FA (Eritrea, nationality ) Eritrea CG

Factual and Procedural Background

The Appellant, claiming Ethiopian nationality, appealed against an Adjudicator's determination dated 11 December 2003, which dismissed her appeal against a decision refusing asylum but granting limited leave to remain until 20 June 2004. The appeal arose under section 69(3) of the 1999 Act and the court’s jurisdiction was confined to material errors of law due to the date of the Adjudicator’s determination.

The Appellant was born in Asmara in 1986 when it was part of Ethiopia, moved to live in Ethiopia at about 1.5 years old, and her father was killed when she was one year old. Her mother went missing, believed deported to Eritrea, and her aunt arranged for her to leave Ethiopia in May 2002. The refusal letter found her to be an Eritrean national able to return safely to Eritrea, which she disputed based on the 1992 Eritrean Nationality Proclamation.

The Adjudicator accepted that the Proclamation limited nationality by birth to those whose parents were of Eritrean origin resident in Eritrea in 1933, but relied on a Home Office fact-finding report clarifying Eritrean nationality law and practice. The Adjudicator concluded the Appellant was entitled to Eritrean nationality as a descendant of persons resident in Eritrea prior to 1933, leading to dismissal of the appeal since the Appellant did not claim a well-founded fear of persecution in Eritrea. The Adjudicator did not address the Appellant’s claims of fear if returned to Ethiopia.

The Appellant’s counsel requested an adjournment pending a related Tribunal determination, which was refused as the pending determination did not address the relevant issues. The court focused on whether the Adjudicator erred in law in concluding Eritrean nationality and noted the Appellant did not claim risk in Eritrea.

Legal Issues Presented

1. Whether the Adjudicator erred in law in concluding that the Appellant was a national of Eritrea under the 1992 Eritrean Nationality Proclamation and related evidence.
2. Whether reliance on the Home Office report and statements by Eritrean officials constituted an error of law.
3. Whether the Adjudicator failed to consider substantial obstacles to the Appellant effectively obtaining Eritrean nationality.
4. The proper legal approach to nationality determination in asylum claims, including the burden of proof and the relevance of a claimant’s efforts to obtain nationality.

Arguments of the Parties

Appellant's Arguments

• The Adjudicator’s interpretation of the 1992 Eritrean Nationality Proclamation was incorrect; the Proclamation excluded both parents from Eritrean nationality as they were born after 1933.
• The Home Office report’s reliance on Eritrean officials’ statements was unreliable due to demonstrated falsehoods and the regime’s record of human rights abuses, warranting caution.
• The Adjudicator failed to consider significant practical obstacles to the Appellant’s effective acquisition of Eritrean nationality, treating a future grant of nationality as sufficient for Refugee Convention purposes.
• The three witnesses test required by Eritrean authorities was arbitrary and would be impossible for the Appellant to satisfy given her family circumstances and young age when leaving Eritrea.
• The ‘putative nationality’ approach should only apply where nationality is accessible and can be obtained by minimal procedural steps, which was not the case here.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the 1992 Eritrean Nationality Proclamation and found that while a literal reading appeared restrictive, the Adjudicator’s reliance on the Home Office report was appropriate to understand how Eritrean authorities interpret and apply the law in practice. This approach aligns with international law principles, including the 1930 Hague Convention, which defers nationality determinations to the foreign state’s law and practice.

The court accepted the Adjudicator’s inclusive interpretation of Eritrean nationality, supported by evidence that Eritrean authorities consider descent from persons resident prior to 1933 sufficient for nationality, reflecting a policy of inclusiveness post-independence.

Regarding the reliability of the Home Office report and statements from Eritrean officials, the court found no evidence that the particular statements relied upon were false or unreliable in relation to nationality law, despite acknowledged human rights concerns about the Eritrean regime.

The court rejected the Appellant’s ‘present nationality’ approach, reaffirming established law that claimants must prove nationality or statelessness and exercise due diligence, including applying for nationality where appropriate. The ‘three witnesses’ test, while potentially challenging, was not shown to be arbitrary or lacking objectivity, and the Appellant’s connection to the Eritrean diaspora in the UK suggested possible access to such witnesses.

The court also rejected the submission that nationality must be accessible without any obstacles, noting that a test requiring obstacle-free access would allow claimants to manipulate nationality status, undermining refugee protection principles. The court’s approach aligns with the Qualification Directive’s requirement to consider whether a claimant could reasonably avail themselves of another country’s protection.

Finally, the court dismissed the appeal, concluding no material error of law was made by the Adjudicator in finding Eritrean nationality and dismissing the appeal accordingly.

Holding and Implications

The appeal is DISMISSED.

The court upheld the Adjudicator’s determination that the Appellant is a national of Eritrea for Refugee Convention purposes, thereby negating the claim for asylum based on fear of persecution in Eritrea. The decision means the Appellant’s appeal fails as she did not claim risk in Eritrea and was found not to be unlawfully refused asylum. No new precedent was established beyond confirming established principles on nationality determination and the burden of proof in asylum claims.