed the appeal on 30 July 2015. An earlier First-tier Tribunal decision by Judge M R Oliver had been set aside for inadequate reasons.

The appellant challenged findings that she was Ethiopian rather than Eritrean, that she had not taken reasonable steps to establish non-Ethiopian nationality, and that a Sprakab linguistic report could be relied upon. She also contended that article 4 of the Qualification Directive imposed a shared duty on the Secretary of State to investigate nationality.

The central issues were the proper allocation of the duty to substantiate nationality and whether the First-tier Tribunal had materially erred in its credibility and evidential assessment.

1. Appeal dismissed. The First-tier Tribunal made no material error of law and its dismissal of the asylum appeal stood.

2. Article 4(1) of the Qualification Directive requires cooperation between the Member State and the applicant in determining relevant facts. It does not, however, transfer or share the applicant’s duty to substantiate nationality. Article 4(2) requires an applicant to provide statements and documentation at his or her disposal. That expression includes documents which the applicant does not presently possess but can obtain.

3. Article 4(3)(e) supports the requirement that an applicant who denies nationality of a country in which protection could be obtained must take reasonable steps to establish that denial. The Secretary of State could, in an appropriate case and with the applicant’s agreement, make embassy enquiries. She was under no duty to do so. The Tribunal followed MA (Ethiopia) [2009] EWCA Civ 289 in holding that the applicant must take all reasonably practicable steps, subject to such matters as risk created by disclosure.

4. The First-tier Tribunal was entitled to find that the appellant’s embassy enquiries were insufficient. Her passport application was refused because she had not supplied supporting documents. There was no evidence that she had sought available documents from relatives, established beforehand what the embassy required, or challenged the refusal. Its conclusion that her efforts were half-hearted was open on the evidence, particularly alongside findings that her account of contact with relatives was evasive and untruthful.

5. The nationality finding did not rest on one matter alone. The First-tier Tribunal could cumulatively rely on the vagueness of the escape account, the lack of candour concerning the journey, inadequate knowledge of Eritrea, and linguistic evidence.

6. A Sprakab report must be examined critically and must not be treated as determinative merely because it expresses a confident conclusion. The First-tier Tribunal had done so. It considered the report alongside the asylum interview and oral evidence, addressed the asserted procedural bias and qualifications of the analysts, and was entitled to give the report significant weight.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: Judge Kimnell dismissed the appellant’s appeal on 30 July 2015.
• First-tier Tribunal / Upper Tribunal: an earlier decision of Judge M R Oliver was set aside by Deputy Upper Tribunal Judge Lewis in December 2014 for inadequate reasons.