Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10212/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 March 2017
On 19 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

BGM
(anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms G Peterson of Counsel instructed by Supreme Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Appellant is a citizen of Ethiopia born on 13 August 1986. She appeals against the decision of the Respondent made on 3 July 2015 to refuse to grant asylum in the UK.

2. The appeal was dismissed by First-tier Tribunal Judge Pickup for reasons set out in a Decision promulgated on 19 May 2016. The Appellant appealed to the Upper Tribunal, and by a Decision of Upper Tribunal Judge Pitt and Deputy Upper Tribunal Judge Mahmood promulgated on 21 December 2016 the decision of the First-tier Tribunal was set aside on the basis of error of law with the Upper Tribunal observing “None of the previous findings shall stand”, and directing a ‘resumed hearing’ before the Upper Tribunal. Thus the matter was duly listed before me to remake the decision in the appeal.

3. The Appellant left Ethiopia on 5 November 2014 travelling to Sudan. In due course she travelled via Italy and France, before arriving in the UK clandestinely by lorry on 9 January 2015. She claimed asylum on 10 January 2015. A screening interview was conducted on 13 January 2015 and a substantive asylum interview on 9 June 2015. The Appellant’s application for asylum was refused by the Respondent for reasons set out in a ‘reasons for refusal’ letter (‘RFRL’) dated 7 July 2015.

4. When the Appellant arrived in the UK she was pregnant, although she claims that she was unaware of this at the time: see asylum interview at question 11. (It may be noted that she does refer to “pain in my womb” in the screening interview at section 3.4, Respondent’s bundle A12). In July 2015 she was delivered of a son: see birth certificate, Appellant’s bundle page 135.

5. The basis of the Appellant’s case as advanced before the First-tier Tribunal is helpfully summarised at paragraph 3 of the decision of the Upper Tribunal in these terms:

“[S]he had lived in Addis Abba, Ethiopia. She was educated to Masters’ degree level and she was a lecturer at Debre Markos University between September 2011 and October 2014. The Appellant claimed to have become a supporter of the Ginbot 7 [G7] in January 2012 and became a member in September 2014. As a G7 supporter she passed on information to a contact person, a handler, this included information about mismanagement at the university. She took part in a demonstration by the Union Party on 8 June 2014. She claimed to have been arrested and imprisoned for 8 days and when released she was required to sign an agreement not to participate further in political organisations. There was a further detention and she was forcibly recruited into political training and when she voiced opposition to the training she was accused of causing a disturbance. Thereafter she was discovered to be a G7 member. She fled and arrived in the United Kingdom where she claimed asylum. She fears that if returned to Ethiopia she will be unlawfully imprisoned for being a G7 supporter and member.”

6. The Appellant also relies upon her activities in the UK, in particular her participation in a programme produced and broadcast by ESAT. (See further below.)

The Law

7. Hitherto it has been my habit in decisions such as this to set out a detailed recitation of the applicable law and principles both in respect of protection under the Refugee Convention and protection under the ECHR. I have also habitually made reference to the case law relevant to Article 8 of the ECHR. However, my attention has recently been drawn to the following passage in the case of EJA v SSHD [2017] EWCA Civ 10 at paragraph 27:

“Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the F-tT has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper. Similarly, as Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, “reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account”. He added that an “appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself”. Moreover, some principles are so firmly embedded in judicial thinking that they do not need to be recited. For example, it would be surprising to see in every civil judgment a paragraph dealing with the burden and standard of proof; or in every running down action a treatise, however short, on the law of negligence. That said, the reader of any judicial decision must be reassured from its content that the court or tribunal has applied the correct legal test to any question it is deciding.”

8. In such circumstances I do not propose to recite the applicable law and principles. Suffice to say I have had particular regard to the applicable jurisprudence in respect of the Refugee Convention and the ECHR; further, in respect of ‘protection’, I have had regard to the applicable standard of proof with reference to the cases of Sivakumaran and Karanakaran.

