Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03929/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 15th September 2016
On 12th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

ms T G K
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Sharif (Solicitor)
For the Respondent: Ms H Aboni (HOPO)

DECISION AND REASONS

1. The Appellant, is a female, a citizen of Ethiopia, who was born on 19th June 1984. She appeals to the First-tier Tribunal against the decision of the Respondent Secretary of State dated 27th February 2015 rejecting an application for asylum under the United Kingdom's obligations under the Refugee Convention and the European Convention on Human Rights.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Colyer and promulgated in a decision on 27th October 2015. In the determination, the judge observed how the Appellant, of Oromo ethnicity, had attended some OLF meetings in the UK (paragraph 32). The Appellant had returned to her own country in 2012 and the judge held that there could be no credible fear of persecution in Ethiopia (paragraph 51). The more important issue was the Appellant's OLF participation. The judge observed that whatever activities the Appellant had been involved in in the United Kingdom was in stark contrast to a lack of participation in OLF activities in Ethiopia (paragraph 77). She had also not been involved in any politically significant way (paragraph 78). In fact,
"The Appellant has only relatively recently become an OLF member. I follow the country guidance case and find that even if she were perceived by the Ethiopian authorities to be such a member or sympathiser she will not in general be at real risk for she has not been previously arrested or detained on suspicion of OLF involvement",
according to the judge (at paragraph 81).
3. The appeal was dismissed.
4. On 14th December 2015, the Upper Tribunal granted the Appellant permission to appeal on the basis that there had been a failure to take into account important country guidance case, namely, MB (OLF and MTA - risk) Ethiopia CG [2007] UKAIT 00030.
5. At the hearing before me on 15th September 2016, the Appellant was represented by Mr Sharif, a solicitor, and the Respondent was represented by Ms H Aboni, a Senior Home Office Presenting Officer. Mr Sharif handed up a handwritten letter from the Birmingham Women's NHS Trust Hospital in Edgbaston, dated 14th September 2016, confirming that the Appellant,
"Had a baby girl by caesarean section on 31st August 2016 and the baby is premature at thirteen weeks due to growth restriction in utero. The baby is currently on the neonatal unit at Birmingham Women's Hospital where Kidist delivered. Baby is currently in the incubator on oxygen as unable to breathe on her own ?"
6. Also handed up was a letter from Dr Clare Marsh, from Obstetrics and Gynaecology Department, addressed to the Secretary of State and confirming that the Appellant, at the time 30 weeks pregnant, had been HIV diagnosed in Ethiopia in her teens, and started on antiretroviral drugs in Italy in 2004 and that, "her monitoring has demonstrated adequate forward growth but the baby remains well below the tenth centile which is small". Subject to this new piece of information, Mr Sharif began by making his submissions. He relied upon the grounds of application.
7. First, the Appellant was returning back to Ethiopia as a "single lone female", and had been previously raped, and there was a failure to take into account the fact that the Appellant was returning as a single lone female. She would have been a member of a particular social group and was at particular persecutory risk on this account.
8. Second, there was a failure to give adequate reasons because the judge said (at paragraph 34) that,
"Having considered the Appellant's documentary and oral evidence I come to the same conclusion as the Respondent and for the same reasons. I endorse and adopt paragraphs (16) and (17) quoted above as part of my findings."
The judge should have made her own findings in this respect and not adopted those in the refusal letter.
9. Third, the judge failed to consider the risk on return as a failed asylum seeker. This was important because the judge had observed (at paragraphs 31 and 45) that the Appellant had been granted humanitarian protection previously in Italy. The judge had also observed that there was a claim for humanitarian protection by the Appellant (at paragraphs 95 to 96). It had been noted by the judge (at paragraph 96) that, "in view of my findings of credibility and facts as outlined above I find the Appellant has failed to establish to the required standard that she is eligible for protection under the Qualification Regulations". However, this could not be right because if the Appellant had previously been granted humanitarian protection in Italy then the judge failed to give adequate reasons as to why the Appellant would not now be at real risk of indiscriminate violence due to her particular circumstances if she were returned alone to Ethiopia.
