Ivanov v Secretary of State for the Home Department (Georgia) [1996] UKIAT 12583 (29 October 1996) [1996] UKIAT 12583

UKIAT
Ivanov v Secretary of State for the Home Department (Georgia) [1996] UKIAT 12583 (29 October 1996)
[1996] UKIAT 12583 · 1996-10-29
[1]Would such a person be entitled to be issued with a full Georgian passport?[2]What evidence would he have to supply to obtain it?[3]How long would it take to be issued?[4]If such a passport could not be issued would he be required to apply for Georgian citizenship in order to obtain one?[5]In those circumstances would such a person, who had been born in Georgia and had lived there all his life be given citizenship automatically? I am sorry to trouble you with these questions but I should be grateful for an early reply." The reply from the Georgian Ministry reads:
"As a reply to your FAX 0170-603-5325 I have the honour to inform You of the following: According to the paragraph "
A" of the article 3 of the "Law about the citizenship of Georgia (March 29.1993) the person who had been living in Georgia for not less than 5 years and lives in the country for the day of entrance into force of this Law (March 27, 1993) and does not declare in written form about rejection of citizenship of Georgia during 6 months is recognised as a citizen of Georgia. So, the persons who do not answer the requirements of the paragraph "A" of the article 3, live outside the territory of Georgia and own the ex-USSR passport issued in the Republic of Georgia are not considered as citizens of Georgia. According to the request of these persons the Diplomatic Representations and Consulates can issue the certificate proving the above-mentioned for producing to the authorities of other countries. If a person living outside Georgia wants to obtain Georgian passport he must apply to the Georgian Diplomatic Representatives or Consulates with the request to restore Georgian citizenship. The request for restoration of citizenship must be examined during 1 year." The legal framework Article 1A(2) of the Refugee Convention defines a refugee:
"A. For the purposes of the present Convention, the term "refugee" shall apply to any person who: 2) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group of political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."
To establish a well-founded fear the applicant must show a subjective and objective fear although it may be difficult to refuse a claim if an objective fear is established. The criterion in respect of all aspects is the "serious possibility" (Sivakumaran v. Secretary of State [1988] Imm AR 147 ; Kaja [1995] Imm AR 1 ). An applicant for asylum will make the claim in respect of a particular country or countries. If that claim is not made out in respect of that country, in practice it may not then be necessary to make any finding as to nationality (see e.g. Prince (13751). On the other hand it will normally be essential to decide the issue of nationality in order to focus on the country relevant to the claim - and indeed the claim could not succeed without such a decision. Where nationality is relevant it is for the applicant to establish his nationality or to establish that he is stateless. This is a question of evidence and it is feasible that the applicant will not establish statelessness even though nationality remains uncertain - as where he is seeking to conceal it (see Prince). Nationality becomes irrelevant only if no serious possibility is shown in the country in respect of which the claim is made and inability to return is not an issue. So in this case where the claim is made in relation to Georgia if the sole basis of the claim was a well-founded fear of returning and that were held not to be made out, the application would fail. However, as we say, it could only succeed on that ground if Georgia was the country relevant to the claim i.e. the country of nationality or if appropriate habitual residence. Further, the claim based on inability to return may well depend on whether the appellant is a citizen of Georgia. We turn first therefore to the issue of nationality. The nationality of the appellant and its relevance The only evidence in addition to that already considered by the Tribunal in holding the appellant to be stateless is that of the correspondence with the Georgian government that we have set out. On its face it is not entirely consistent with the Georgian nationality law which was before us on the earlier occasion and remains before us. Article 5.1 reads:
"Pursuant to Art.3(a) of the new nationality law, all persons who have been permanently resident in Georgia for a period of at least five years and who were residing in Georgia on the day of entry into force of the nationality law, and who receive within a period of four months the papers confirming their nationality are considered as Georgian citizens."