Documentation Considered

9. Both parties have filed documents in the appeal. Ms Peterson has also provided a helpful Skeleton Argument incorporating a Chronology. All documents are a matter of record on the file, and I do not detail them further here. I have had regard to all material on file in reaching my decision.

The Hearing

10. The Appellant participated in the hearing through an interpreter. I ensured mutual understanding at the outset and no language difficulties became apparent during the course of the hearing.

11. The Appellant attended the hearing with her child, who, when the hearing was called on, was awake and lively. The Appellant (who had travelled from Rochdale the day before the hearing) did not have anybody with her in London who could care for the child outside the hearing room. Concern was expressed as to the extent to which the child might distract the Appellant in her evidence. In the event, after some delay, and after a feed, the child settled and the representatives agreed that it would be possible to commence the hearing. In the event the child remained asleep during the course of the hearing, and I am satisfied that the Appellant was not distracted or otherwise hindered in her presentation of evidence in consequence of the presence of her son.

12. I heard evidence from the Appellant. There were no other witnesses called. I then heard submissions from the representatives. I have made a note of the evidence and the submissions in my record of proceedings which is on file. I have had regard to all that was said at the hearing in reaching my decision.

13. At the conclusion of the hearing I reserved my Decision and Reasons, which I give now.

Findings and Conclusions

14. I have given the most anxious scrutiny to all aspects of this appeal. I have reminded myself that it is not necessary for me to set out my approach to every single point and counterpoint aired by the parties: it is sufficient that I have independently considered all available relevant evidence and have reached the conclusions set out herein for the reasons set out herein. The omission of reference to any particular document or aspect of evidence is not indicative of a lack of consideration to that document or aspect of evidence.

15. In the RFRL the Respondent accepted the Appellant’s identity and nationality, albeit there is a slip at page 7 of the RFRL - acknowledged by Mr Avery – in referring to nationality as Eritrean. However, the Respondent did not accept the Appellant’s account of supporting and becoming a member of Ginbot 7, or her claimed activities with G7, or her claim to have been arrested in Ethiopia: see RFRL pages 7–8. The Respondent considered that the Appellant had not displayed knowledge of G7 any greater than that which was available in the public domain, and had been inconsistent in relating the dates of her involvement. It was also considered that the Appellant’s account of only ever having had contact with a single ‘handler’ was inconsistent with country information which suggested organisation in a ‘cell’ structure of autonomous cells consisting of 4 or 5 people. The Respondent also considered that the Appellant had given inconsistent dates in respect of arrest, and further that it was not credible that having been arrested twice in close proximity she had not been subject to more thorough investigation.

16. The Appellant’s participation in an ESAT programme post-dated the Respondent’s decision, and necessarily therefore the RFRL does not address it. In respect of ‘sur place’ activity it was said however that the Appellant’s involvement in demonstrations in the UK (in respect of which she had submitted photographs prior to the Respondent’s decision) was considered to be participation “solely in order to advance your asylum claim”.

17. In his submissions in respect of ‘sur place’ activity Mr Avery submitted that the Appellant’s comments in the ESAT programme had been limited to the educational system and should not be characterised as controversial; when he was invited to comment on whether such comments might be considered controversial from the perspective of the government in Ethiopia, Mr Avery appropriately observed that this was a question of fact and degree, ultimately for the Tribunal’s evaluation. In this regard, and generally, he acknowledged that the government in Ethiopia did not take a ‘beneficial attitude’ towards opposition, but questioned whether the Appellant’s profile was sufficient to attract adverse attention. He submitted that the government would distinguish between levels of activism and in particular between genuine activists and those who might be characterised as ‘hangers-on’.

18. The fact of the Appellant’s involvement in an ESAT programme is not denied. Indeed she has produced supporting evidence of it that stands essentially unchallenged. The real issue in this regard is whether or not this gives rise to risk – either in itself or in combination with the Appellant’s claimed history of events prior to her departure from Ethiopia.

