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Passports: Foreign law must be proved by expert evidence

Written by
Asad Ali Khan
Date of Publication:
07 September 2020

Hussein and Another (Status of passports: foreign law) [2020] UKUT 250 (IAC): CMG Ockelton VP has explained that (i) a person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport, (ii) the burden of proving the contrary lies on the claimant in an asylum case, and (iii) foreign law (including nationality law) is a matter of evidence, to be proved by expert evidence directed specifically to the point in issue. The appellant Mr Hussein, who had permission to appeal, and the applicant Mr Abdulrasool, who was seeking permission to appeal, were father and son who made asylum claims, which were refused. The applicant, who was born in 2000, additionally claimed that he was so dependent on his parents that it would be disproportionate to remove him from the UK. Mr Hussein's wife and two minor children were included in the appellant's claim as his dependents. Both men gave their oral evidence in a hearing before FTTJ McAll in January 2020 as did Mr Hussein's brother. The SSHD was not present and FTTJ McAll considered Mr Hussein's claimed history in detail. He decided that he was untruthful and concluded that he had fabricated important parts of his account supporting his asylum claim. He decided that Mr Hussein was a national of Tanzania and could be returned there. He disbelieved the asylum claim and concluded that there was no good article 8 reason why he should not leave the UK and return to his country of nationality. Both appeals were dismissed.

Upon the father and son's applications for permission to appeal, the former was granted permission whereas the latter was not. Notably, the permission judge's reasons were not intelligible. She was considering grounds of appeal that did not challenge the judge's primary findings as to credibility and fact. The grounds challenged FTTJ McAll's reasoning leading to his conclusion that the appellant was a national of Tanzania and challenged his conclusion that he did not appreciate that although over 18 the applicant had been treated as a dependant of his parents for article 8 purposes. The appellant's nationality was the principal question and it was clear that he was born in Somalia and he entered the UK using a Tanzanian passport but later claimed that he was not entitled to a Tanzanian passport. The fact of his Tanzanian nationality would render is asylum claim wholly unmeritorious. He would not be persecuted in Tanzania. On the other hand, he argued that his asylum claim should be considered on the basis that he is a national of Somalia. Moreover, he said that he should not in any event be returned to Tanzania as he might have to suffer the consequences of his claimed fraudulent acquisition and ongoing use of a Tanzanian passport. It was his second Tanzanian passport that was used to enter the UK and it was claimed that the appellant Mr Hussein obtained both of his fake Tanzanian passports (issued in 2017 and 2005) by bribing members of the Khoja Shiah Community in Kenya.

He used the 2005 passport to obtain Kenyan work permits and did not immediately renew it on expiry and in 2017 he wanted to get work and got a new passport which he then used to travel from Kenya to Dubai and returned to Kenya, then from Kenya to the UK in 2018 for a visit back to Kenya. He then traveled to the UK in December 2018. He travelled on visit visas issued by the UK. The 2017 passport was seen and inspected at least 10 times on entry and exit through international airports, and twice by entry clearance officers. CMG Ockelton VP found no good reason to believe the claim that it was not a genuine document, made for the purpose of his asylum application.

It had been argued before CMG Ockelton VP, and to the FTTJ, that Mr Hussein was not entitled to the passport because he was not a national of Tanzania and his argument was founded on assertions about the law of Tanzania, in particular relating to the acquisition of nationality and the holding of dual nationality. There was an assertion that since he was born in Somalia there was a presumption of the continuation of his Somali nationality irrespective of the use and production of a Tanzanian passport. The Upper Tribunal was not impressed with this point and held that:

9. Those grounds cannot be accepted. First, foreign law is a matter of fact and must be proved by evidence. It is not sufficient to produce Tanzanian statutes and assert that the statute represents the whole of the law on the subject. A moment's consideration shows why that is so: it is absurd to suggest that a person who had access to the Queen's Printer's copy of the British Nationality Act 1981 would be able to deduce reliably from it the status of any postulant for nationality: it has been subject to numerous amendments, and it says nothing about the operation of policy or prerogative. Foreign law needs to be proved by expert evidence directed precisely to the questions under consideration, so that the Tribunal can reach an informed view in the same way as anybody taking advice on an unfamiliar area of law.

Ockelton VP was somewhat surprised that Mr Hussein's professional advisers overlooked this well-known principle and he pointed out that CS v SSHD [2017] UKUT 199 (IAC) and R(MK) v SSHD [2017] EWHC 1365 (Admin) confirmed his views. He determined that no evidential basis existed for any of the arguments about Somali, Kenyan or Tanzanian law that were made before the FTT or in the grounds.

He said that there is no presumption of the continuance of nationality. He said that a totally different presumption about the continuance of domicile exists whereby on the evidence, a person who demonstrates that he had a particular nationality at birth may not be subject to any serious challenge about still having that nationality, in the absence of no evidence to the contrary. However, where there is evidence of a different nationality this matter has to be determined on the evidence (in a refugee claim the burden of proof is on the claimant) and in the present case, it was for Mr Hussein to establish to the requisite standard that he was at risk of persecution in any country whose nationality he has, and the starting-point was for him to establish his nationality. Against that, Ockelton VP further explained that:

11. Passports have international recognition as assertions and evidence of nationality. On their face they constitute an address by the authorities of one State to the authorities of another at diplomatic level. The authority in whose name the passport is issued makes demands on the basis that the individual named in the passport is a national of and is entitled to be regarded as a national of the issuing state. Other States recognise that by treating the holder as a national of that State, and, in most circumstances, endorsing the passport to indicate that they have done so, particularly when a national border is crossed. Passports are the lubrication that allows international travel: without a reliable passport system each individual would have to prove identity, nationality and good standing by individualised evidence at every international border.

