Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09046/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 26 October 2016
On 20 December 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

Mr Yidnekchew [K]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Johnrose, instructed by Broudie Jackson Canter
For the Respondent: Mr A McVeety, Senior Presenting Officer

DECISION AND REASONS
Introduction
1. It is the appellant's case that he is an Eritrean national born on 2 January 1990, who is at risk of being persecuted if returned to Eritrea.
2. He arrived in the United Kingdom on 6 December 2014 and made an asylum claim on the same date. This application was refused in a decision of 28 May 2015. Under the heading "Nationality" the Secretary of State concluded the appellant to be a national of Ethiopia.
3. The appellant appealed this decision to the First-tier Tribunal. The appeal came before First-tier Tribunal Judge Nicol on 4 February 2016 and was dismissed in a decision promulgated on 19 February 2016. Broadly speaking the First-tier Tribunal rejected the truth of the appellant's evidence and, in particular, his assertion not to be Ethiopian.
4. Permission to appeal was subsequently granted, and the appeal first came before me on 26 July 2016 at which time I set the FtT's decision aside for the following reasons:
7. One of the core issues that required determination by the FtT was the issue of the appellant's nationality i.e. whether he is of Ethiopian nationality, Eritrean nationality or both. The appellant asserts he is not of Ethiopian nationality. The burden is on the appellant to establish this fact and there is plainly an obligation on him to take reasonable steps to do so. The extent of the appellant's endeavours in this regard is of undoubted relevance to the Tribunal's determination of the issue.
8. In the instant case the willingness of the appellant to engage with the Ethiopian embassy in his attempts to prove he is not an Ethiopian national are of direct relevance to the weight that can be attached to the aforementioned evidence provided by the Ethiopian embassy. The First-tier Tribunal proceeded at [66] on the basis that the appellant was an unwilling applicant in this regard.
9. However, an analysis of the First-tier's decision discloses no other rationale for this conclusion other than the fact that it was not in the appellant's interests to cooperate with the embassy, given his assertion that he is not Ethiopian.
10. It was said by Ms Johnrose, who also represented the appellant before the First-tier Tribunal, that the Secretary of State undertook detailed cross-examination before the First-tier Tribunal as to the events which took place at the embassy. The First-tier Tribunal's record of the proceedings confirms that numerous questions were asked, and answers given, by the appellant in this regard.
11. Nowhere in the First-tier Tribunal's decision is this exchange set out or even alluded to, and there are no conclusions reached as to the truth of the appellant's evidence on such matters. Significantly, if credible, the evidence given on this issue is of undoubted relevance to the assessment of whether the appellant was 'willing' in his dealings with the Ethiopian embassy.
12. In my conclusion given the obvious relevance of the document from the Ethiopian embassy to the issue of the appellant's nationality, an analysis of the information upon which that document was produced and the willingness of the appellant to engage in the process leading to the conclusions therein, was essential. The First-tier Tribunal's decision does not demonstrate the rigour of analysis required in this regard.
13. I find such failure to constitute an error of law capable of affecting the outcome of the appeal. As a consequence, I set aside the First-tier Tribunal's decision.
Remaking of Decision
5. At the outset Mr McVeety helpfully accepted, on behalf of the Secretary of State, that if the Tribunal were to find that the appellant had established that he is not an Ethiopian national then it ought to go on and: (i) accept that he is an Eritrean national; and, (ii) allow the appellant's appeal on Refugee Convention grounds, in light of the recent country guidance decision of Eritrea (MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 00443 (IAC))
6. He submitted, however, that the appellant had not established himself to be a national of Eritrea and that he could be safely returned to Ethiopia, as a national of that country.
Burden and Standard of proof
7. It is uncontroversial that the burden of proof rests on the appellant and that the applicable standard of proof is a low one - i.e. is there a real risk that the appellant would suffer treatment amounting to persecution (or treatment of such severity so as to lead to a breach of Article 3) in the country of his nationality, to where he will be returned.
Discussion
5. The Upper Tribunal has recently had occasion to consider a case, such as the instant one, in which the appellant asserted himself to be of Eritrean nationality but where the Secretary of State found him to be Ethiopian (MW (Nationality; Art 4 QD; duty to substantiate) [2016] UKUT 453). The head note to MW reads:
1. Article 4(1) of the Qualification Directive does not impose a shared duty of cooperation on the Member State to substantiate an applicant's nationality.