19. Although the analysis that follows is necessarily set out in a linear fashion, I have taken into account all matters ‘in the round’ considering the impact of any one factor on other factors. This ‘in the round’ approach has eventually yielded the following findings and conclusions for the reasons set out below.

(i) The Appellant was involved in a programme for ESAT recorded on 22 February 2016.

(ii) The programme was political in nature. The Appellant’s own comments were in significant part political and in significant part critical of the government in Ethiopia and its policies. Moreover she called for a unity of opposition. Comments made by the hosts of the programme could be taken as indicative that the Appellant was involved in ‘organising’ the diaspora community.

(iii) In any event ESAT is closely associated with Ginbot 7 (a deemed terrorist organisation with links to the government of Eritrea), even to the extent that it is considered to have been founded by Ginbot 7 as its media outlet. The Appellant’s association with ESAT may therefore be perceived as sympathy for and involvement with anti-regime activity - including support for terrorism and also amounting to treasonable activity.

(iv) There is a reasonable likelihood that the Ethiopian government’s surveillance of diaspora activities will have resulted in the Appellant’s participation and comments having become known to the security services and other government agencies.

(v) The Appellant is in consequence at risk of arrest and detention with a concomitant risk of ill-treatment such that she has established an entitlement to the international surrogate protection of the Refugee Convention by reason of political opinion.

(vi) Moreover, the Appellant’s involvement in the ESAT programme is essentially consistent with her claim to have been politically aware in Ethiopia and opposed to the regime. Her involvement and her comments and observations during her programme are also consistent with the notion of her having been involved in the university education system as claimed.

(vii) These latter circumstances, together with the available supporting documentary evidence and the Appellant’s oral testimony are such that I accept her account of events in Ethiopia, including that she was recruited into providing information to Ginbot 7.

(viii) I am also satisfied that there is a current risk if returned to Ethiopia by reason of the events that befell the Appellant in Ethiopia.

(ix) Necessarily the pre-existing risk and the ‘sur place’ activities accentuate and exacerbate each other.

20. The Appellant has produced a transcript of the Ethiopia Satellite Television (’ESAT’) discussion programme in which she participated on 22 February 2016 (Appellant’s bundle pages 136-147), and an extract from the ESAT website headed ‘About ESAT’ (pages 106-107). Additionally supporting expert testimony has been provided from Mr Gunter Schroder (see further below).

21. I pause to note that I have not seen the video of the broadcast. However, a short segment of it was shown before the First-tier Tribunal, and Judge Pickup was satisfied that it showed the Appellant: see Decision of First-tier Tribunal at paragraph 32. Although none of the findings of the First-tier Tribunal Judge survive the ‘set aside’ decision of the Upper Tribunal, the Respondent has not sought to suggest anything other than that the Appellant was a participant in the programme.

22. The transcript indicates that the programme was titled ‘ESAT Special – Generation Killer of Education policy and governance aspect of the construction of office latent crimes’, and was posted on the ESAT website. The Appellant is described in a subtitle to the transcript as a former university lecturer. The programme appears to have been co-hosted by a person simply described in the transcript as ‘journalist’, and ‘Abe’ who is described as a satirist. The Appellant was interviewed alongside a former EPRDF member. In the interview itself the Appellant was introduced by name, and was identified as having been a lecturer at the Debremarkos University.

23. The transcript is a matter of record, and I do not propose to set out its contents in any great detail here. Suffice to say that I am entirely satisfied that the nature of the Appellant’s comments and observations were both political and critical of the Ethiopian government. I note in particular the following passages:

(i) “I will talk here about the press report on Higher Education Institution by the government. Particularly, on the issue of academic freedom.”

(ii) “There is political interference. There is no academic freedom.”

(iii) The Appellant suggested that government policies engendered a lack of respect within the University education system, and that the pupil/tutor relationship was built on fear rather than respect. Specifically she referred to an inhibition from teaching openly because while some students had come to learn, others were cadres and had political motives.

