The decision

DF (No legitimate expectation – ELR mistake) Ethiopia [2004] UKIAT 00157


Date of Hearing : 6 May 2002
Date Determination notified:
15 June 2004


Dr H H Storey (Vice President)
Mr H J E Latter (Vice President)
Mr G H Getlevog



Secretary of State for the Home Department

Mr B.T. Davis of Counsel instructed by H.C.L. Hanne & Co. Solicitors for the appellant. Mr J. Morris for the respondent.


1. The appellant, who claimed to be a national of Ethiopia, appeals against a determination of Adjudicator, Miss Fiona E. Barrie, dismissing his appeal against the decision refusing leave to enter on asylum grounds. Removal directions were set for Eritrea.

2. The Adjudicator did not accept that the appellant or his mother had experienced persecution when in Ethiopia. Nor did he accept that the appellant was an Ethiopian national as claimed. In light of the appellant's own evidence that his father was of Eritrean origin and (having been deported from Ethiopia) was now a resident of Eritrea, the Adjudicator concluded that the appellant was a national of Eritrea. He then considered the appellant's claim that he feared persecution if removed to Eritrea but rejected it.

3. In relation to Article 3 he did not consider the medical evidence established that the appellant suffered from severe depression. He further found that since in Eritrea there were psychiatric facilities albeit limited, there was no question of the appellant being able to show return there would violate his Article 3 rights.

4. In relation to Article 8, the Adjudicator accepted that the appellant had established a private and family life in the UK and that the decision requiring him to return to Eritrea would constitute an interference with his right to a private life. However, he considered it was a proportionate interference.

5. The grounds of appeal were twofold. They contended that the Adjudicator has failed to give anxious scrutiny to the asylum grounds of appeal. But principally they contended that the Adjudicator failed to take into account when considering the proportionality of the decision to remove him in Article 8 terms that the appellant had a legitimate expectation that he could remain in the country when he entered into a relationship with the woman who is now his wife.

6. We consider the asylum grounds of appeal extremely weak. It is true that the Adjudicator erred in stating that the appellant had not produced “any evidence” that he was a national of Ethiopia. The appellant had produced documents showing he attended school in Ethiopia and photographs of himself in Ethiopian national costume. However, given that the appellant had not produced an Ethiopian passport and had failed to give a credible account of his experiences in Ethiopia, we consider it was open to the Adjudicator to find that the appellant had not discharged the burden of proof on him to show he was a national of Ethiopia.

7. We do not consider that when finding that the appellant had failed to show he had experienced any past persecution in Ethiopia the Adjudicator meant to assert a general (erroneous) principal that in order to engage the Refugee Convention one always has to show past persecution. He was simply making clear that the claimant had failed to establish material aspects of his claim. Whatever the reason for the appellant's mother not being deported (it may well have been because she was a national of Ethiopia), the Adjudicator was quite entitled to conclude that the appellant had failed to give a credible account of his mother being targeted by the Ethiopian authorities. The appellant's account in this respect was correctly assessed as being vague and lacking in detail.

8. In any event the removal directions set in this case were for Eritrea and thus the appellant could not succeed in his appeal under s.69(1) unless she could establish that removal to Eritrea in consequence of the decision refusing him leave to enter would expose him to a real risk of serious harm in that country.

9. The grounds sought to argue that the Adjudicator erred in concluding that the appellant was a national of Eritrea for Refugee Convention purposes. However, Mr Davis rightly acknowledged at the hearing that this argument lacked merit. The Adjudicator properly applied the approach set out by the Tribunal in [2003] UKIAT L (Ethiopia) 00016. Given that the appellant's father was of Eritrean origin and now resided in Eritrea, the appellant stood to acquire Eritrean nationality upon application and there was no valid reason for considering he could not find three suitable witnesses to support his application.

10. Mr Davis did not actively seek to pursue any argument to the effect that return to Eritrea would expose the appellant to a real risk of serious harm. In any event, on the objective evidence available to the Adjudicator, we consider he was quite entitled to find that the Eritrean authorities would have no adverse interest in him and at most might at some stage require him to perform military service. By reference to the Court of Appeal judgment in Sepet and Bulbul as upheld by the House of Lords in their judgment reported at [2003] 1 WLR 856; [2003] ImmAR 428, the Adjudicator correctly concluded that the appellant's conscientious objection to having to perform military service (when ordered) could afford no proper basis for a claim to refugee status.

11. Accordingly we consider the Adjudicator gave valid reasons for dismissing the appellant's asylum grounds of appeal, as well as the Article 3 grounds of appeal.