2. Article 4(2) refers to documentation (including documentation regarding nationality(ies)) "at the applicant's disposal" - which must include documentation which is not in the applicant's present possession but is within his or her power to obtain.
3. The terms of Article 4(3) are consistent with the position that an applicant who denies he is a national of a country where he could obtain protection can be expected to take reasonable steps to establish that he is not such a national.
6. In the instant case the appellant asserts that he has taken all reasonable steps to establish that he is not a national of Ethiopia by approaching the Ethiopian embassy. A document was subsequently produced by an embassy official stating that the appellant is not a national of Ethiopia. Such document, dated 17 November 2015, is signed by a Mr Tesfay - who is identified as being the Head of Consular Section. It bears a stamp reading: "Republic of Ethiopia Consular Section", and states:
"Dear Sir/Madam
We are writing this letter to confirm that Mr Yidnekchew [K] has come to visit us at the Ethiopian Embassy on 17 July and on 5 October 2015 with independent witness about his entitlement to Ethiopian citizenship.
According to the interviews that we held with him he does not fulfil the criteria of Ethiopian citizenship. The following points made us to convince that he is not Ethiopian citizen.
1. We are unable to find a concrete documentary evidence to show us he is Ethiopian national.
2. He has not provided or adduced any documentary evidence that makes us believe that he is Ethiopian e.g. his family's residential identity card or the identity card of him that could convince us that he is Ethiopian.
3. There is no confirmatory residential prove of address of his family dwelling in Ethiopia.
4. There is not documentary proof rom Ethiopian court that displays his Ethiopian citizenship.
Based on the above stated facts, we would like to confirm in this letter that he is not an Ethiopian."
7. It is not in dispute that this is an original document authored by the Consular Section of the Ethiopian embassy in London. The dispute before me is to whether it is reliable as to its contents.
8. The First-tier Tribunal was not satisfied that the appellant had taken reasonable steps to establish that he is not a national of Ethiopia and, in particular, it was not satisfied that the appellant had provided all the relevant information within his knowledge to the embassy in order that a fully informed and reliable decision could be made by it on the question of his nationality.
9. I set aside the FtT's decision aside as a consequence of its failure to make findings on the evidence given by the appellant as to the questions that he had been asked at his interview at the embassy and the answers he gave thereto.
10. Subsequent to the setting aside of the FtT's decision the appellant's solicitors contacted the Consular Section of the Ethiopian embassy by telephone and received confirmation that they do not make a written record of the questions asked and the answers given during the course of nationality interviews (of the type undertaken by the appellant) and, in particular, no written record was kept of the appellant's interview. The appellant did not make his own written record, and neither was the relevant factual matrix provided to the Ethiopian embassy in writing, as was recommended by this Tribunal in its decision in ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 00252.
11. Consequently, the only evidence before me as to what information the appellant provided to the Ethiopian embassy is that given by the appellant in his witness statement and oral evidence.
12. In this regard, the appellant states that the interview lasted approximately fifteen minutes, was conducted in Amharic and, although he could not recall many of the questions asked and the answers given, he did recall being asked: (i) whether he had an Ethiopian ID card or passport; (ii) the address of family members living in Ethiopia; and, (iii) the address he had lived at whilst he was in Ethiopia. In answer the appellant asserts that he informed the embassy official: (i) that he had no such documents, (ii) that he had no relatives living in Ethiopia; and, (iii) the address he resided in whilst living in Ethiopia.
13. During evidence-in-chief the appellant stated that he could not recall any of the other questions he had been asked during his interview at the embassy. However, in answer to questions from the Tribunal the appellant indicated that he had also informed the embassy official: (i) that he had spent a large part of his childhood in Ethiopia; (ii) that he had studied there; and, (iii) that he had been deported with his father from Ethiopia to Eritrea.