(iv) The transcript also refers to discussions amongst teachers “when those people whom we afraid of were not around”. It was said that many teachers, particularly those with families, were afraid to be critical because they feared arrest or losing their jobs. The “absence of an open political space and teachers who fight for their rights” made it “difficult to produce students who stand for their rights”.

(v) The ‘journalist’ offered a thesis that “the education policy kills the hope of the generation”, with which the Appellant expressed her agreement. In support of this the Appellant referred to the standard of the curriculum being lower than required, and the methods of teaching – in particular short modules – being ineffective

(vi) The Appellant spoke critically of the methods of soldiers when intervening in campus disputes suggesting that they were unable to differentiate between students and teachers, unable to check identity cards and that “they are very horrible soldiers”.

(vii) The Appellant was also critical of ethnic regionalisation in education as a means of limiting the spreading of ethnic grievance: see in particular at page 134.

(viii) Further to this, the Appellant’s closing observations were expressed in these terms: “What I think and believe is that the people have to wise up as I stated earlier. When protest ignite in one region other regions must participate and should share it as their own problems. If an issue raised are right, all has to rise up as one. The Oromos raise questions; people get killed and arrested and then it stops. The same thing happens in other areas as well. We can’t have change this way. Change can only happen if we all are one people. The grievances in one region should be a grievance in all region as long as the grievance is the right one. For instance, when the people in Gonder protest against the sale of their land to the Sudanese, the Oromos, the Non—TPLF Tigrians, the southerners kept quiet. Now when the Oromos protest the others keep quiet. We can’t have change if we continue doing this. We should wise up. The people must be awakened. As long as the protest is based on the right questions; why is it that farmers are expelled from their land; how long Weyana use land to prolong its power. You don’t need to be a politician. It is not fair. So we have to be one. They must support each other as long as the issues raised on the right one.”

24. In drawing the programme to a close the journalist – having referred to the programme being made outside the usual studio in London after an invitation to visit the Manchester and Bolton areas – states: “We hear a lot about Bolton. Ethiopians are organising. We have met people from all ethnic groups and witnessed the good relationship among various ethnic groups. Our Ethiopia won’t stay the same. We should not keep silent. We should cooperate”. ‘Abe’ then refers to the “issues raised by [the Appellant and the other participant] in relation to forging unity”, and expresses the hope that “The cooperation in Bolton should be replicated in Ethiopia too. We will export this to Ethiopia. We all do not have justice, freedom and good governance. We shall achieve this through mutual cooperation”.

25. In my judgement the thrust of the discussion was overtly political, and included express appeals for unity of opposition to the current regime – including an express appeal by the Appellant to this effect. In addition to being critical of the education system, the Appellant portrayed it as being oppressive of academic and political freedoms, and she argued that regionalisation policies were used as a deliberate tool to divide the population the better to control it. The closing comments referred to the diaspora community ‘organising’, and a wish to export the unity of the diaspora community. The Appellant’s participation in such a programme might powerfully suggest to a viewer an involvement in such organisation.

26. ESAT is described on its website as “a non-partisan, independent media outlet established primarily to promote free press, democracy, respect for human rights and the rule of law in Ethiopia” (Appellant’s bundle page 106). Under the heading ‘Why was ESAT established?’ it is stated “The people of Ethiopia live under a tyrannical regime that has criminalised free expression. It is an open secret that Ethiopian government is one of the leading enemies of press freedom. ESAT was established on April 24, 2010 by a group of exiled journalists to provide accurate, objective and balanced news, analysis and information, perspective as well as entertainment, talk shows, documentaries, sports and cultural programming pertaining to Ethiopia and the rest of the world”. In respect of its aims and objectives it is stated that the “main objective is to provide free access to news and information that are unlikely to see the daylight in Ethiopia due to censorship and other forms of restrictions”. Reference is also made to the suppression of press freedom and the persecution of journalists by the Ethiopian regime.

