Refugees and Legal Problems
Legal systems often struggle when refugees come with a different mind set, and have questions and issues that have no ready answer. There are problems that are common to many migrants, but which arise particularly sharply for some refugees.
Travel
The refugees dare not travel to their home country. The fact that their travel patterns show a failure to visit their home country is therefore not indicative of a lack of interest in their home country or of abandonment of a domicile. Additionally, or alternatively, they may have no passport. The travel documents issued to refugees usually prohibit visiting their country.
Country of origin disappears!
Their country of origin may have disappeared! This can happen by the break up of a mighty country like the Union of Soviet Socialist Republics (“USSR”). Vast numbers of people were forcibly moved around the USSR, and considerable numbers were posted or voluntarily moved to areas where skilled workers were needed. Ethnic Russians were moved to every area of the USSR, now forming minorities everywhere.
There were of course marriages across ethnic religious and cultural differences, creating situations where couples cannot live together anywhere and the children of such marriages are pariahs. People born in various countries may regard themselves as there temporarily, but to be say “Russians”. Often Russia won’t let them in.
People from Eastern Poland or Ruthenia found that their territory had become part of the USSR in 1945. Emotionally Poles or Czechoslovakians, they could not have domicile in their home town or village but in the remnant Poland or Czechoslovakia where perhaps they had never lived. Boundary adjustments happen all over the world. In Bradford there are considerable numbers of people who may have British or Pakistan or Indian passports but who are Kashmiri. Their domicile may well not be Kashmir –but perhaps it is. Do they intend to live there? Why are they here? Given that Azad Kashmir has a separate legal system there is an Azad Kashmir domicile distinct from the Pakistan domicile.
With global warming there are countries like Vanuatu which will shortly cease to exist. What is the domicile of origin of a Vanatuaan then?
Boundary changes
Someone from Northern Cyprus might have domicile of a country that is not legally recognised. What finding should the court make about domicile? A person from a territory in revolt or in a failed state where perhaps there is no law might have an interesting domicile question.
With boundary adjustments, people may find that the territory in which they live has moved from one country to another. A resident of Istria may have been born in 1917 as part of the Austro-Hungarian Empire, then Italy, then Yugoslavia, then Independent Trieste, again Yugoslavia, and now Croatia. Does his domicile of origin retrospectively fluctuate with the winds of history, or does it remain fixed no matter what happens to the town where he lives?
The law seems to be that if my permanent home is in Bradford I have domicile in and throughout England and Wales. Should Yorkshire become independent or be annexed by Scotland my domicile of origin will fluctuate to Yorkshire or Scotland. My actions are always judged by my domicile at the date of my actions. On the other hand, Poles Ruthenians and Palestinians might disagree.
Palestinians and Jews
Many current Palestinians were born outside Palestine. It is an accident of history whether their parents fled (or were expelled) to Lebanon, Syria, Egypt or Jordan. They may have been internally displaced to Gaza or the West Bank without leaving Palestine. Given that their “host” country never wanted them or their parents, and they have grown up in UN Refugee camps, what is their domicile? There seems to be common accord that where they happened to be born is not relevant, they are Palestinians. We would say they had a domicile of dependency on their parents or grandparents, who had a domicile of origin of Palestine. They have not formed a domicile of choice.
Given that there was a long period where Palestine was a concept without a territory, should Palestine have ceased to exist as a domicile? Would Palestine domicile continue to exist while there was a single person who still believed in it? Is a person of Palestinian heritage living in Israeli occupied Palestine of Palestine domicile or Israel domicile? If a Palestine state is formed, what is the domicile of those Palestinians who originate in land which does not become part of the new State of Palestine?