He explained that an individual did not have the choice to simply "opt out of that system by denouncing his own passport" and any state was not in a position to ignore the contents of a passport simply on the basis of the holder's assertion that the passport does not mean what it says. These points underpinned paragraph 93 of the UNHCR Handbook which explains that "nationality may be proved by the possession of a national passport" and that "possession of such a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise." The holder must substantiate his claim by demonstrating that the passport is a so‑called "passport of convenience" but the holder's mere assertion "that the passport was issued to him as a matter of convenience for travel purposes only is not sufficient to rebut the presumption of nationality". The issuing authority might be able to provide information failing which a decision will have to be made on the credibility of the applicant's assertion in weighing all other elements of his story". These observations target documents genuinely issued by the named state to the holder.

Consequently, worldwide and particularly at international borders, attention has to be given to the detection of forged and altered passports. Furthermore, a deceptive document will not have the effect of a genuine passport and conversely a document not detected as a forgery does produce that effect, both diplomatically and in the manner its holder is perceived in a country that is not his country of nationality.

As applied to Mr Hussein, nobody except him and his advocates said that his Tanzanian passport was defective and the document had not been considered suspect and survived scrutiny many times. Mr Hussein did not possess any expert evidence to support his claim and his general credibility was questionable since his argument that he cannot, under the Tanzanian law, be of Tanzanian nationality was unsupported by any evidence and the FTT was correct to find that his claim was fabricated.

Ockelton VP found no reason to consider that Mr Hussein's Tanzanian passport was in fact a genuine statement of his Tanzanian nationality and was proof that the SSHD had to treat him as a national of Tanzania. Consequently, it follows that he fell to be treated as a national of Tanzania for the purposes of his asylum claim. The claim that he will be prosecuted back in Kenya for passport offences did not converge with his claimed fear of persecution since he said that he obtained the passports just to benefit by getting illegal work in Kenya. Thus any punishment would be for his own actions and not for a Refugee Convention reason and there was no proper basis for concluding "that he would be subject to any process in relation to his passport, because there is no reason to suppose that there is anything wrong with his use of Tanzanian passports." The Upper Tribunal held that:

17. The judge reached unchallenged views on the appellant's credibility; his view that the appellant was a Tanzanian national is one that he was bound to reach on the evidence before him. Any error he may have made in reaching that view was accordingly wholly immaterial. I dismiss the appellant's appeal against his decision.

The applicant Mr Abdulrasool was a Kenyan national and perhaps had other nationalities and dropped his claim that he was at risk of persecution in his country of nationality and instead relied on a mental disorder of which he had no evidence in the FTT save that he was prescribed Citalopram and received counselling. Evidence was adduced on his behalf by his representatives that he would experience "lack of care" in Somalia. As he was a national of Kenya, his removal was proposed to Kenya, and lack of care in Somalia was irrelevant even if true. FTTJ McAll found that Mr Abdulrasool was an adult dependant child but he found no evidence of dependency above and beyond the normal levels of dependency and that his removal was in the public interest. He spoke English and was well educated and it was FTT McAll's view "that if allowed to remain in the UK I am satisfied that he would seek to extend that education and eventually find gainful employment." He fabricated his asylum claim and effective immigration controls were in the public interest and having taken all the evidence in the round it was in the public interest for him to be removed.

Although the Home Office had accepted that evidence before FTTJ McAll was sufficient to establish dependence, the error was purely technical as the question was not whether the applicant fell into one or another category, but whether his removal from the UK would be proportionate after an exercise was conducted with regard to article 8(2). The applicant's father's claim failed and the other members of Mr Abdulrasool's family made claims that were entirely dependent on those of Mr Hussein. None of them had any right to remain in the UK and if they were removed to Tanzania and Kenya there was no reason to suppose that they would not readily be able to live together if they chose to do so. Mr Hussein's story was that his Tanzanian passport enabled him to live and work in Kenya. Ockelton VP found that if Mr Abdulrasool was to maintain his dependence on his parents he could live with them.

Nothing in his evidence suggested that it would be disproportionate to remove him from the UK and departing with his parents would only slightly interfere with his family life. Hence the only substance to his claim against removal would be something tying him to the UK and the evidence contained nothing of substance at all. And even if his parents remained in the UK, there was still nothing making it disproportionate to remove him from the UK because he was in good health and there was no reason that he could not look after himself. He was over 18, educated and accustomed to life in Kenya. No possibility arose at all that despite failing on the Immigration Rules he was someone who should not be expected to return to the country of his nationality. FTTJ McAll's error of law, if any, was immaterial. Permission was granted only because the Home Office was prepared to accept that the evidence before FTTJ McAll was sufficient to establish dependence, and that to that extent the judge was in error. Ockelton VP dismissed the appeal because he was not persuaded that there was any real error in looking at matters of substance and if there was an error by the judge, it was wholly immaterial.

This is a very interesting determination. Unfortunately for Mr Hussein, his professional advisers did not seek to prove foreign law as a matter of fact by expert evidence. The fact that he had attacked the genuineness of his own Tanzanian passport did not help him at all in his asylum claim.

I have been acting as a legal expert on Pakistan asylum cases and it is very true that the country is suffering greatly from poor management and religious and sectarian issues. Despite all his claims, Imran Khan has not been able to change anything and in fact his government has made things in Pakistan much worse than they were in the past.

On the other hand, Pakistan's National Database and Registration Authority (NADRA) has an international presence, it has been busy developing the National Driver's License System Bangladesh, the Passport Issuance & Control System Kenya, the Electronic Passport System Kenya, the Civil Registration System Sudan, the Election Management System Fiji and the National Identity Management System Nigeria. So perhaps there is some hope for Pakistan after all.