Secretary of State for the Home Department v. C B S

Parties (including notable third parties)

Appellant: The Secretary of State for the Home Department; Respondent: C B S (Anonymity Direction Made)

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Summary of Facts

The case concerns the appeal by the Secretary of State for the Home Department of the United Kingdom (‘Home Office’) against a decision of the First-tier Tribunal of the Immigration and Asylum Chamber (‘First-tier Tribunal’)  allowing the asylum appeal of CBS, who claimed to be a Mauritanian citizen and a black African who had been subjected to discriminatory treatment by Mauritanian authorities.

The central issue was whether CBS would be recognised by Mauritania as a Mauritanian national and granted documentation confirming his nationality. If so, then he would be deported. His case was advanced on two bases before the First-tier Tribunal:

1.A fear of reprisals from a former slave master (rejected as unfounded by the First-tier Tribunal); and
2.That he was stateless because Mauritania would not recognise him as a citizen due to discriminatory nationality laws following reforms in Mauritania in 2010.

The First-tier Tribunal accepted expert evidence that the 2010 reforms to Mauritanian nationality law shifted recognition to descent-based criteria (as opposed to country of birth) and required proof of the father’s nationality, which CBS could not provide due to his childhood enslavement, lack of documentation, and inability to trace family.

On that basis, the First-tier Tribunal allowed the appeal on asylum grounds. The Tribunal found that the discriminatory denial of recognition meant that CBS was a de facto refugee by reason of being stateless. Accordingly, he could not be deported to Mauritania.

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Legal Arguments

Legal Arguments by the Appellant

The Home Office appealed to the Upper Tribunal on two grounds:

1. That the First-tier Tribunal made a material mistake of fact in stating CBS had been interviewed twice at the Mauritanian Embassy in 2017, and that this mistake affected the rest of First-tier Tribunal’s decision;
2. That the appellant could not be regarded as de facto stateless because he had not made reasonable efforts to establish nationality through the Mauritanian embassy and therefore the Mauritanian embassy never refused to issue an Emergency Travel Document (‘ETD’).

Legal Arguments by the Respondent

CBS’s arguments focused on the discriminatory deprivation or denial of recognition of his Mauritanian nationality. The First-tier Tribunal framed the core question as whether CBS would be recognised by Mauritania and thus whether he was stateless. It noted that discriminatory removal or denial of identity documents can constitute persecution when intended to obstruct proof of nationality. It also found that  the inability to freely leave and re-enter one’s country is a basic right the discriminatory denial of which amounts to persecution. The expert evidence indicated that Mauritania’s 2010 amendment to nationality law removed rights based on birth in the country and required proof of the father’s nationality, thereby disproportionately disadvantaging black Africans such as CBS. The First-Tier Tribunal relied on evidence that CBS had never held Mauritanian identity documents and had provided all available information without success. The Tribunal accepted the expert’s view that he was extremely unlikely to obtain recognition or documentation. This rendered him a stateless person under Article 1(1) of the ECHR relating to the status of stateless persons.

Outcome

The Upper Tribunal upheld the First-tier Tribunal’s decision and affirmed that the discriminatory denial of recognition of nationality and identity documentation can amount to persecution.

CBS had established that he was de facto stateless and thus entitled to refugee protection, satisfying the exception to automatic deportation under Section 33 of the UK Borders Act 2007.

The Upper Tribunal also clarified the proper use of MA (Ethiopia) v SSHD [2009] EWCA Civ 289 (‘MA’), emphasising reasonableness in requiring steps to establish nationality, while recognising that here, unlike in MA, CBS had cooperated fully and provided all available information, and the evidence showed an ‘extremely unlikely’ prospect of recognition under current Mauritanian law.

The Upper Tribunal highlighted MA but carefully contextualised its application, saying:

‘[I]n my judgment, where the essential issue before the AIT is whether someone will or will not be returned, the Tribunal should in the normal case require the applicant to act bona fide and take all reasonably practicable steps to seek to obtain the requisite documents to enable her to return.’ (MA, Elias LJ, paragraph 50); and

‘A person cannot be entitled to refugee status solely because he or she refuses to make an application to her embassy, or refuses or fails to take reasonable steps to obtain recognition and evidence of her nationality.’ (MA, Stanley Burnton LJ, para 83).

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights 1954	Article 1(1), 8
Domestic	UK Borders Act 2007	Section 33

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Not available.