whether these steps have been successful.208 The reasons that such steps are unsuccessful
may go some way towards establishing persecution under Article 1A(2) Refugee
Convention (or serious harm under Article 3 ECHR), and indeed, may provide a good
indication of persecution at its extreme, namely, denial of membership in society.
In ST (Ethiopia), the UK Upper Tribunal (UKUT) explained that the mere removal of an ID
card does not generally constitute persecution. 209 However, such an act constitutes
persecution when placed in the context of evidence of treatment by Ethiopian authorities of
persons in the appellant’s position, where the removal of the ID card is part of an ongoing
deprivation of nationality that has had a very serious effect on the appellant, and is therefore
discriminatory. 210 Accordingly, the appellant was required to establish that there was a
persecutory denial of the nationality right. This case follows the UK Court of Appeal
judgment in EB (Eritrea) where it held that discriminatory removal of ID documents itself can
constitute persecution within the meaning of the Refugee Convention if ‘done as it was with
the motive of making it difficult for EB [the appellant] in future to prove her Ethiopian
nationality’ and if done by the authorities.211 This is because the ability ‘freely to leave and
freely to re-enter one’s country’ is considered a basic right, explained the UK Court of
Appeal.212 With this judgment, therefore, the Court of Appeal is recognizing that persons
without nationality are entitled to refugee status if they can show that they have been
arbitrarily deprived of their nationality for discriminatory reasons (that is, linked a protected
Convention ground). 213 It is further envisaged that the inability ‘freely to leave and freely to
re-enter one’s country’ on discriminatory grounds, itself, amounts to persecution.
EB (Ethiopia) can be contrasted with MA (Ethiopia) v Secretary of State for the Home
Department),214 where the UK Court of Appeal did not find the deprivation of nationality to
constitute ill-treatment in the case of an appellant who had been able to leave Ethiopia under
her own passport and who had voluntarily left her passport to the agent who helped her
leave. Moreover, when asked to present herself to the Ethiopian embassy, she wrongly told
the staff that she was Eritrean. The UK Court of Appeal explained that ‘refugee status is not
a matter of choice. 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
YL (Eritrea) v SSHD, UKAIT, 30 June 2003, paras.45-46, referring to the Bradshaw principle as it extends to
asylum cases, that there may be valid reasons for a claimant not to approach his or her embassy or consulate, or
the authorities of the country direct, regarding an application for citizenship. But see, MA (Ethiopia) v. Secretary of
State for the Home Department, [2009] EWCA Civ 289, discussed below.
209 ST (Ethnic Eritrean – nationality – return) Ethiopia GC [2011] UKUT 252.
210 The general context referred to in ST (Ethiopia) can be read further in Eritrea Ethiopia Claims Commission,
Final Award, Eritrea’s Damages Claims between The State of Eritrea and The Federal Democratic Republic of Ethiopia, 17
August 2009, The Hague.
211 UKCA, EB (Ethiopia) 2007, para.63.
212 UKCA, EB (Ethiopia) 2007, Longmore LJ, para.67.
213 Shauna Gillan, ‘Refugee Convention – whether deprivation of citizenship amounts to persecution’, Journal of
Immigration, Asylum and Nationality Law 21 (4) 2007, 347-350.
214 MA (Ethiopia) v. Secretary of State for the Home Department, [2009] EWCA Civ 289.
208
38