14. It is plain from what I have set out above that my determination of whether the appellant has taken all reasonable steps to demonstrate that he is not of Ethiopian nationality rests to a large extent on my assessment of the truthfulness of the evidence given by the appellant as to the information he purports to have provided during the course of his interview at the embassy. He did not take any written material with him to the interview, either drawn by his solicitors or by himself, and he did not attend the embassy with a solicitor or anyone from the solicitors' office.
15. I cannot assess the truth of the appellant's encounter with the Ethiopian embassy without considering it in the context of his wider claim. In this regard, the First-tier Tribunal set out at some length the evidence given by the appellant during the course of his screening interview of 6 December 2014, asylum interview of 15 May 2015 and in oral evidence before it. It is prudent for me to set out in full herein those paragraphs of the First-tier Tribunal's decision which accurately summarise (there is no dispute as to this) such evidence:
"12. The appellant's screening interview took place on 6 December, 2014. The appellant gave his primary language as Amharic and said that he did not speak any other languages. He stated that he feared persecution in Eritrea. He did not have any documentation. He also stated that he came to the United Kingdom because of its reputation for looking after immigrants and to follow his religion. The agent who helped him come to the United Kingdom had told him not to claim asylum in Italy or France because immigrants lived on the streets in these countries. He had not been subjected to forced work or any other form of exploitation. He gave his last address in Eritrea as 'Cambo Sudan, Assab.' He did not have a partner or children or any other family in the United Kingdom. He stated that he did not have any medical conditions.
13. The asylum interview took place on 15 May, 2015, and the Amharic language was used.
14. The appellant said that he feared return to Eritrea because he had left illegally, he would not be able to practise his religion and he did not want to serve in the army. He also said that he was born a Pentecostal Christian. He then said that he was born in Assab and was ethnically a Tigrinyan. He had left Eritrea when he was 2 years old and lived in Addis Ababa in Ethiopia until 2000, when he went back to Assab in Eritrea. He left again in 2003 and went to the Sudan. He left Sudan in October, 2014. After 25 days in Libya, he travelled to Italy, where he stayed for two days before moving on to France.
15. The appellant said that his main language was Amharic. Whilst he could understand a little Tigrinyan, he could not speak it. He did not know if he was born in a hospital. After his return from Ethiopia, he lived in the same district as he had lived in before. The appellant was asked questions about the area. He was also asked about his beliefs and why he had previously said that he was a Protestant but now said that he was a Pentecostal Christian.
16. The appellant gave his father's place of birth as Eritrea and his race as Tigrinya. His father spoke Amharic and Tigrinya, with Tigrinya as his main language although he spoke Amharic extensively and used this language with the appellant. He had not seen his mother since he left Eritrea when he was 2 years old. He knew that she spoke Tigrinya but did not know what other languages she knew.
17. In Ethiopia, the appellant attended school for four years and was taught mostly in Amharic but with some English. He said that he did not speak English very well and it was just another subject. Before he started school, he was mostly at home but spent a short time at a church pre-school. His father worked as a barber and a guard at the Mulu Wonuel Church.
18. The appellant said that he and his father were deported in 2000 because of the conflict between Eritrea and Ethiopia and them being from Eritrea. On his return to Eritrea, he was not aware of being given any identification documents. He was only 10 years old and the authorities dealt with his father. Although he had friends when he returned to Assab, he did not have any family there. He described the area where he lived as Abera Genda Sefer and said that the Pentecostal Church of Kale Hiwot, which he attended, was there. He did not know the different areas of local government. Throughout the interview, he had difficulty identifying places in Eritrea and some that he named could not be verified.
19. In Addis Ababa, he went to school for free. In Eritrea, he did not attend school because he said it was too hot and he did not feel well. He suffered from nasal bleedings because of the heat. He found the climate in Ethiopia better for him but found Sudan too hot. Even in the cooler months, he did not attend school in Eritrea because you could only start in certain months. ?
20. The appellant said that in Assab, he went to church once a week with his father, until the church was closed. He also attended some house prayer meetings with his father. The church services were conducted in Tigrinya but the appellant prayed in Amharic. Although the appellant said that the Lord's Prayer was regularly recited in Tigrinya, he could not repeat it, or any other prayer, in that language. He appeared to have difficulty in describing the differences between Pentecostal and other Protestant beliefs.
