obtain recognition and evidence of her nationality’.215 Thus, it is harder for a person to show
that they are stateless if they haven’t made any steps to claim nationality. The Court
confirmed that ‘denial of return is not of itself persecution’, but that deprivation of
nationality would amount to persecution if the consequences were sufficiently serious.216
‘The legal and practical consequences for any person of the deprivation of nationality in a
foreign state are questions of fact’.217 Similar findings have been made by the UK Asylum
and Immigration Tribunal (UK AIT), the UK Court of Appeal, the UK Supreme Court, and
the Irish High Court in cases involving stateless Palestinians from the West Bank.218
It should be noted that this position is in stark contrast with the approach of the European
Court of Human Rights in its application of Article 3 ECHR to rejected asylum seekers. The
Strasbourg Court requires that ‘substantial grounds’ be shown for believing that an asylum
seeker would face ‘a real risk’ of being subject to treatment contrary to Article 3, if returned
to his or her country of origin. 219 The requirement of ‘substantial grounds’ has been
interpreted by the European Court of Human Rights in Strasbourg to mean that reasonable
grounds exist that expulsion is going to take place, namely that it is certain and imminent.220
Hence, the Strasbourg Court has failed to recognize as ‘victims’ under Article 35 ECHR,
rejected asylum seekers against whom an expulsion order has not yet been made.221
It follows that in relation to protection under the Refugee Convention, persecution must be
established in order to ascertain whether the applicant would be re-admitted to her country
of former habitual residence; however, in relation to protection under human rights law, ‘the
issue of whether there would be serious obstacles to re-admission must remain central to the
question of whether there is a real risk of serious harm’. 222 This key difference may be
explained by the fact that Article 3 ECHR has been interpreted to offer protection to a rejected
asylum seeker against refoulement to his or her country of origin (he or she having otherwise
MA (Ethiopia) v. Secretary of State for the Home Department, [2009] EWCA Civ 289, UK, 2 April 2009, para.83 available at: http://www.refworld.org/docid/49da220e2.html [accessed 19 June 2013]
216 MA (Ethiopia), paras.64 and 66.
217 MA (Ethiopia), para.66. To read more on this case, see John R. Campbell, ‘The Enduring Problem of
Statelessness in the Horn of Africa’, 23 International Journal of Refugee Law 2011, 656-679.
218 In the UK: BA and Others (Kuwait) CG v SSHD [2004] UK AIT 00256; MA (Palestinian Territories) v Secretary of
State for the Home Department [2008] EWCA Civ 304; MT (Palestinian Territories) v Secretary of State for the Home
Department [2008] EWCA Civ 1149; SH (Palestinian Territories) v Secretary of State for the Home Department [2008]
EWCA Civ 1150; and now MS (Palestinian Territories) v SSHD [2010] UKSC 25.
In Ireland: High Court, S.H.M. v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2009]
IEHC 128, applying Revenko.
219 Chahal v UK, 70/1995/576/662, Council of Europe: European Court of Human Rights, 15 November 1996,
available at: http://www.refworld.org/docid/3ae6b69920.html [accessed 24 September 2013]; Saadi v Italy, Appl.
No. 37201/06, Council of Europe: European Court of Human Rights, 28 February 2008, available at:
http://www.refworld.org/docid/47c6882e2.html [accessed 24 September 2013]
220 Hélène Lambert, ‘Protection against Refoulement from Europe: Human Rights Law Comes to the Rescue’,
International and Comparative Law Quarterly 48 (1999), 515-544, at 538-9.
221E.g., Vijayanathan and Pusparajah v. France, 75/1991/327/399-400, Council of Europe: European Court of Human
Rights, 26 June 1992, available at: http://www.refworld.org/docid/3ae6b6f98.html [accessed 18 June 2013].
222 YL (Eritrea) v SSHD, UKAIT, 30 June 2003, para.64.
215
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