The effect of not receiving nationality papers within the required period remains uncertain. Further, even if the appellant did formerly qualify for Georgian citizenship the final paragraph of the letter of 29 May 1996 seems to infer that a person such as the appellant would have to request a "restoration" of citizenship. We see no reason to doubt the appellant's evidence as to his citizenship application. In our view, there therefore remains a serious possibility that at the date of hearing the appellant is not a Georgian citizen. No further argument has been advanced as to any Russian citizenship and we declare that on the evidence before us that Mr. Ivanov is stateless. It is common ground, however, that Georgia is the appellant's state of habitual residence and therefore any claim based on unwillingness to return depends on precisely the same elements as it would if he were a Georgian national. The finding of statelessness goes only to the issue of ability to return. The claim based on unwillingness to return The basis is fear of being persecuted (i) by armed bands uncontrolled or condoned by the government of (ii) because of his Russian ethnic origin. (i) The fear of armed bands The reasons given why the appellant left Georgia go only to this ground - the fear of the armed bands because of what had occurred. The appellant's story is in many respects bizarre if viewed from the safety of the Strand. The one objective fact - his arrest on 15 December 1994 - is difficult to fit with his story of his journey because of the date of departure from Georgia and the duration of the journey. If, however, the whole story is a concoction, how did the appellant get to the place where he was found? And why lie about how he got there? The appellant gave his evidence confidently and consistently with that given in interview and before the adjudicator. The story has its peculiarities and a degree of vagueness creating doubts. We have our suspicion that there is a degree of embellishment about the underlying reason for leaving Georgia. We are, however, prepared to accept that there was a serious possibility that the appellant left Georgia because of a fear of being involved in the conflict with Abkhazia and, given the objective evidence, that at that date there was a serious possibility that that might occur through the activities of (and recruitment by) armed bands. However, that was 1994 and we have no evidence that in 1996 the same situation prevails. While in 1995 Professor Rayfield refers to an ability to return depending on agreeing to fight for a warlord, this is not to be equated with Russian residents in Georgia being "approached" to join the conflict in 1996. There is no evidence that the authorities in Georgia would now fail to control the armed bands or to offer protection to the appellant were he to be approached. Even assuming a continued subjective fear, such objective evidence as there is points to action by the Georgian government to control the "armed bands" and irregulars. There is no objective evidence as to forced recruitment by these bands or that any such recruitment would be condoned. Secondly, and affecting both 1994 and 1996, there is no evidential foundation for any persecution or likely persecution for a Convention reason. There is no evidence that recruitment was aimed at those of Russian ethnic origin. There is little, if any, evidence that the armed bands had as their targets any group which could quality as a "social group" under the Convention. Miss Chapman argued that this group was made up of "young men who had previously served in the Soviet army" - but, with respect, the only evidence for this is the surmise of the appellant. It is simply not shown that such a "group" exists, and even if it did, that it has any meaning save for the asserted persecution. No Convention ground other than race or social group is relevant to this aspect of the claim. On this ground alone therefore the appellant's case fails if based on asserted persecution by armed bands. (ii) Discrimination because of ethnic origin We accept that discrimination may amount to persecution (see e.g. Gashi (13695)) and we appreciate that there are ethnic problems in Georgia. However, apart from the delay in issue of the passport there is not the slightest evidence that Mr. Ivanov suffered any discrimination amounting to persecution. His evidence was that he ran a shop and had no money problems and apart from the passport question he gave no instance of any discrimination. The evidence as to the passport amounts at most to delay - the appellant said that his friends had to wait some time for passport, not that they did not receive them. Further, it is apparent from the letter from the Georgian government that Mr. Ivanov could apply for citizenship - and he has not. The circumstances outlined by Mr. Ivanov cannot, in our view, arguably amount to persecution. The claim based on inability to return For Mr. Ivanov to succeed he must show that at the date of hearing he was unable to return to Georgia, and that at the date when this inability occurred he was outside Georgia because of a well-founded fear of persecution (see Radivojevic (13372)). In our view, Mr. Ivanov fails to show an inability to return at the date of hearing. Whatever else the letter from the Georgian government shows, there is no doubt that the appellant could apply for citizenship. Further, when the appellant left Georgia, he had not been denied a passport - it had not yet been granted. We accept that delay may become denial, but on the evidence now before us Mr. Ivanov cannot show such a denial or that any citizenship application would be refused. Just as the Tribunal should not speculate on the result of a citizenship application so as to declare an applicant a citizen, so it should not speculate that a possible application would be refused. As in our view Mr. Ivanov has not shown that at the date of hearing he could not return to Georgia or a well-founded fear of persecution if returned there, we need not consider if at any date there was both a well-founded fear and an inability to return. The appeal is dismissed.