AA/08300/2015

• Status of case: Unreported
• Hearing date: 4 Oct 2016
• Promulgation date: 4 Oct 2016
• Publication date: 25 Jul 2018
• Last updated on: 25 Jul 2018

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08300/2015


THE IMMIGRATION ACTS


Heard at Manchester
Decision & Reasons Promulgated
On 4th October 2016
On 4th October 2016




Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MR DAGNEW [S]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:

For the Appellant: Not represented
For the Respondent: Mrs R Pettersen (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Appellant in relation to a Decision and Reasons of the First-tier Tribunal (Judge Kelly) promulgated on 14th June 2016 by which he dismissed the Appellant's asylum appeal.

2. The Appellant claimed to be a citizen of Eritrea born on 1st September 1990. He entered the UK, clandestinely on 14th November 2014 and claimed asylum three days later.

3. The Secretary of State refused the Appellant's claim on the basis that she did not accept that he was an Eritrean national and asserted that he was in truth an Ethiopian national.

4. The Appellant claimed to have been born in Assab in Eritrea. His parents, he claimed, had been soldiers of the Dergue regime who fought against Eritrean independence from Ethiopia. They remained in Eritrea following independence in 1993, earning their living as small traders. The Appellant never attended school.

5. He claimed that in 2000 his parents were called to a meeting with a government official in Asmara where they were arrested and killed. Following that incident, his aunt sent him immediately to Sudan. He was aged 11. In Sudan he lived with a female Eritrean national until 2014 when he left for Libya. The Eritrean lady fed and clothed him in exchange for him looking after her children while she worked.

6. During his time in Sudan he met and married an Ethiopian national.

7. In June 2014 the Appellant left for Libya, helped by an agent and crossed into Italy where he says he tried to claim asylum. However, as nothing happened he travelled on to Paris by train and from there to Calais where he secreted himself in a lorry and entered the UK.

8. The Appellant claimed to be at risk from the Eritrean authorities because his parents were Dergue fighters.

9. The Secretary of State noted that at his screening interview the Appellant claimed to speak Tigrinyan and Amharic, but later claimed to speak only Arabic and Amharic. The Secretary of State noted that he had limited local knowledge about Eritrea. Furthermore, the Secretary of State noted that the Dergue was an Ethiopian army whose rule had come to an end by the mid 1990s. This also suggested to the Secretary of State that in truth the Appellant's parents, and therefore he, were Ethiopian. The Secretary of State did not accept that such persons would have remained in Eritrea following independence in 1993 where they would clearly have been at risk of persecution.

10. In his Decision and Reasons Judge Kelly noted that he had been provided with a bundle of documents from the Respondent and that he heard oral evidence from the Appellant's using an Amharic interpreter.

11. At paragraph 24 the Judge's findings commence with a consideration of whether the Secretary of State had established that the Appellant was a national of Ethiopia. He concluded that she had not. He did not find the evidence of language to be sufficiently compelling to establish that fact and he did not agree that the information given about Eritrea by the Appellant was anything other than consistent with the background information.

12. The Judge went on to find it damaging to the Appellant's overall credibility that he failed to claim asylum in either Italy or France and did not accept his explanation for leaving those countries in order to pursue a claim in the UK.

13. The Judge also found that he had provided no credible explanation as to why he had felt the need to leave Sudan which had been his home for 10 years where he had lived a settled existence with a wife who had a good business.

14. The Judge did not accept the Appellant's explanation for stating, at his screening interview, that he spoke Tigrinya as he found that at that time he was represented and his representatives would have corrected any error.

15. The Judge found that it was not credible that the Appellant was unable to speak Tigrinya if he had been brought up by Tigrinya speaking parents until the age of 10 years.

16. At paragraph 31 the Judge considered the evidence in the round. While he had not found that the Appellant was a national of Ethiopia he was not satisfied that the Appellant had established, even to the low standard of proof that he was a national of Eritrea and as such his claim could not succeed.

17. Permission to appeal was granted by a Judge of the First-tier Tribunal who felt that the Judge had not made appropriate findings on all issues.

18. However, while the burden of proof is on Secretary of State if she asserts the Appellant to be a different nationality than claimed, the overall burden of proof remains on the Appellant to establish his claim for asylum, albeit to a low standard of proof. He must establish that he is a refugee and to establish that he is a refugee he must establish that he is outside his country of nationality due to a well founded fear of persecution for a Convention reason.

19. The Judge found that he had not established that he was a national of Eritrea and therefore could not pass the first hurdle of what was required.

20. The Appellant pointed out that there was a document that he had provided to the First-tier Tribunal that the Judge had not taken into account, which he said proved that he was Eritrean. That document is a letter from the Eritrean community in Lambeth in London. It is a letter dated 24th March 2016 which suggests that the Appellant is a member of their community and an Eritrean national who has been a member of the community since June 2015.

21. Mrs Petterson argued that that letter was inadequate to establish nationality and I agree with her. Firstly, the Eritrean community in Lambeth is in London and the Appellant has always been resident in Liverpool. The letter is vague in the extreme as to how they established with certainty that the Appellant is a national of Eritrea as they assert. In particular, I note that the letter says that the Appellant is an extremely good member of the community and is dedicated to assist people in the community. He is a very benevolent youth member of the community and always dedicated to it. Given that he does not even live in London I find that a strange assertion for the community to be able to make. The letter is highly unsatisfactory as to its methods for confirming nationality and is overall, I find, wholly inadequate in terms of establishing nationality, particularly given the adverse matters indicating otherwise.

22. Accordingly, while the Judge ought to have considered and made a specific finding with regard to that letter, I find it cannot upset the overall credibility findings in relation to nationality which are all soundly based on the evidence. It is not sufficient to upset all of the other adverse matters.

23. I therefore find the First-tier Tribunal did not make a material error of law and the Decision and Reasons shall stand.

24. The Appellant's appeal to the Upper Tribunal is dismissed.

25. There was no application for an anonymity direction and I see no justification for making one.




Signed Date 4th October 2016


Upper Tribunal Judge Martin