This leads to an interesting problem in relation to Jews. The traditional Passover toast “Next year in Jerusalem” referring to the Jewish Diaspora and its hope of reunification in a better place (an idealised Jerusalem) is in one sense a declaration of a wish to live in a Jewish state around Jerusalem. When there was not a Jewish state this could not be taken as a statement of domicile. The State of Israel welcomes all Jews and each Jew recognises there is a State of Israel and has views about Israel in contrast to the way that he normally has no views about Moldavia or Mauretania. The vast majority of the world’s Jewry has made a domicile decision in that they have no intention of living in Israel.
A group of interest are the Russian Jews who are Jewish by operation of Soviet and Russian law, who inherited Jewish national status through their fathers. They were entitled to go to Israel if they could leave Russia (and Ukraine etc.). When they got to Israel as “Jews” they were expected to behave as Jews including circumcision and religious practice. Jewish religion is inherited through the mother, and so many of these individuals found they had gone from being discriminated against and arguably persecuted as Jews in Russia or Ukraine to being discriminated against and arguably persecuted as non-Jews in Israel. Their domicile is problematic. They may well have lost their domicile of origin on the first day of arriving in Israel, and then abandoned that domicile of choice within the week.
Taiwan Brits
In Taiwan there is a population of ethnic British who have lived there for so many generations that they have no claim to British citizenship. As they are not ethnic Chinese they are often not recognised as Taiwan citizens. Their domicile is Taiwan.
Nomads
There are nomadic groups who if asked would say “I live in the desert” or “I live on the Savannah” or “I live in the Arctic”. The lines that cartographers drew on maps were of no importance to the nomads. In most cases the Governments of the countries through which they roam simply ignore their legal status. Whether a nomad is domiciled in Saskatchewan or Manitoba or the Northern Territories is usually irrelevant because he has no money to tax. He is a Canadian. Where the boundaries are national boundaries, such as Saudi Arabia Kuwait or Iraq the governments usually ignore them. The nomads have no money, and their knowledge of the area is such that they could easily evade frontier guards or patrols. What is their domicile? In legal theory each of them has a domicile. At the time of their birth they had a domicile of dependency on their father. So what was father’s domicile? Well, he was born in the desert….
Even if we can find consecutive generations born in the same country, that does not mean that granddad as a nomad adopted a new domicile of choice and unless he did we are all saddled with granddad’s domicile of origin if we only knew what it was.
Refugee Camps
A person may have fled their country for some reason, ending up in a refugee camp in say Sudan. Have they a domicile of choice in Sudan? The first important question is whether they have adopted this new domicile of choice? If they have not their domicile of origin was never lost. There are various collections of people who have recognised by the United Nations as refugees and who live in camps for many years waiting for some country to take them in. Where people have fled their country and have ended up in a camp, do they at some point acquire a domicile of the state in which the camp is situate? The case of Bell v. Kennedy[1] (below) gives some guidance.
Refugee Boats
A boat may contain people fleeing oppression, be it Afghanistan or Russia or a mixture of countries. The people on the boat have made a conscious decision to abandon their homelands. Alas, no country will take them in.
Under the doctrine in Jopp v. Wood[2]
“The necessary act is that of taking up residence in some country other than the country of the domicile of origin.”
Given that they have not taken up residence in some country, have they after some period of months or years taken up residence on the boat and acquired a domicile of choice according the flag under which their boat sails? What about the harbour in which the ship is moored? The Vietnamese boat refugees fervently wished to leave Vietnam and may fervently have wished to live in Hong Kong, but their domicile probably remained Vietnam.
Difficulties of legal status
Almost all asylum seekers are by definition currently here unlawfully. At the lowest end of the spectrum is the pure asylum seeker who has made an application for political asylum and has as yet no answer. In late 2007 there were people claiming to have been waiting for a decision for 12 years. At the other end of the scale there were gentlemen like Mr Salomon and Mr Cruh. In Salomon v. Salomon[3], Mr Salomon was a South Seas Islander unlawfully in New South Wales. While on his way to be deported he had escaped and had committed rape, for which he was now in prison. His Australian wife wanted to divorce him, but because of her implied domicile of dependency on her husband she could only divorce in New South Wales if her husband was domiciled in New South Wales.