27. The Appellant relies upon the evidence of a report prepared by Mr Gunter Schroder. The report addresses a number of different aspects of the Appellant’s account – including ESAT - as well as expressing an opinion as to future risks. Mr Schroder is an historian and social anthropologist; he has set out his qualifications and expertise at pages 1-6 of his report (Appellant’s bundle pages 28-33), and has also included a copy of his CV including a list of work and publications (Appellant’s bundle pages 91-105). My attention is also drawn to his involvement in other cases, in particular ST (Ethnic Eritrean – nationality – return) Ethiopia CG [2011] UKUT 252 where his expertise on Ethiopia was described as “well-established” (paragraph 59), and SM & others (Somalia) v Secretary of State for the Home Department [2015] EWCA Civ 223 where he was described as “a respected expert who has given evidence before the Tribunal in two country guidance cases on Ethiopia” (paragraph 8). Mr Schroder has included in his report herein a suitable declaration as to his duties (Appellant’s bundle page 36), I am satisfied that Mr Schroder is duly qualified to offer expert opinion in respect of the pertinent issues in this appeal. I note that whilst Mr Avery emphasised that the fact and degree of the Appellant’s involvement in any anti-regime activities raised, and any consequent risk, was a matter of evaluation for the Tribunal, he did not seek overtly to dispute the evidence and opinion of Mr Schroder.

28. Mr Schroder’s report addresses ESAT at paragraph 89 et seq. (Appellant’s bundle page 57). At paragraph 90 it is stated:

“All available information indicates that ESAT was actually established by Ginbot 7 as its media outlet. The ESAT management strongly denied having any links Ginbot 7 and Eritrea but all available information and my confidential sources within various opposition movements confirm that these links do exist.”

See similarly paragraph 79:

“Ginbot 7 also regularly uses Eritrea media and the Amsterdam-based oppositional diaspora TV-Service ESAT, which actually is the media outlet of Ginbot 7, to spread its propaganda against the Ethiopian government.” (I note that Mr Schroder cites his source for this paragraph as being an officer of the Ethiopian National Intelligence and Security Service.)

29. In the following paragraphs Mr Schroder identifies links between ESAT and members of Ginbot 7, as well as leading members of opposition groups. ESAT is also identified as closely cooperating with other diaspora-based anti-governmental media. It is also said that ESAT is financed in part by the Eritrean government.

30. In terms of content Mr Schroder states:

“In its reporting on Ethiopia ESAT is rabidly anti-government and supportive of every movement and organisation in opposition to the Ethiopian government.” (paragraph 94).

31. It is said that “Ever since ESAT started broadcasting its radio and TV programmes to Ethiopia they have been monitored by the Ethiopian security organs and being target of jamming” (paragraph 96). A report of Ethiopian government use of spyware to monitor ESAT journalists is also cited (paragraph 100).

32. The report also refers to the editor-in-chief, Fasil Yenealem, being accused in absentia under the Anti-Terrorism Law of 2009 of aiding and abetting terrorism and terrorist organisations, specifically of being linked with the opposition Ginbot 7. In July 2012 Mr Yenealem received a life sentence for his “activities with pro-opposition broadcaster Ethiopian Satellite Television (ESAT), which government prosecutors described in court documents as ‘the voice of the terrorist organisation Ginbot 7’” (paragraph 98, citing a report from the website of the Committee to Protect Journalists).

33. Additionally the Appellant has filed a short article dated 23 February 2017 from the ESAT website reporting that prosecutors in Ethiopia have brought criminal charges against a trio of activists “as well as two media outlets based abroad, ESAT and OMN [Oromo Media Network]” to the effect that all “were involved in “attempts to overthrow the constitutionally formed government””. One of the accused, Dr Merera Gudina is described as the Chairman of Patriotic Ginbot 7. The charges allege use of the media outlets to lead and coordinate anti-government protests within Ethiopia. In my judgement this article reinforces the notion that the security services monitor the output of ESAT, and also reinforces the notion of an association between G7 and ESAT.

