The enduring problem of statelessness in the horn of Africa: How nation-states and western courts (re)define nationality

International Journal of Refugee Law

Volumn 23, Issue 4, 2011, Pages 656-679

  Campbell, John R ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; CITIZENSHIP; CIVIL RIGHTS; LEGAL RIGHTS; NATION STATE; VULNERABILITY;

ERITREA; ETHIOPIA;

EID: 82055189989     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eer024     Document Type: Article

References (92)

1. I. Goris, J. Harrington & S. Köhn, 'Statelessness: what it is and why it matters' (2009) 32 Forced Migration Review 4-6.
2. Sources used in sections 2 and 3 include: Writenet, 'Ethiopia: A Sociopolitical Assessment', 1 May 2006, s. 6.3, available at: .
3. H. Byrne, 'Eritrea & Ethiopia: Large Scale Expulsions of Population Groups and Other Human Rights Violations in Connection with the Ethiopia-Eritrean Conflict, 1998-2000' (QA/ERI/ETH/02.001), INS Resource Information Centre, 2002.
4. Human Rights Watch: 'Human Rights Watch World Report 1999 - Ethiopia', 1 Jan. 1999, available at: .
5. 'The Horn of Africa War: Mass Expulsions and the Nationality Issue', Eritrea & Ethiopia, 30 Jan. 2003, available at: .
6. N. Klein, 'Mass expulsion from Ethiopia: Report on the deportation of Eritreans and Ethiopians of Eritrean origin from Ethiopia, June - August 1998', available at: .
7. A. Legasse, 'The Uprooted: case material on ethnic Eritrean deportees from Ethiopia concerning human rights violations', Citizens for Peace, 1998.
8. Eritrean Relief & Refugee Commission, 'A Preliminary report on the Eritrean nationals expelled from Ethiopia during June-July 1998: a synopsis of their social characteristics and manners of deportation', 27 July 1998, available at: (accessed 6 Mar. 2004).
9. Amnesty International: 'Ethiopia/Eritrea: A year of armed conflict' (AI Index AFR 04/05/99) 1999, available at: .
10. 'Ethiopia and Eritrea Human Rights Issues in a Year of Armed Conflict' (AFR 04/03/99) 1999, available at: .
11. 'Ethiopia and Eritrea: cease-fire and human rights' (AI Index AFR 04/001/2000), available at: .
12. 'Forcible return/torture and ill treatment' (UA235/07, 2007), available at: .
13. In Arts. 39 and 46, a 'Nation, nationality or People' is 'a group of people who have or share large measure of a common culture or similar customs, mutual intelligibility of language, belief in a common or related identities, a common psychological makeup, and who inhabit an identifiable, predominately contiguous territory' (39.5).
14. An English translation of the Constitution can be found at: (accessed on 2 Dec. 2002).
15. J. Abbink, 'Ethnicity and Constitutionalism in Contemporary Ethiopia' (1997) 41 Journal of African Law 159-74.
16. P. Brietzke, 'Ethiopia's "Leap in the Dark": Federalism and Self-Determination in the New Constitution' (1999) 40 Journal of African Law 19-38.
17. Agreement on Security and Related Matters signed in Addis Ababa on 13 May 1994 by Kuma Demeska, Minister of Internal Affairs (Ethiopia), and Naizghi Keflu, Vice Minister of internal Affairs (Eritrea), Art. 2.1.
18. Human Rights Watch (2003), above n. 2.
19. Neither the nationality nor the exact number of individuals deported by Ethiopia are known. Submissions on this issue were made by Eritrea and Ethiopia to The Hague (see, Eritrea-Ethiopia Claims Commission, 'Partial Award - Civilian Claims, Eritrea's claim', 17 Dec. 2004, available at: ).
20. However, while the Commission found that Ethiopia acted largely within the bounds of customary international law in expelling 'Eritreans', it also found evidence of the unlawful expulsion of ethnic Eritreans who had an entitlement to Ethiopian nationality
21. Byrne (2002), above n. 2, iv.
22. Country Reports on Human Rights Practices: Ethiopia (2001), (US Department of State, 2002), 9
23. See, .
24. The law set out the provisions for recognizing the nationality of Ethiopian subjects born abroad, for assigning nationality when an Ethiopian marries a foreigner, and for naturalizing 'foreigners'
25. See, (accessed 2 July 2009).