“It is a curious proposition that a Court of Justice in New South Wales should hold that a man has acquired a domicile in New South Wales when the laws of the land forbid that man to be here.” (Gordon J in Salomon v. Salomon)
This harks back to the Roman Marcellus in The Digest 50, 1, 31
“Nihil est impedimento, quo minus quis ubi velit habeat domicilium, quod ei interdictum non sit” [There is no restriction on the place where a person may have his domicilium, so long as it is not prohibited for him]
The result of the case was that as Mr Solomon never had domicile in New South Wales his wife was lumbered with his South Sea Islands domicile and could not have a divorce in New South Wales. This was followed by ex parte Donnelly[4] where it was held that having been deported and being liable to further imprisonment were he to return to South Africa, Mr Donnelly had lost his domicile of choice in South Africa. The case also confirmed that had Mr Donnelly been an illegal entrant he could not have acquired a domicile of choice in South Africa.
Cruh v Cruh[5] involved an Austrian man who served in HM Forces, was gaoled for conspiracy to commit fraud, and who was to be deported to Austria as soon as possible. This was in the early part of 1945, and there was a technical difficulty in deporting him because the German Army still occupied Austria and would not readily accept Mr Cruh. The Government was expecting victory against Germany fairly soon and would then deport Mr Cruh. The court decided that it was in the interest of Mrs Cruh, an Englishwoman, that the divorce should take place. The court found that Mr. Cruh had adopted English domicile upon coming here, and that he had not changed his domicile as his military service and imprisonment made it impossible to change his domicile. Solomon could be distinguished because Solomon had not ever changed his domicile.
One could consider the second part (below) of the Udny quotation which referred to domicile of origin
“…It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which put an end to the statis civilis of the criminal; but it cannot be destroyed by the act or will of the party.” (Lord Westbury in Udny v Udny[6])
If a domicile of origin can be extinguished by exile for life, then logically a domicile of choice can be ended by a decision to deport. However the court were minded to help Mrs. Cruh, and the England domicile of choice would of course end when the deportation actually happened.
It is arguable that the quotation in Udny is wrong – that domicile of origin is so strong that a mere death sentence or sentence of exile for life is not conclusive of abandonment. This is particularly so for refugees, because a death sentence or sentence of exile for life indicates the views of the current government, but is not at all conclusive as to the refugee’s long term intentions. Many exiled monarchs and political leaders believe they will make a triumphant return, overturning banishment, death sentences etc. Napoleon Bonaparte was exiled to Elba and made a triumphant return to France. In Lord Westbury’s lifetime was the example of the Tolpuddle Martyrs who had made a triumphant return in 1836. Lenin went from exile in Switzerland to leadership of Russia very quickly. Trotsky was in exile but was of sufficient threat to Stalin as to require being killed. Sun Yat Sen went from exile, death sentence and assassination attempts to become President of China. In modern times is the Spanish poet Marcos Ana who was sentenced to death twice under Franco and was released after 23 years imprisonment, but who never left Spain.
Illegal Status
It often happens that a person is here illegally. Does that mean they cannot have English domicile? The quotation from Salomon above suggests one answer. However there are cases that suggest that a person’s immigration status is only one factor to be taken into account. The cases of Robert Moore and Mark v. Mark are modern examples.
Use of a false identity
The refugee may (1) have used a fictional name, or (2) may have stolen an identity. Where he has used a fictional name there may be a doubt whether any findings in his favour in respect of refugee status, or a grant of settlement or of citizenship can stand. What if he has used the identity of a real person? Tohura Bibi[7] was the widow of a Mr Jabbar who had entered England illegally on a stolen voucher (what would today be called a work permit). In the fullness of time he obtained settlement and British Citizenship in the false identity. The question before the court was whether a grant of Citizenship in a false identity was void ab initio or whether it was merely voidable by the Secretary of State[8][9].