34. Mr Schroder’s report also provides detailed information in respect of the Ginbot 7 Movement for Justice, Freedom and Democracy. No particular issue has been raised by the Respondent as to the nature of this organisation, or the attitude of the Ethiopian government towards it. As such I do not propose to rehearse in detail the contents of Mr Shroder’s report in this regard. Key points to note however, are: it “positioned itself as a radical militant party calling for the overthrow of the current Ethiopian government by “all means possible”. It left no doubt that it considers peaceful political struggle currently as not a viable option and thus armed struggle as the only path open to effect a regime change” (paragraph 64); it “initiated contact with the Eritrean government and the Eritrea-based Ethiopian opposition organisations” (paragraph 66); it has announced the formation of a military wing, and has admitted to having received funding from Eritrea for military and intelligence activities as well as peaceful struggle and diplomatic activities (paragraph 71). The report also confirms Ginbot 7 as a target of the Ethiopian security services both inside Ethiopia and abroad, and its designation as a terrorist organisation: see paragraphs 80-88.

35. The consequences of designation as a terrorist organisation are highlighted at paragraph 101 et seq.. These include that antiterrorism law is “fully applicable to members, supporters, and sympathisers” (paragraph 101). Moreover, because Ginbot 7 is “allied with Ethiopia’s enemy Eritrea sympathisers, supporters or members are also guilty of treason as stipulated in the Ethiopian Penal code” (paragraph 102). Illustrations of the steps taken against the organisation are set out at length. These matters support the following conclusions expressed by Mr Schroder at paragraphs 122 and 123 of his report:

“122. There can be no doubt whatsoever that the Ethiopian authorities considered all persons, who were members, supporters or simple sympathisers of Ginbot 7 inside Ethiopia or abroad to be terrorists, which will be prosecuted under the anti-terrorism law of 2009, if they were to fall into the hands of the Ethiopian authorities. As Ginbot 7 is in league with the Eritrean enemy such persons are also considered to commit high treason according to the Ethiopian Penal Code.

123. There also can be no doubt that the Ethiopian authorities and their security organs consider anyone associated with or supporting in any way including financially ESAT or giving interviews with an anti-governmental tenor on ESAT to be enemies of the Ethiopian government, state and people and being associated with terrorist organisations and the Eritrean enemy. Therefore all such persons will be prosecuted under the anti-terrorism law of 2009, if they were to fall into the hands of the Ethiopian authorities.”

36. Mr Schroder’s report is detailed as to the extent of the surveillance carried out by organs of the Ethiopian state both within Ethiopia and amongst the diaspora communities: see from paragraph 250, and note in particular paragraph 292 – “There can be no doubt that now the Ethiopian intelligence services are in possession of very detailed information about individuals associated even only marginally with Ethiopian opposition activities in the diaspora well beyond the level of information in these matters they had in the 1990s”. He also refers to ‘networking’ which would suggest information that might be gathered abroad is readily shared with agencies in Ethiopia (e.g. see paragraph 230).

37. In respect of surveillance I have reminded myself of the words of Lord Justice Sedley in YB (Eritrea) [2008] EWCA Civ 360, and also of the cases of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) and KS (Burma) v SSHD [2013] EWCA Civ 67. In YB (Eritrea), at paragraph 18, Sedley LJ observed that where there is evidence that a particular regime suppresses political opponents it requires little or no evidence or speculation to arrive at a strong possibility that its foreign legations film or photograph nationals who demonstrate in public against the regime, and have informers among the expatriate oppositionist organisations who can name the people filmed or photographed; similarly it requires little affirmative evidence to establish a probability that the intelligence services of such regimes monitor the internet for information about oppositionist groups. However, the concept of a ‘hanger-on’ was identified, and further considered in the cases of KS and BA - albeit in the context of Burma and Iran and on the basis of the particular evidence filed in those appeals.

