Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08058/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision and Reasons Promulgated
On 8 August 2016
On 10 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

M. R.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE
Respondent

Representation:
For the Appellant: Mr Constable, Counsel, instructed by JD Spicer Zeb Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant claimed asylum in the UK on 21 November 2014, and said that he had entered the UK illegally earlier that day. His claim was based upon his assertion that he was a citizen of Eritrea, and as such faced a real risk of harm upon removal from the UK to that country.
2. Although the Respondent accepted that the Appellant was a citizen of Eritrea, his asylum application was refused on 5 May 2015, and a decision was made to remove him from the UK in consequence. The Appellant duly appealed that immigration decision and his appeal was in due course heard by First Tier Tribunal Judge Fisher. The appeal was dismissed in a decision promulgated on 10 February 2015 in the course of which his account of his experiences in Eritrea was rejected as untrue.
3. The Appellant lodged an application with the First Tier Tribunal for permission to appeal. The application was refused by Judge Cruthers on 15 March 2016 on the basis that it was no more than a disagreement with the Judge's findings and identified no arguable material error of law. Undaunted the Appellant renewed the application to the Upper Tribunal, asserting that in finding that he was not satisfied the Appellant had left Eritrea illegally, the Judge had failed to follow the guidance to be found in MO (illegal exit - risk on return) Eritrea CG [2011] UKUT 190. That application was granted by Upper Tribunal Judge Bruce on 12 April 2016.
4. The Respondent filed a Rule 24 response on 3 May 2016. She pointed out that the Judge's adverse credibility findings were unchallenged, and that it was therefore open to the Judge to conclude as he had (after referring himself to the guidance in MO) that the Appellant had not established that he left Eritrea illegally.
5. The Appellant made no application pursuant to Rule 15(2A) of the Upper Tribunal Procedure Rules.
6. Thus the matter came before me.

Error of law?
7. On behalf of the Appellant Mr Constable accepted that in order for the Appellant to have left Eritrea legally he must have been issued with a legitimate exit visa, which would also require him to have been issued with a legitimate Eritrean passport in order for that visa to be entered into it. He also accepted that such documents were issued, albeit rarely, and that if they were issued that there would be likely to be a record of the issue of such documents that was held by the Eritrean authorities.
8. I would add, that if, which the Appellant denied, such documents had been issued to him, there is no reason for the Tribunal to assume in his favour that they have subsequently been lost, or have been destroyed by him. However, even if such documents were lost or destroyed the Appellant and his family would be in a position to give details of when they had been issued to him, the office from which they had been issued, and in the case of an exit visa the basis upon which it had been issued.
9. Mr Constable accepted that the Appellant's challenge to the Judge's decision, upon which permission had been granted, did not extent to any of the adverse credibility findings concerning the evidence that the Appellant had relied upon. His evidence concerning his experiences in Eritrea was roundly rejected, and those conclusions were entirely properly reasoned and open to the Judge upon the evidence, after his application of the correct burden and standard of proof. There is nothing in the decision to suggest that the Judge accepted either his claim as to when, or how, he had left Eritrea, and it is plain that he did not.
10. The argument that Mr Constable advanced was an extremely narrow one; namely to rely simply upon paragraph (v) of the headnote to MO and to argue that this meant that all of those returned to Eritrea faced a real risk of being perceived as having left Eritrea illegally, and thus all returnees to Eritrea faced persecution, however they had in fact left. Such a bald proposition is in my judgement logically quite unsustainable, and moreover it is clearly at odds with the expert evidence that was before the Upper Tribunal in MO. Nor was the Judge required to identify the basis upon which the Appellant had left Eritrea legitimately and to make a positive finding as to the basis upon which an exit visa had been issued to him. It was enough in the circumstances for the Judge to conclude that he was not satisfied that the Appellant was telling the truth when he claimed to have left illegally, having taken into account the fact that the vast majority of those departing Eritrea did so illegally; MA (Eritrea) [2014] EWCA Civ 1608. This was not a case in which the Appellant must have left illegally, whatever the truth of the rest of his account of his experiences.
11. In the circumstances, and notwithstanding the terms in which permission to appeal was granted, the grounds disclose no arguable error of law in the Judge's approach to the evidence. The Appellant has therefore failed to establish that there was any error of law that requires the decision to be set aside and remade. The decision to dismiss the appeal is therefore confirmed.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 10 February 2016 did not involve the making of an error of law in the decision to dismiss the appeal that requires that decision to be set aside and remade. The decision to dismiss the appeal is accordingly confirmed.

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008

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

Deputy Upper Tribunal Judge JM Holmes
Dated 9 August 2016