Naheed Ejaz[10] obtained British Citizenship as the wife of a British citizen. Naheed was not dishonest but her husband had obtained citizenship in a false identity. Did his citizenship void ab initio mean that her citizenship was also void[11]?
Other dishonesty
Once people are using illegality in a new country, it becomes necessary for all the paperwork for the family to mirror the new lie. If the lies are not detected there is no immediate problem, but when they are detected what are the consequences? One simple example is the “Sylheti Tax Pattern” where in the 1950s and 1960s immigrants invented wives and children to reduce income tax to tolerable levels. There was a space for a wife and 4 children on the Income Tax form, and the “pattern” was “Wife + 4 children”. When a decade later the immigrants wanted to bring their real spouses and children women of 18 had to pretend to be 30, marriage certificates and land deeds recording marriage settlements had to be backdated, and the invented children had to apply for entry clearance or die suddenly. In Pakistan and Bangladesh even honest people lied because of a belief that the Entry Clearance Officers were so clever that they would run rings around simple village women. Applicants were encouraged to trim their family trees.
Even today, a frequent complaint of asylum seekers in that Home Office or solicitors’ interpreters told them to shorten their stories or even sometimes not to tell particular stories because they will not be believed. Dishonesty then is not always symptomatic of guilt.
What’s in a name?
Confusion can also be caused by “call names” or nicknames or shortened or misspelt or anglicised versions of names. People of Asian origin born in this country or who came to this country may have several name variants running concurrently. Among the settled English community there are people who have names assigned to them by family or schoolmates who bear those names for the rest of their lives. An amusing example is that Elton John had to accept his knighthood in his true identity as Sir Reginald Dwight.
Documentation problems
Official documents from the home country may be forged, irregular, or contain errors. Official documents from this country are only as good as the documents upon which they are based. The doctor’s receptionist who assumes that Mr Shah’s wife and children all have or should have the surname Shah is an innocent example.
In many countries births were not registered, and so 1st January has become enormously common as a date of birth. In some countries it is seen as a sign of loyalty to declare your birthday to be the same as the President so you can celebrate together.
More Documentation problems
My generation grew up with people of our own age risking their lives and sometimes being killed fleeing East Germany Poland and Czechoslovakia. When I was a schoolboy and student people like me crawled through barbed wire and ran through minefields while being shot at with machine guns. When they got to safety the officials did not say
“You do not have an identity card or passport – you will have to go back for it.”
The Refugee Convention (Article 27) says
“Identity papers
The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.”
By contrast the British Government has passed legislation saying that the absence of adequate identification is to be taken as evidence of the claim being false[12].
In countries where there is no culture of registering births or deaths, registration is often delayed. It is not unusual that births are only registered when necessary for official purposes such as obtaining passports. A refugee may therefore provide a clutch of birth certificates for his 4 teenage children where all the births were registered only this year. How valuable are these as documents? How valuable are the passports based upon the birth certificates for the purpose of establishing age? By contrast family record books as used in Japan[13] or nendra books as used in Pakistan to record the gifts given at family weddings or contemporaneous school and Army[14] records may be hugely useful.
Appalling facts
The legal problems were sharply considered in Szechter (Orse, Karsov) v. Szechter[15] by Sir Jocelyn Simon of the Divisional Court
“It would be affectation to pretend that any judge could listen to the evidence given in this case unmoved by the courage and generosity of the persons principally concerned or by the horror of the circumstances (though I appreciate that I have heard only one side and that few, if any, peoples can claim to have been entirely and at all times innocent of inhumanity or tyranny). But part of the comparative felicity which we have enjoyed in this country has been because we have lived under the rule of law. And not only does law, as Burke said, stand in dreadful enmity to arbitrary power, the rule of law, as Dicey pointed out, stands in contradistinction to (among other things) wide discretionary authority.