21. Although the main language used in Assab was Tigrinya, the appellant said that the local people accepted the Amharic speakers because they knew they were from the same country.
22. In Sudan, the appellant and his father lived in an area where Amharic was used. He attended the Bethel Church in Khartoum Telata.
23. The appellant was challenged about his nationality because of his inability to speak Tigrinya. The appellant said he was very young when he moved to Ethiopia, Amharic was the language in use locally and the language used in school. At that time, he was not expecting to return to Eritrea and did not need to know Tigrinya. He repeated that he was not sent to school in Eritrea because of the heat. He was able to attend church because he went at weekly intervals, whereas school took place daily.
24. The appellant said that his father was not called up for military service and he did not know if other men of the same age were.
25. The appellant said that he left Eritrea with his father because of their religion after the Pentecostal Church was made illegal. They left in October or November, 2003. His father was arrested about a month before they left but was released after the payment of a bribe. They were driven out of Eritrea in a vehicle. The appellant did not know where he was going and his father only told him that they were visiting relatives. After crossing the border, they walked the rest of the way.
26. Whilst in Sudan, the appellant worked for four months as a labourer on a construction site. His ability to work was affected by his health. He was able to follow his religious belief and attended the Bethel Church of Khartoum, Telata.
27. When asked if he feared being returned to Ethiopia, he said that he did not have any reason to go there. There was no-one there for him and it was not his country.
28. The appellant said that, at the time of his interview, he had been attending the Deeper Life Bible Church for about three months. He said that it is a Pentecostal church and the services were conducted in English.
29. The appellant was asked why he had not applied for asylum in Italy or France as he said that he had travelled through those countries. He replied that he had been advised to travel to England and make his claim there by the agent who assisted his travel. His father did not accompany him because he works and lives in Sudan. He did not know if his father sent money to Eritrea or whether any other Eritreans in Sudan did. He also did not know if his father had any identification documents in Sudan.
30. The appellant stated that the Pentecostal faith was banned in Eritrea in 2002, five or six months before he left. He did not know why it was banned but he said that it was the only faith that had been banned. He was baptised in water in Sudan in 2010. He described seeing others baptised by the Holy Spirit and answered questions about it. He was asked other questions about his faith some of which he was unable to answer.
31. He was asked to confirm when he left Eritrea and he said November, 2003. He explained the earlier difference in the dates as being because it was a long time ago and he was young then."
16. The appellant's witness statement and oral evidence before the First-tier Tribunal is summarised in the following terms in the First-tier Tribunal's decision:
"44. In his statement, the appellant confirms that his father, with whom he lived, divorced his mother before they left Eritrea when he was 2 years old. When they returned to Eritrea, they went to live in Campo/Cambo Sudan, Assab, where his father had lived before and had friends. Until it was closed, he attended the Kale Hiwot Pentecostal Church in Cambo Sudan. He states that he attended the house church at Ms Tesfamariam's house. He states that his father was arrested 'from the house church' around September/October, 2003. The appellant was not present because he was ill. His father was released in November, 2003, and they then went to Sudan illegally, where they lived at 'Diem' with others from Eritrea. He maintains that he is a Pentecostal Christian and is continuing to practise his belief at the Deeper Life Bible Church.
45. In response to a supplementary question, the appellant said that he was not prepared to undertake military service if he was returned to Eritrea.
46. In cross-examination, the appellant was asked about the languages that his father spoke and why his main language was Amharic. He explained that he had spent most of his early years in Ethiopia and that Amharic was used when he was at school there. He was referred to the letter from the Ethiopian Embassy and asked how many times he went there and whether he was accompanied. He maintained that he went on his own on three occasions, the two times referred to in the letter and a final time to collect it. He had been asked for details of his father but was not asked about school and he did not volunteer the information.
47. The appellant said that he started attending church in the United Kingdom in February, 2015, and went twice a week. The services are conducted in English. He follows them by watching a screen that gives details of Bible readings. He can then follow the reading in his own Bible in the Amharic language. Sometimes there is an interpreter present who can assist him. He did not ask the pastor to attend this hearing on his behalf, although he was aware that his faith is one of the issues in this case.
48. He said that he knew Ms Tesfamariam from attending house groups with her. However, he knew very little about her other family members.
