The High Court has certified a point of law for appeal to the Supreme Court concerning how refugee status should be assessed when a state’s agencies have arbitrarily denied a person citizenship.
The decision, delivered by Mr Justice O’Keeffe on 21 December 2012, followed an earlier refusal of leave to seek judicial review of the Refugee Appeals Tribunal’s negative recommendation on an asylum application. The court had granted an extension of time but refused judicial review leave on 18 June 2012. The applicant then sought a certificate allowing an appeal under section 5(3) of the Illegal Immigrants (Trafficking) Act 2000.
The asylum account set out in the judgment said the applicant was born in Bhutan in 1964 and was a member of the Brahmin Nepali ethnic group. He said he was active in the Bhutan People’s Party, was detained and tortured in Bhutan, and fled with his family to Nepal, where they were stripped of Bhutanese citizenship. He said he later returned to Bhutan in 2010, was again detained and tortured, then escaped through India and travelled to Ireland. These were the applicant’s account, not findings made in this decision.
The Refugee Applications Commissioner and the Tribunal treated the applicant as stateless and Nepal as his country of former habitual residence. The Tribunal made adverse credibility findings and concluded that he had not established persecution for a Convention reason in Nepal or a future risk there. In June 2012, the High Court found no basis to grant judicial review leave, including on the challenges to the nationality assessment, country information and credibility findings.
In the certificate application, the applicant proposed three questions, including whether removal of citizenship could amount to persecution. The court held that the first two proposed grounds did not arise from its earlier judgment because the authorities had assessed the claim on the basis that the applicant was stateless and Nepal was his former habitual residence.
It granted leave to appeal on an amended version of the remaining question: whether, when a state’s agencies arbitrarily deny a person citizenship, that state should still be treated as the person’s country of nationality for refugee-status purposes, or the person should be regarded as stateless. The court said the issue was uncertain, had broader consequences and warranted an authoritative Supreme Court determination. It certified the point as one of exceptional public importance and found an appeal desirable in the public interest.
The court declined to seek a preliminary ruling from the Court of Justice of the European Union before deciding whether to grant the certificate. The decision grants leave to appeal on the certified question; it does not resolve that question or determine the appeal.