There is obviously a temptation for a court, faced with a situation of hardship brought about by heroism in the teeth of cruelty and oppression, to try if necessary to stretch the law a little here or a little there……… But it is not open to a court of law to deal out what is sometimes called “palm tree justice”.
“The story which has been unfolded in this court is so extraordinary as to be liable to strain credence, were it not that Nina and the respondent, who were its main narrators, were in their different ways as impressive witnesses as I have ever had before me.”
The domicile aspect of the case was that the couple were in the UK on time limited leave. Further stay was dependant upon the Home Office allowing them to stay. The case was decided in their favour as they had the clear intention to remain in the United Kingdom and there was no sign that the British Government would not let them.
The story is of heroism and decency in appalling circumstances.
Torturers
People who have committed torture may seek asylum, and in some cases may be granted political asylum. There may then be requests for extradition or even civil actions for damages or attempts to enforce such judgements. What is the domicile of a person whilst extradition proceedings are running?
Perpetuities and anomalies
If in English law we recognise a will prepared in the person’s “home” country, but if the will contains elements we do not recognise such as creating perpetuities or passing on of perpetuities, how do we deal with the problem?
If domiciled in a country where you are an “enemy of the state” or your property has been sequestrated, and the law of that country requires you to register a will or a marriage or a divorce in person, it is possible that the current country of residence will not allow you to have a lawful ceremony in its country because you are not domiciled there, but if you do the action where you are resident you cannot register it in your home country. Is your action invalid for want of registration? How can you validly do what you want to do?
In the Loustalan case, France and England had different concepts of domicile, which caused no end of difficulties!
Similar problems arise if your country is at war and you are a refugee.
[1] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[2] Jopp v. Wood (1865) 4 De G.J. & Sm. 616
[3] Solomon v. Salomon (1912) 29 WN (NSW) 68
[4] Ex parte Donnelly 1915 WLD 29
[5] Cruh v. Cruh [1945] 2 All ER 545
[6] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441 at 457-458
[7] Tohura Bibi v. Entry Clearance Officer Dhaka [2007] EWCA Civ 740
[8] Following decided cases R. v. SSHD ex p. Sultan Mahmood [1981] QB 59, R. v. SSHD ex p. Parvaz Akhtar [1981] QB 46 the application in a stolen identity was void ab initio.
[9] The Tohura Bibi case may be flawed in fact as well as principle. The Court of Appeal assumed as fact that the work permit issued in the name Abdul Sattar existed for a real person called Abdul Sattar. In the 1960s an employer desperate for labour might ask an existing worker to recruit for the employer in his home village. Vouchers would be obtained in the names listed by the worker, who often were fellow villagers but were sometimes invented. There may never have been a real Abdul Sattar. It would however be unreasonable to put the Home Office to proof of the existence or non existence of a person 40 years ago. The reason for suggesting that the case is flawed in principle is that the real Abdul Sattar (if he existed) never came to the United Kingdom and so was not known to the Home Office. It is the person known to the Home Office as Abdul Sattar who applied for citizenship. Although in Tohura Bibi the Court of Appeal referred to Abdul Mannan [1971] 1WLR 859 the Court of Appeal appears not to have considered that in Mark v. Mark [2005] UKHL 42 the House of Lords refused to follow Abdul Mannan. The nonsensical position, if both cases are correct, is that Mrs Mark is not “legally ordinarily resident” in England but has domicile here.
[10] R. v. SSHD ex p. Naheed Ejaz [1994] QB 496
[11] No.
[12] Asylum and Immigration (Treatment of Claimants) Act 2004 s8
[13] H. v H. (Queens Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
[14] At one time Army pay was in part related to family size, so new spouses and children were entered on the Army records on marriage or at birth.
[15] Szechter (Orse, Karsov) v. Szechter [1971] 1 P 286 at 289
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