26. In its submissions to the Eritrea-Ethiopia Claims Commission, Ethiopia relied on s. 11 of the 1930 Law as the basis for denationalizing Eritreans who were 'dual nationals'. This law, which was superseded by the 1995 Constitution, states only: 'Loss of Ethiopian Nationality, (a) Ethiopian subject who acquires another nationality'.
27. See, Claims Commission 2004, para. 43.
28. At the very time that restrictions on citizenship for Ethiopians of Eritrean descent were being formalized, the government was wooing the Diaspora by offering special 'Ethiopian Origin Identity Cards' that did not require individuals to give up their foreign nationality
29. (See, A. Terrazas, 'Beyond Regional Circularity: The Emergence of an Ethiopian Diaspora', Migration Policy Institute (2007), available at: (accessed 17 Mar. 2008)).
30. The cards entitle individuals belonging to other ethnic groups the right to return, own property, invest and work in Ethiopia. These persons did not have the right to vote.
31. This can be found at: (accessed on 22 May 2009).
32. 'Recently issued directive will benefit only Eritreans who lived in Ethiopia permanently' at: (accessed on 6 Nov. 2006).
33. This speech was also picked up by a German news service, see, 'Aiszüge aus Ethiopia Seven Days Update' (24 Mar. 2004), available at: (accessed 23 May 2009).
34. UNHCR, 'Statelessness and Issues Relating to Nationality from the Ethiopian Perspective', The Protection Unit, Addis Ababa (2007), (copy in the author's possession)
35. See, .
36. Ethiopia's report speaks in general terms of rights under the law. For instance, 'when it comes to the children of parents of Eritrean origin, their nationality shall be determined by the Ethiopian nationality law... by the decision of the Ethiopian parent'.
37. see, Ethiopia, 'Reports Submitted by States Parties under Art. 9 of the Convention: Ethiopia', UN Int'l Convention on the Elimination of all forms of Racial Discrimination (CERD/C/ETH/7-16; 2008), para. 138.
38. Refugees International, 'Ethiopia-Eritrea: stalemate takes toll on Eritreans and Ethiopians of Eritrean origin' (2008), available at: (accessed 23 May 2009).
39. Open Society Justice Initiative, 'Discrimination in Access to Nationality', Review of Ethiopia (2009).
40. See, .
41. E.g., in terms of dates of birth and periods of residence in Eritrea (ss. 3 & 4) and with respect to depriving an individual of their nationality (ss. 8 & 9).
42. Data on Ethiopians in Eritrea comes from International Committee of the Red Cross annual reports for 2005, 2006 and 2007. Those allowed to stay and register for resident permits are not allowed to work nor are they issued exit visas allowing them to leave. In effect, they are aliens (United Kingdom Border Agency, 'Eritrea - Country of Origin Information Report' (2009), para. 30.05-07. Open Society Justice Initiative, above n. 21.
43. N. Browne, S. Riordan & M. Sharpe, 'The Insecurity of Eritreans and Ethiopians in Cairo' (2004) 16 IJRL 661-701.
44. L. Thomas, 'Refugees and Asylum-Seekers from Mixed Eritrean-Ethiopian Families in Cairo: "The son of a snake is a snake"', FRMS Working Paper no. 7 (2006).
45. UNHCR, 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea' (2009)
46. Source: 'Ethiopia to resettle over 3,000 Eritrean refugees this year' (9 Feb. 2010) available at: .
47. rd ed., 2007), 67-70.
48. C. Batchelor, 'Statelessness and the Problem of Resolving Nationality Status' (1998) 10 IJRL 156-82.
49. M. Adjami & J. Harrington, 'Article 14(2) of the Universal Declaration of Human Rights and Exclusion from International Refugee Protection' (2009) 27 RSQ 53-75.
50. C. Batchelor, 'Stateless Persons: Some Gaps in International Protection' (1995) 7 IJRL 232-59.
51. Goris, Harrington & Köhn, above n. 1.
52. Immigration Advisory Service, 'The Use of Country of Origin Information in Refugee Status Determinations' (2009), 116
53. E. Smith, 'Right first time? Home Office asylum and interviewing and reasons for refusal letters', Medical Foundation for the Care of Victims of Torture (2004).
54. McDonalds Immigration Law & Practice (Butterworths, 1983), 250-1
55. Kelzani v. SSHD (7 Nov. 1978) Imm AR 193.