49. He was asked about the apparent discrepancy in the interview notes as to when he says that he left Eritrea. He said that the Pentecostal faith was banned in May, 2002. It was pointed out that he had said that he left five or six months after the banning but then he stated that he left in 2003. He was not sure if the interpreter at the interview had passed on correctly what he said about this. He had been suffering stress at the time and initially gave the wrong answer. He was frightened of returning to Eritrea because he had left illegally and could be prosecuted and imprisoned. He had not claimed asylum in Italy or France under instructions from his agent who assisted his travelling, although the agent did not travel with him.
50. I asked some questions to clarify the evidence. I was told that he left Sudan because he had entered illegally without a permit. Eritrea was abducting Eritreans and returning them to their home country. His father helped him to leave and he does not know what has happened to him or where he currently is. They could not afford for both of them to travel together.
51. As part of his re-examination, the appellant produced a Bible. He stated that it was written in Amharic and had been given to him by a member of the congregation about eight or nine months ago. I examined it and found it to appear reasonably new. The earlier section, which I took to be the Old Testament did not appear to have been used. However, the second section had been used. There was a bookmark between two pages and on one of them a verse had been underlined. The appellant told me that the verse was the one that he was currently meditating about."
17. I also observe that a Ms Tesfamariam produced a statement and gave oral evidence before the First-tier Tribunal. I need not set out her evidence herein, but I confirm that I have had regard to it.
18. In her refusal letter the Secretary of State made the following points, which were adopted by Mr McVeety as the foundation the Secretary of State's present challenge to the appellant's credibility:
(i) The appellant failed to provide a reasonable explanation as to why he speaks Amharic, and why his father mostly speaks to him in Amharic, given that both of his parents speak Tigrinya;
(ii) Although the appellant stated that he was of Tigrinya ethnicity during his asylum interview, when asked the same question during his screening interview he did not provide an answer;
(iii) The appellant's explanation as to why he did not attend school in Eritrea between 2000 and 2003 is not reasonable and is inconsistent with his evidence to have later worked in construction in Sudan despite it being hot there;
(iv) The appellant gave inconsistent evidence as to when he left Eritrea, stating first that he left Eritrea five or six months after Pentecostalism was banned in May 2002, but also claiming he left Eritrea around November 2003;
(v) The names of the areas the appellant stated were to be found around Campo Sudan could not be verified, despite every attempt having been made to do so by the Home Office;
(vi) The appellant stated during his screening interview that he was a Protestant; however, he thereafter asserted himself to be a Pentecostal Christian - the explanation given for this is not reasonable;
(vii) The appellant was unable to identify why Pentecostalism was banned in Eritrea in May 2002;
(viii) Whilst the appellant was able to name some of the "Gifts of the Spirit" he was not able to name them all and one of his answers was incorrect;
(ix) The appellant could not recall how St Mark described the Gifts of the Holy Spirit or whether the Pentecostal faith was described in the Old Testament;
(x) The appellant names the Kale Hiwot Church as a Pentecostal church. However, this church is the Ethiopian equivalent of the Baptist Church and, according to the appellant, ceremonies are conducted in Tigrinya, a language the appellant states he does not speak;
(xi) The appellant failed to produce any evidence of a connection with the Pentecostal church in the United Kingdom;
(xii) The appellant failed to claim asylum in the first safe country he travelled through, having travelled through Italy and France before arriving in the United Kingdom.
19. Moving on to my consideration of the credibility of the appellant's evidence, and taking matters in chronological order.
20. I reject the Secretary of State's assertion that it is not plausible that the appellant did not learn to speak Tigrinya given that both his parents speak Tigrinya. On the appellant's account his mother left the family when he was just two years old, i.e. at a time when the appellant would be just learning to speak. Thereafter, on the appellant's evidence, he also moved to Ethiopia (Addis Ababa) when he was two years old, where Amharic would have been the major language. If, as the appellant asserts, his father spoke both languages (which is consistent with him having come from Campo Sudan) it is certainly not implausible that his father would have chosen to speak to the appellant in Amharic and not teach him Tigrinya.
