Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/09676/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 14 December 2016
Extempore

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

Getahun [H]
(ANONYMITY DIRECTION NOT MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms I Iteva. Solicitor, Duncan Lewis solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Russell promulgated on 27 September 2016. The appellant's case is that he is a national of Eritrea born on 1 June 1995 but is not, contrary to the Secretary of State's case, a citizen of Ethiopia. It is also the appellant's case that he is a member of the Pentecostal Christian faith and that in consequence he has a well-founded fear of persecution on return on that that basis and/or at the risk of being forced to undergo military service in Eritrea
2. The appellant states that he was brought up by his parents albeit that they spoke only to him in Amharic and that is the reason why he speaks Amharic but not Tigrinya which is the more common language in Eritrea. He appears also on his own account to have spent some time in Ethiopia and says that he has been to Eritrea for two particular periods from 2000 onwards and again as from 2000 to 2003 and again from 2005 to 2008.
3. The respondent did not accept the appellant's claim to be Eritrean for a number of reasons which are set out in the refusal letter primarily the inability to speak Tigrinya there were also doubts regarding his claim to how he travelled to the United Kingdom and also his lack of knowledge of the Pentecostal faith which he professes to be a member.
4. The matter came before the First-tier Tribunal at Taylor House on 23 June 2016. The judge stated [1] that the appellant's nationality is a matter which needs to be decided and concluded having heard evidence from the appellant and a Miss Bereket that he was not an Eritrean national.
5. The judge was not satisfied:
(i) by the explanation by the appellant or his inability to speak Tigrinya,
(ii) by the documentary evidence put before him that weight could be attached to it;
(iii) that he could attach weight to the evidence of Miss Bereket; and
(iv) by the appellant's ability to leave the country given the restrictions that were placed on both leaving even as young as 7 as is set out in MO Eritrea CG [2011] UKUT 190; or.
(v) on the basis of the evidence provided that the appellant is a Pentecostal Christian although he did accept that he did attend services in Leeds.
6. The principal grounds of challenge to the decision as set out in the grounds are, as they developed in the submissions before me, that the judge erred:
(i) In failing properly to attach weight to a letter from the Eritrean community in Lambeht;
(ii) In failing properly to attach weight to Miss Bereket's evidence;
(iii) In misconstruing the appellant's ability to speak some Tigrinya as being that he spoke no Tigrinya.
7. Dealing with the first ground I note that the judge appears to have confused letters from the Eritrean Community in Lambeth and from the Eritrean Pentecostal Church in Leeds.
8. At paragraph 35 of his decision the judge refers to a letter from the "Eritrean Pentecostal Church in Leeds". Given the description of the content, I can only assume that the reference to a letter from the Eritrean Pentecostal Church was a slip of the pen as paragraph only makes sense if the reference is to the letter from the Eritrean community in Lambeth as that does deal with the methodology applied to a person who places themselves before them saying that they are Eritrean. That is not a matter dealt with in the letter from the Pentecostal Church nor would it be likely that they would make such a statement.
9. As Ms Iteva submitted, the judge said that the letter does not say how that methodology was applied to the appellant or what he told them and that he finds the letter of no value. The difficulty is that the letter does indeed refer to the methodology and what was asked of the appellant albeit in summary form. It states
"we called elders that were indigenous of this particular region. The elders asked the claimant's family history, names as well of relevant relatives who were domiciled in Eritrea. They have told us his family belonged to the city and they have confirmed that these particular families have previously dwelled in their city and by this methodology we have managed to authenticate his Eritrean nationality.
10. Given that the judge referred to this methodology as careful it is difficult to see that his failure to attach weight to it and misinterpreting what was dealt with on the facts of this case was anything other than an error which I consider potentially material.
11. Further I consider that the judge's assessment of the appellant's inability to speak Tigrinya is flawed by his reference to or assumption in the decision that the appellant spoke only Amharic and did not speak Tigrinya at all when that is contrary to the evidence both of the appellant and which the judge had recorded at paragraph 12 of his decision.
12. Turning to the evidence of Miss Bereket what was reasonable or far is defined by context. In this context it would have been sensible if not reasonable to have expected the appellant or his representatives properly to have addressed how it was that Miss Bereket was able to recognise the appellant after such a period of time and when they had grown considerably in age.
13. That said, I consider that the decision did involve the making of an error of law. The error is in respect of the letter from the Eritrean community in Lambeth is material in that the judge has ruled that out of his consideration improperly and without giving proper reasons. That, taken together with the error as to the appellant's language ability, renders the judge's decision as to the appellant's nationality which is central to the appeal, unsustainable.
14. I therefore set the decision aside.
15. Given that the errors identified go clearly to the assessment of credibility, it will be necessary to make fresh findings in respect of all relevant matters. I therefore consider that, in line with the relevant Practice Direction, that the appeal should be remitted to the First-tier Tribunal for it to make a fresh decision, given the extent of the fact-finding that will be necessary.

SUMMARY OF CONCLUSIONS

1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the appeal to the First-tier Tribunal for a fresh decision on all relevant matters. For the avoidance of doubt, none of the findings of fact made by the First-tier Tribunal are preserved.

Signed Date: 13 December 2016

Upper Tribunal Judge Rintoul