10. Fourth, the judge failed to apply paragraph 276ADE in that it was clear that the Appellant would face "very significant obstacles" to her reintegration if she returned to Ethiopia in the light of her accepted "sur place" involvement with the OLF. Finally, the judge gave inadequate consideration to the fact that the Appellant was HIV positive when holding that the Appellant would not have access in Ethiopia to medication which may be appropriate for her (at paragraph 106), because in this event, and given this finding, the appeal should have been allowed on the basis of Article 3.
11. For her part, Ms Aboni referred to the Rule 24 response by the Secretary of State and submitted that there was no error of law and this was simply a disagreement with the findings of the judge. First, the judge did consider whether the Appellant was at risk for attending OLF meetings in the UK and this is clear at paragraphs 77 to 78. Second, the background evidence does not show that the Appellant is at risk on return. The case of MB [2007] UKAIT 00030 is quite old, being a 2007 decision, but it still makes clear that one is only at risk if one has a sufficiently high profile such that one would come to the attention of the authorities. Third, the suggestion that the Appellant had been raped in Libya was never raised before the judge as a Ground of Appeal. Fourth, there is no indication that the Appellant did not have a fair hearing and so there could have been no procedural error. Finally, there would be no risk of persecution as a single lone female. The judge did consider the Appellant's circumstances (at paragraph 87). Moreover the judge held (at paragraph 105) that if the Appellant does not want to return to Ethiopia she can return to the place where she has been granted leave to remain, namely, to Italy. It is not clear why the Italian authorities gave the Appellant leave to remain (see paragraph 45) and it cannot be assumed that there was a compelling reason for this. Finally, in relation to her medical treatment the judge accepts (at paragraph 106) that the Appellant may not get prescribed treatment in her own country but there was suitable medical treatment (see paragraph 104). New evidence in the form of the birth of a premature baby who is in an oxygen incubator is not relevant because these were not matters before the judge at the time.
12. In reply Mr Sharif submitted that the judge had accepted (at paragraph 78) that the Appellant had been involved in some form of political activity. That said, whilst it was the case that MB [2007] UKAIT 00030 is old authority, the operational guidance for 2013 states (at paragraph 3.15.16) that the Appellant would be at risk simply by being a member of the OLF. Secondly, the Appellant is a vulnerable woman, not only because she has been raped previously, but because she will be returning as a single lone woman (and now possibly with her child).
My Consideration of the Appeal
13. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. This is a case where the Appellant's OLF activities are accepted by the judge in the United Kingdom (see paragraph 77). What the judge concludes, however, is that "the Appellant's recent participation in some OLF activities is not politically significant". The judge observed that, "she has attended a few meetings and conferences" and that "her profile would be very low". It is true that the case of MB [2007] UKAIT 00030 required a person to have some profile in order to attract the risk of persecution.
14. However, the Operational Guidance Note (Ethiopia) (November 2013) makes it clear that, "the available evidence also suggests that perceived members or sympathisers of the OLF or ONLF are likely to be targeted and should they come to the attention of the authorities, are likely to be at risk of persecution" (paragraph 3.15.16). There has been inadequate consideration of this operational guidance and it is not enough to say that the Ethiopian authorities "would most probably view such actions as a cynical attempt to enhance a very poor asylum claim in the United Kingdom in order to remain here" (paragraph 78).
15. Second, whereas the judge gives consideration to "prospects on return to Ethiopia" (at paragraphs 83 to 88) there has been insufficient consideration given to the Appellant's return in the context of her arrival there as a single lone woman, who has previously been subject to sexual violence.
16. Under Practice Statement 7.2(b) I conclude that the nature or extent of any judicial fact-finding which is necessary in order for a decision in the appeal to be remade is such that it is appropriate to remit the case to the First-tier Tribunal, to be determined by a judge other than Judge Colyer. Another judge may well come to the same conclusions but the appropriate guidelines will need to be followed, such as the operational guidelines, and applied to the factual findings that are reached.
Notice of Decision
17. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal to be determined by a judge other than Judge Colyer.
18. An anonymity direction is made.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Juss 12th October 2016