Upper Tribunal finds that there is no shared duty of cooperation on a Member State to substantiate nationality

The Upper Tribunal has recently given its determination in the case of MW (Nationality; Art 4 QD; duty to substantiate) Eritrea [2016] UKUT 00453 (IAC). In its determination the Upper Tribunal analyses on whom the duty lies to substantiate nationality, in relation to a case of disputed nationality.

Background

The appellant, MW, claimed to be an Eritrean national, at risk of persecution in Eritrea on the basis of her religion as a Pentecostal Christian, and her claimed arrest and detention in November 2010. Her application for asylum in the UK was refused by the SSHD, and a decision was made to remove her on 12 May 2014. Her appeal against this decision was dismissed by the First-tier Tribunal on 30 July 2015.

The appellant claimed to be Eritrean, while the SSHD found that she was Ethiopian. The FtT judge found that the appellant had not taken all reasonable steps to obtain evidence from the Ethiopian Embassy in Croydon that she was not Ethiopian.

The appellant argued that this finding was erroneous, as the duty to establish nationality was shared between the appellant and respondent with regard to Article 4(1) of the Qualification Directive (the corresponding provision to which is contained in paragraph 339I of the Immigration Rules), and the CJEU decision of MM v Minister for Justice, Equality and Law Reform, Ireland, and another (Case C-277/11)

Findings

Article 4(1) of the Qualification Directive (QD) provides that:

“Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.”

The UT found that the cooperative duty of the Member State must be read subject to the prior duty of the applicant to submit ‘as soon as possible all elements needed to substantiate the application for international protection’. These elements included “all documentation at the applicant’s disposal regarding…identity, nationality(ies)” [article 4(2) QD]. This must include documentation not in the applicant’s present possession but which is within the power of the applicant to obtain.

Furthermore, the assessment of an application for international protection included “whether applicant could reasonably be expected to avail himself of the protection of another country where he could obtain citizenship” [Article 4(3)e) QD], the terms of which were consistent with the expectation that an applicant takes reasonable steps to establish that he is not such a national.

It was clear from the Court of Appeal decision in MA (Ethiopia) [2009] EWCA Civ 289 [para. 50-54] that it did not view the duty resting on the applicant to take reasonable steps as being in any way shared. There was no reason to depart from this finding.

Although the respondent could have made inquiries of the Ethiopian embassy herself, she had no duty to do so. The UT found that on the facts, it was open for the FtT judge to conclude the appellant had not taken all reasonable steps to establish she was not Ethiopian as the efforts she had made to establish Ethiopian nationality were ‘half-hearted’.

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