21. It is the appellant's case that he was deported from Ethiopia back to Eritrea in 2000. This is broadly consistent with the background evidence which records a significant number of deportations of Eritrean nationals from Ethiopia at around that time (see for example HG (Risk, Eritrean) Ethiopia CG [2002] UKIAT 05689, a decision maintained on the Upper Tribunal's website with a CG designation).
22. The appellant states that he lived in Campo Sudan. There is evidence before me relating to Campo Sudan and its existence which describes it as one of the three divisions in the town of Assab. Assab is described as having "more an Ethiopian than Eritrean feel to it" and Campo Sudan is described as "the former domain of Ethiopian residence". This evidence is supportive of the plausibility of the appellant's claim to have lived in that area of Eritrea, but still not able to speak Tigrinya.
23. Moving on, I also do not accept the Secretary of State's submission that it is implausible that the appellant would not have attended school in Eritrea between 2000 and 2003. Given his age it is unlikely to have been the appellant's choice as to whether he attended school between 2000 and 2003, but his father's. The appellant would have been aged between 10 and 13 during the material years. He is therefore recalling events which not only occurred when he was a minor - i.e. as seen through the eyes of a minor - but which took place 13 to 16 years ago.
24. The same considerations apply my assessment as to the weight to that can be attached to the inconsistency in the appellant's evidence as to the date he left Eritrea and moved to Sudan. The appellant would have been only 12 or 13 years old at the time, and he is attempting to recall events which took place between 12 and 13 years ago. In all the circumstances I attach little weight on the inconsistency relied upon by the SSHD in this regard.
25. In coming to my conclusions as to the truthfulness of the appellant's evidence of the claimed events that occurred upon his return to Eritrea, I bear in mind the consistency between such evidence and the known background circumstances prevailing in Eritrea in 2002-2003. In YT (Minority church members at risk) Eritrea CG [2004] UKIAT 00218, which is still present on the Upper Tribunal's website, the appellant was found to be a Pentecostal Christian and to have been an activist in the Kale Hiwot Church in Eritrea ("KHCE"). This is a church which the Secretary of State takes the view (in the refusal letter) is not associated with Pentecostal Christians.
26. The decision in YT further identifies, in its paragraph 11, that on 21 May 2002 the Eritrean government closed all churches other than the Orthodox, Roman Catholic and Lutheran denominations (including KHCE). I observe that this is entirely consistent with the appellant's own evidence that the religion was banned in Eritrea in 2002. There were thereafter, according to YT, arrests of members of Pentecostal denominations, which is consistent with the appellant's evidence that his father was arrested at that time.
27. Looking at all the evidence in the round, and taking on board all matters relied upon by the Secretary of State, I find that the account the appellant gives of the circumstances in 2002/2003 which he says led to him and his father eventually leaving Eritrea, is entirely plausible and consistent with the background evidence.
28. I further take into account that Ms Tesfamariam gave evidence that (i) the appellant attended her home with his father in Eritrea (ii) that she is a Pentecostal Christian (iii) she witnessed the appellant's father practising the Pentecostal faith in house churches in Eritrea in 2002 to 2003, (iv) that she lost contact with the appellant and his father at around the end of 2003 and (v) she met the appellant again in Liverpool in May 2015, having recognised him because of his birthmark.
29. The First-tier Tribunal took the view that both the appellant and Ms Tesfamariam's evidence was diminished as a consequence of the fact that both had signed declarations at the end of their witness statements identifying that these statements had been read back to them in Tigrinya. They both later asserted this not to be correct but that they had been read back in Amharic. I have before me a statement from the appellant's solicitor in this regard, confirming that the witness statements were read back to Ms Tesfamariam and the appellant in Amharic, not Tigrinya. In light of this I do not treat as adverse the obviously incorrect initial indication by Ms Tesfamarium and the appellant to the contrary.
30. The First-tier Tribunal also said as follows in relation to the evidence of the appellant and Ms Tesfamariam [64]:
"The interview notes suggest that the appellant and Ms Tesfamariam attended the same church in Sudan over a period of several years but there is not any evidence to suggest that they ever recognised one another. Ms Tesfamariam gives a very clear description of how the authorities handled raids on church houses and this is likely to be standard practice. I therefore assume that if the appellant's father was arrested, all of the other worshippers present were also arrested. It is not explained whether Ms Tesfamariam and/or her father were present on that occasion. However, I do not find it credible that the arrest of members of her house group, would not have been known to other members. Even if there were several groups with fluidity of membership between them, I would still expect Ms Tesfamariam would have been aware of a group being arrested but she does not make any reference to it in her evidence."