12. That leaves the appellant's Article 8 grounds.

13. The principal thrust of Mr Davis’s submissions was that the Adjudicator failed to take into account that the appellant had a legitimate expectation that he would be granted leave to enter. Such an expectation arose, he argued, from the sending of a letter to the appellant on 21 March 2000, informing him that he had been granted four years’ exceptional leave to remain until 21 March 2004. The fact that on 17 October 2000 the Home Office had written stating that the letter was not meant for the appellant but for someone else, did not alter the fact, he argued, that the original letter had created a legitimate expectation. Mr Davis relied on the case of R (Admin) v SSHD [2003] EWHC 2384 (Admin) in which it was held that if the Home Office sent a letter purporting to grant four years leave to remain, they may be bound by such a decision.
14. We are unable to agree with Mr Davis that the letter of 21 March 2000 created a legitimate expectation that the appellant had been granted ELR. In the first place, although the letter did cite the appellant's Home Office reference number and was addressed to the appellant's (then) solicitors, it bore the subheading:

“Re: Daniel Fisahaye, Ethiopian, Date of Birth 21/7/85.’

15. That was a subheading, which did not clearly or properly identify the appellant either in respect of the spelling of his name (Daniel Fessehaye) or in respect of his date of birth (2/6/1974).

16. Secondly, the appellant himself clearly did not assume the letter was in fact intended for him. So much is clear from the (new) solicitor’s letter of 17 August 2003. This referred to the appellant having “apparently” been granted ELR and states in its relevant parts:

“Our Client was concerned that the date of birth given on the documents was incorrect, and there was also a slightly different spelling of his name, but our client is aware that in the translation of names from Amharic to English, there was a variety of spellings ...

... he is unable to find out from your telephone enquiries system exactly what is happening.

Our Client has recently learnt that there is another Daniel Fessaheye, an Ethiopian national who has also claimed asylum, whose date of birth is 21 July 1985, apparently a minor, if that date of birth is correct. He is now even more worried that he may have received the papers for another applicant. (emphasis added)”

17. This letter makes perfectly plain that as a result of the earlier letter the appellant had never formed any clear expectation that he had been granted ELR. At best he harboured hopes and doubts at the same time. Furthermore, he had never sought to act upon the letter of 21 March 2000 in any way so as to suggest he believed he had leave.

18. Mr Davis also sought to maintain that the appellant's solicitors had been told by the Immigration Service at Heathrow Terminal 3 on 6 February 2001 that the appellant had ELR. However, by this time the appellant had had not one, but two, letters from the Home Office confirming that the grant of ELR had been made in respect of another outstanding: the second letter, dated 9 July 2001, specifically confirmed what was said in the first letter, dated 17 October 2000. In such circumstances, even if the Immigration Service, several months later had said something to suggest the appellant had been landed with ELR, there was no evidence that this had ever been confirmed in writing.

19. In the third place, Mr Davis is quite wrong to represent that the appellant had a legitimate expectation that he could remain in the country when he entered into his relationship with his new wife. On the appellant's own account he only met his wife in December 2001. That was over twelve months after he had been told very plainly that the original letter granting ELR was in respect of another applicant.

20. Even if we considered that some weight in favour of the appellant should be attached to the fact that the Home Office mishandled the appellant's claim during the period from March-October 2000, we fail to see that this resulted in any disproportionate interference with his right to respect for private and family life. The appellant did not maintain that during this period he had a close private life or family life relationship which could have been pursued differently had he possessed limited leave at the time (e.g. by making an in-country application as a fiancé or spouse). In short, he did not produce evidence of suffering any detriment to any protected Article 8 right during the relevant period.

21. Accordingly, we see no relevance to this case of the principles set out in Shala [2003] EWCA, Civ 2333; [2003] All ER 407.

22. As regards the Adjudicator's treatment of the Article 8 grounds of appeal otherwise, we consider he was quite entitled to conclude that the appellant had failed to demonstrate that the decision to remove him was unlawful or disproportionate. The appellant's wife had been granted refugee status in relation to Ethiopia, not Eritrea, so it cannot be said that the grant of refugee status to her ipso facto precluded return to Eritrea. The fact that she herself may not be able to obtain Eritrean nationality was not determinative of her ability to accompany her husband to Eritrea in her capacity as his wife. However, even if it were accepted that the Adjudicator was wrong to find that the appellant's wife and children could accompany him to Eritrea, it is clear from Mahmood [2001] INLR and Ekinci [2003] EWCA Civ 765 that an appellant can be expected to pursue the option of applying from abroad for entry clearance unless he can show the existence of exceptional circumstances. In our view, none of the points raise in the written grounds or in Mr Davis’s submissions identified any exceptional circumstances in this case.

23. For the above reasons this appeal is dismissed.