56. Equal Rights Trust, Legal Working Paper, 'The Protection of Stateless Persons in Detention under International Law' (2009), available at: .
57. A. Good, Anthropology and Expertise in the Asylum Courts (Glass House & Routledge, 2007), 64.
58. The evidence for this comes from the rapid growth in the size and workload of the Treasury Solicitors (from 30 to 120 solicitors between 2005 and 2008) who are instructed by the Home Office to litigate appeals made by the Home Secretary. Home Office expenditure on this work has escalated from approximately £887,000 in 1998 to £10,796,000 in 2009 (source: interview with Simon Harker, Director of the Treasury Solicitors Office, 28 Sept. 2008 and a Freedom of Information Request). The legal status of a large number of stateless persons, who have been refused asylum but who are not 'removable' and who therefore are denied access to housing and key social benefits, went to the Court of Appeal in late 2009.
59. See, 'The Queen on the Application of Rabah, Woldemichael & Sadaah v. SSHD, [2009] EWHC 1044 Admin'. Woldemichael is an Ethiopian of Eritrean origin. The decision can be found at: .
60. The appeal was heard in Dec. 2009 (see, 'R (on the application of MS, AR & FW) v. SSHD [2009] EWCA Civ 1310') but it 'was so complex that it was hard to tell who won or who lost, or precisely why, or what should be done about it' (comment by the instructing solicitor on the case).
61. See, .
62. The Legal Aid Society, 'Immigration, Detention and Removal: A Guide for Detainees and Their Families', B. Lonegan & The Immigration Law Unit of the Legal Aid Society (2004), available at: .
63. E.g., in a 2003 appeal, ten errors were found by the judge and corrected in court, see, 'Tedros Medhin v. John Ashcroft, No. 02-4247', decided 1 Dec. 2003, Seventh Circuit Court, US.
64. Greater London Authority, 'Into the Labyrinth: Legal Advice for Asylum Seekers' (2005)
65. W. Somerville, 'The Immigration Legacy of Tony Blair', Migration Information Source (2007), available at: .
66. Information Centre about Asylum & Refugees, ICAR statistics Paper 2, 'Asylum-Decision Making and Appeals Process' (2009), available at: .
67. J. Ramji-Nogales, A. Schoenholtz & P. Schrag, 'Refugee Roulette: Disparities in Asylum Adjudication' (2008) 60 Stanford Law Review 296.
68. A. Rottman, C. Fariss & S. Poe, 'The Path to Asylum in the US and the Determinants for Who Gets In and Why?' (2009) 43 International Migration Review 3-34.
69. See, UNHCR's (1992) definition of 'race' (at paras. 68-69) and 'nationality' (at paras. 74-75).
70. R. Williams, Keywords (Fontana, 1976).
71. UNHCR, 'Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees' (1992)
72. See, .
73. Batchelor (1998), above n. 29, 168.
74. [1994] Imm AR 359. Recent case law summarizes this principle, see, YL (Nationality - Statelessness - Eritrea - Ethiopia) Eritrea CG [2003] UKIAT 00016, para. 44. In Australia the equivalent statutory authority is subsection 36(2) of the Act, qualified by subsections 36(3), (4) and (5)1, which commenced on 16 Dec. 1999; in the US it is USC 1101(a)(42)(A).
75. The British Home Office and the courts rely on a literal reading of the Eritrean nationality law to argue that, Eritrea being such a small country, applicants could easily find the required three witnesses to vouch their claim to nationality
76. Batchelor (1995), above n. 30, 249-50.
77. In effect, the Home Office is asserting that an ethnic Eritrean, though born and raised in Ethiopia, has an entitlement to Eritrean nationality because of the wording of Proclamation No. 21 of 1992, which recognizes qualified rights to dual nationality. Relevant case law includes BG [Removal to Eritrea of Ethiopia/Eritrea] Eritrea CG [2003] UKAIT.
78. MA is the acronym given to this case by the courts. The author has followed the case for two years, met MA, attended all her recent hearings, obtained relevant case material and interviewed her barrister. See, MA and others (Ethiopia - Mixed ethnicity - dual nationality) Eritrea [2004] UKIAT 00324 and MA (Disputed Nationality) Ethiopia [2008] UKAIT 00032.
