UK: Matters of foreign law relied upon must be proved through expert evidence

Wednesday, June 24, 2020

On 24 June 2020, the Upper Tribunal (Immigration and Asylum Chamber) published its judgment in the case of Hussein & Anor v Secretary of State of the Home Department [2020] UKUT 250 (IAC) concerning the requirement of expert evidence to prove matters of foreign law.

The case concerns a father and son who made requests for asylum in the UK. The appellant father stated that he was born in Somalia and entered the UK using a Tanzanian passport which he claims was fraudulently obtained in Kenya. He therefore argued, inter alia, that his asylum claim should instead be based in relation to Somalia where he would face a real risk of persecution. His application was rejected by the decision of the First Tier Tribunal. The applicant son argued, inter alia, that his removal from the UK would be disproportionate due to his dependence on his parents.

The Upper Tribunal (UT) rejected the appellant’s arguments on the basis that reliance on foreign law needs to be proved by expert evidence directed to the questions under consideration. Indeed, the UT noted that this principle had been laid down clearly in its previous case law.  It was held to be insufficient to produce foreign statute and assert that the statute represents the whole of the law. Therefore, the applicant had not provided evidential basis for any of the arguments pertaining Somali, Kenyan or Tanzanian law. The Court’s reasoning was to the effect that expert evidence was required so the Tribunal could reach an informed view as would be the case for anyone taking advice on an unfamiliar area of law. The Court also stated that there is no presumption of continuance of nationality from birth where there is evidence of a different nationality. The Court emphasised that the determination of nationality must be made on the evidence and the burden of proof rests with the applicant. In this case, the possession of a genuine Tanzanian passport that had undergone scrutiny by authorities on many occasions was evidence of Tanzanian nationality.

In relation to the applicant son, the UT noted that the principle issue was whether his removal would amount to a proportionate interference with his right to family life pursuant to Article 8(2) ECHR. The UT referred to, inter alia, the applicant’s state of health, level of education, and age of majority before concluding that there is no evidence to support the claim that his removal would be disproportionate.

Photo: Jeff Djevdet, February 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

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