Asylum seeker - Appeal - Respondent North Korean nationals seeking asylum

SP (North Korea) and others v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lord Justices Maurice Kay, McFarlane and Davis): 16 February 2012

The respondents (SP, SC and KK) were nationals of the Democratic People's Republic of Korea (North Korea). All of the respondents had left North Korea for China, where they had each remained in excess of 10 years, before claiming asylum in the United Kingdom. Each of their asylum claims was rejected by the appellant secretary of state. It had not been disputed that, at all material times, the respondents had had, and had continued to have, a well founded fear of persecution in the event of their being returned to North Korea.

The secretary of state maintained that they could safely be returned to the Republic of Korea (South Korea). None of the respondents had been to South Korea, but each had acquired South Korean nationality at birth pursuant to provisions in the constitution of South Korea and its nationality law on account of the mutual refusal of each country to recognise the status of the other (see [3], [4] of the judgment). The respondents each contended that, although they had acquired South Korean nationality at birth, that nationality was no longer respected by the government of that country and, in reality, they could not be removed there.

They had each approached the South Korean Embassy but, in none of the cases had the embassy manifested a readiness to acknowledge the respondents' claims to nationality. The respondents appealed. The immigration judge refused their appeals, however, the Upper Tribunal (Immigration and Asylum Chamber) (the Upper Tribunal) allowed their appeals (see KK and others (Nationality: North Korea) Korea CG[2011] UKUT 92 (IAC)). The Upper Tribunal heard expert evidence on South Korean law and practice in respect of nationality.

The Upper Tribunal's findings included: (i) that the law and constitution of South Korea did not recognise North Korea as a separate state; (ii) under South Korean law, most nationals of north Korea were also nationals of South Korea; (iii) evidence did not show that South Korea had a practice of refusing to recognise its nationals who genuinely sought to exercise the rights of South Korean nationals; (iv) South Korean law did not generally permit dual nationality; and (v) South Korean practice appeared to presume that those who had been absent from the Korean peninsula for more than 10 years had acquired another nationality which displaced their South Korean nationality.

The Upper Tribunal then concluded that the respondents had acquired South Korean nationality at birth, but each had been outside Korea for more than 10 years. Although they remained North Korean nationals, on the evidence, South Korea would have treated them as persons who had lost their South Korean nationality. Consequently, they had had no subsisting or demonstrable entitlement to Korean nationality documents; they would have to apply to re-acquire South Korean nationality and there had been no reason to suppose that it would have been granted to them as a matter of routine.

Accordingly, they all had only North Korean nationality and, in that circumstance, they were refugees. The secretary of state appealed. She submitted that: (i) it had been irrational for the Upper Tribunal to have found, as a fact, that there had been a rule of South Korean law that there existed a conclusive presumption that a person who had been absent from the Korean peninsula for more than 10 years had acquired the nationality of another state and had, in consequence, lost his South Korean nationality; and (ii) it had been premature for the Upper Tribunal to have made a finding about the respondent's refugee status as, unless and until the South Korean authorities had made a decision that an individual was not a citizen of South Korea, the Upper Tribunal had not been in a position to come to such a conclusion itself. The appeal would be dismissed.

(1) The essential finding of the Upper Tribunal could not have been characterised as perverse or irrational. On the evidence, the Upper Tribunal's reference to a 'presumption' had been simply incidental to its essential finding, on the expert evidence, that a North Korean national who had been absent from Korea for more than 10 years would not be able to obtain the indicia of South Korean nationality despite his acquisition of that nationality by birth.

The term 'presumption' had not been used as a term of art by the Upper Tribunal. What mattered was that, as had been rationally found by the Upper Tribunal, in practice a 10-year absence from North Korea would be treated by the authorities in South Korea in a manner equivalent to one who had lost his South Korean nationality as a result of acquiring another nationality. Although a particular applicant might not, in fact, have acquired another nationality or even a right of residence in another country, it was plain that the South Korean authorities would not accept a mere assertion to that effect at face value (see [22], [23], [33], [40] of the judgment).

(2) In the circumstances, the Upper Tribunal had been entitled to reach the conclusions that it had at the time when it had reached them and, accordingly, there had been no legal error. Applying established principles, the respondents had acted bona fide and taken all reasonably practicable steps to seek to obtain the requisite documents to enable them to be recognised as nationals of South Korea. Further, they had instituted appeals which, in principle, had fallen to be determined in accordance with all the circumstances at the time of the hearing before the tribunal. The Upper Tribunal had determined the cases on the material that had been before it and which had justified its conclusions (see [29], [30], [33], [40] of the judgment).MA (Ethiopia) v Secretary of State for the Home Department [2009] All ER (D) 38 (Apr) applied.

Manjit Gill QC and A Khan (instructed by Thompson & Co) for SC; Mark Mullins (instructed by Gillman Smith Lee) for SP and KK; Steven Kovats QC (instructed by Treasury solicitor) for the secretary of state.