79. See, R v. IAT ex parte Tewolde (unreported heard 18 May 2000).
80. See, EB (Ethiopia) v. SSHD [2007] EWCA Civ 809.
81. The findings of the Claims Commission, an international arbitration commission and not an international court, focused on the claims of the two states and were not concerned with the private interests of individuals (e.g., those who were deported or whose property was confiscated). Thus, even though the findings of the Commission support the arguments advanced in this article, they are not accepted as evidence by British courts because allegations about breaches of international law were not proven to a high standard of proof.
82. Applicants are caught up in an absurd catch-22 situation: Ethiopians of Eritrean descent are required to approach the Ethiopian and Eritrean embassies; at the former they must not claim to be 'Eritrean' (lest the authorities refuse to recognize them), while at Eritrean embassies they must not say they are 'Ethiopian'. The courts believe that such good faith applications will be successful. However, all the available evidence indicates that this does not work.
83. See, MA (Ethiopia) v. SSHD [2009] EWCA Civ 289, the basis of the appeal is given at paras. 17 & 26.
84. US Judges have found that individuals who fled in anticipation of expulsion were not persecuted for a Convention reason (see, Senait Kidane Tesfamichale and Dawit Tessea-Damate, petitioners, v. Alberto Gonzales, US Attorney General, respondent, no. 04-61180, US Fifth Circuit Court, 24 Oct. 2006) and in 'Nighisti Woldemariam, Issac Ghebretnsae Beletse, petitioners v. John Ashcroft, US Attorney General, no. 03-4518 before the US Third Circuit Court', where the petitioners' evidence of being ethnic Eritreans who were deported from Ethiopia was accepted, the court found that 'involuntary deportation' did not amount to persecution under the Convention.
85. Within 12 months of her appeal being overturned, MA made a fresh application for asylum based on evidence from the author's meetings with Embassy Officials, which resulted in a grant of Indefinite Leave to Remain by the Home Office.
86. For evidence concerning how this issue was decided in other jurisdictions, see, 'Refugee Appeals Authority of New Zealand, appeal no. 75028, decided 13 May 2004'; 'Everusalem Teklu, petitioner v. Alberto Gonzalez, US Attorney General, no. 04-4014, decided on 29 Aug. 2005 by the US Seventh Circuit Court'.
87. See, 'Tedros Medhin, petitioner v. John Ashcroft, US Attorney General, no. 02-4247, decided on 1 Dec. 2003 in the US Seventh Circuit Court'.
88. In addition to the evidence adduced elsewhere in this article, there is corroborative evidence from asylum claims decided in other jurisdictions, see, for instance, 'Tesfamichael v. Minister of Immigration & Multicultural Affairs [1999] FCA 1661 (2 Dec. 1999)' and 'V03/16458 [2004] RRTA (2 Sept. 2004)'. The situation is acute in the US, where 4,562 Ethiopians and 658 Eritreans were being detained for deportation on immigration and/or criminal grounds because the two countries were 'blocking or inhibiting repatriation'; see, US Department of Homeland Security, 'Detention and Removal of Illegal Aliens', US Immigration and Customs Enforcement, Office of Audits, OIG-06-33 (2006), 17-19.
89. Note that the Home Office does not submit its own expert reports and that the appellate courts are not allowed to 'interfere' with findings of fact made by the Tribunal, they can only overturn decisions that show significant errors of law (see, The Nationality, Immigration and Asylum Act (2002), s. 101(1)).
90. S. York, 'Enforced Destitution: Impediments to Return and Access Section 4 "Hard Cases" support' (2008) 22 J. of Immigration Asylum & Nationality Law 5-26.
91. An analysis of statistics indicates that 'a greater proportion of cases (appeals) brought by the Secretary of State were allowed' than was the case with appeals brought by appellants (see, above n. 40).
92. A. Fisseha, 'Federalism and the Adjudication of Constitutional Issues: The Ethiopian Experience' (2005) LII Netherlands International Law Review 1-30.