31. I do not agree with the First-tier Tribunal in this regard. There is simply no evidence that the church referred to by Ms Tesfamariam in her interview record is the same church referred to by the appellant in his. The places of worship named by the appellant and Ms Tesfamarium are of the same faith and are in the same country, that does not mean, however, that they are the same place of worship - particularly given the genesis of the word Bethel.
32. Having said all I do above I, nevertheless, find it to be of significance that Ms Tesfamariam did not give oral evidence to the Upper Tribunal and, therefore, there was no opportunity for the Secretary of State to test her evidence by way of cross examination. This reduces the weight I place on it.
33. Indeed, the appellant did not call any witnesses before the Upper Tribunal in support of the assertion that he is of the Pentecostal faith. Whilst I observe that there is written evidence before me from a Dr Akinsanya I concur with the First-tier Tribunal's view that it is of little assistance in furthering the appellant's case.
34. The Secretary of State further points to gaps in the appellant's knowledge of his claimed faith which, it is said, appear in answer to questions asked of him during the interview process. The appellant does not seek to shy away from such gaps, asserting instead that as a normal follower of the religion it is perfectly legitimate for him to have such gaps in his knowledge.
35. Looking at the questions asked, and answers given, by the appellant in relation to his knowledge of the Pentecostal faith in the context of the matters raised in the Secretary of State's refusal letter in this regard, it is apparent that the appellant gave accurate answers to a number of the questions posed of him. I deduce this is so because the Secretary of State does not raise query with such answers.
36. As to the questions the appellant either did not answer, or did not answer correctly, I have not been provided with any evidence by the Secretary of State to dispute the appellant's contention that it is perfectly plausible for a 'normal follower' of the Pentecostal faith (as the appellant describes himself) might have such gaps in their knowledge. I have no personal knowledge of the Pentecostal faith. The Secretary of State has known of the appellant's explanation for such matters since January 2016. In the absence of evidence contradicting the appellant's explanation, I am not prepared to conclude that the apparent gaps in the appellant's knowledge of matters relating to the Pentecostal faith is such so as to lead to a conclusion that he is not of that faith.
37. Moving on, I take into account, as I must, the failure of the appellant to claim asylum en route to the United Kingdom in the first safe country on his journey, the appellant having travelled through both Italy and France. I accept that such failure undermines the appellant's credibility - a matter which I must, and do, weigh in the round.
38. However, having considered all of the evidence in the round, and having taken into account all matters raised by the Secretary of State, I am prepared to accept that the account given by the appellant is, albeit with some inconsistencies, an account which can be believed.
39. In particular, I am prepared to accept the appellant's evidence regarding the information he provided to the Ethiopian embassy, despite his failure to produce any written documentation to support his assertions in this regard. I am also prepared to accept his evidence that he made attempts to contact his father in order to obtain relevant documentation to prove the truth of his account, but this did not meet with success.
40. In all circumstances I accept that the appellant has taken reasonable steps to establish that he is not a national of Ethiopia. On the basis of the steps that he has taken, and observing that Ethiopian embassy have concluded that he is not an Ethiopian national, I also accept this to be so. I further accept that he is a national of Eritrea.
41. Mr McVeety properly accepted that if the appellant is returned to Eritrea he will be at real risk of suffering treatment amounting to persecution, and that this would be for a Refugee Convention reason. Given this concession, I need say no more than I concur with Mr McVeety's analysis.
42. Consequently, I allow the appellant's appeal on the basis that the appellant is a refugee. His return to Eritrea would also lead to a breach of Article 3 ECHR.

Notice of Decision

For reasons given in the decision of the 26 July 2016, the decision of the First-tier Tribunal is set aside.

Having re-made the decision under appeal I allow it on the basis that the appellant is a refugee and that his removal would lead to a breach of Article 3 ECHR

Signed:

Upper Tribunal Judge O'Connor