38. Whilst in the RFRL the Respondent marginalises the Appellant’s attendance at demonstrations in the UK, and by implication suggests that she would be perceived in respect of such activities as no more than a ‘hanger-on’, in my judgement the same approach is not warranted in respect of her involvement in the ESAT programme.

39. Mr Schroder’s evidence essentially stands unchallenged in all material respects on this issue. He has in any event, with detail and clarity, and citing numerous sources in addition to providing information that establishes his expertise, expressed and supported with evidence his opinions. In consequence I accord his evidence very significant weight.

40. In such circumstances I am satisfied that it is reasonably likely that the Appellant’s involvement in the ESAT programme – including the nature of the programme and the opinions the Appellant expressed therein – are known to the intelligence/security services of Ethiopia. I am also satisfied that it is reasonably likely in consequence she will be perceived as at the very least a sympathiser with both ESAT and Ginbot 7, and this will make her the subject of adverse interest in the event of her return to Ethiopia. I am also satisfied that such adverse interest carries with it a risk of treatment that passes the threshold of ‘persecutory’ treatment. In this latter context I rely upon both the expert opinion of Mr Schroder and the analogous ‘country guidance’ in MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030 in so far as it addresses the likely treatment of those persons likely to be targeted by the security services.

41. My findings in this regard are sufficient to allow the Appellant’s claim for protection, irrespective of those other aspects of her case based upon events prior to her departure from Ethiopia. For the avoidance of any doubt: I find that the risk to the Appellant by reason of her uncontested involvement with an ESAT programme is such as to satisfy the requirements of the Refugee Convention, and such a conclusion is sustainable irrespective of any credibility issues in respect of her account of events in Ethiopia prior to her departure, or by reason of her failure to claim asylum en route to the UK.

42. Nonetheless, I turn to a consideration of the Appellant’s account of events in Ethiopia.

43. I note that the Appellant’s involvement in the ESAT programme is essentially consistent with her claim to have been politically aware in Ethiopia and opposed to the regime. Her involvement and her comments and observations during her programme are also consistent with the notion of her having been involved in the university education system as claimed.

44. These latter circumstances, together with the available supporting documentary evidence and the Appellant’s oral testimony are such that I accept that she was a teacher at the University of Debremarkos.

45. In this context I note that the RFRL did not raise an issue in respect of the Appellant’s employment as a university teacher. Notwithstanding the absence of any issue being raised, First-tier Tribunal Judge Pickup made an adverse credibility finding in this regard. It was this adverse finding in the absence of any challenge that was identified as one of the material errors of law in the decision of Judges Pitt and Mahmood. The Appellant has now, by way of a Supplementary Appeal Bundle, provided an employment letter dated 2 October 2011 and a diploma licensing her as a certified professional teacher educator, together with a statement as to provenance.

46. In preliminary discussions at the hearing Mr Avery indicated that he did not propose to challenge the fact that the Appellant was a lecturer “unless something emerges during the hearing”. In the event he did not pursue any challenge in this regard in his closing submissions.

47. Further to this – in light of the fact that the Respondent was satisfied in respect of identity and I accept her professional background - I accord some, albeit marginal, weight to Mr Schroder’s observation that by ethnic, social, and professional background the Appellant belongs to a sector of the Ethiopian population marked by a high incidence of anti-government sentiments (paragraph 142).

48. The issues between the parties in respect of the Appellant’s account of events in Ethiopia essentially remains those set out in the RFRL. The Appellant has sought to address these matters in her witness statement and in her oral evidence – both in-chief and under cross-examination. Necessarily I have had careful regard to all such matters. I make the following observations:

(i) Allegation that the Appellant was inconsistent in relating the dates of her involvement with G7. It is clear that there is some confusion in the Appellant’s account as between her answer in screening interview at question 4.2, her answers to questions 63 and 64 of the substantive asylum interview, and her answer at question 149. The Appellant attempts to explain these matters during the course of the interview (questions 147-152) – although it seems to me with little clarity. Her witness statement, at paragraph 23 does not provide much by way of adequate clarification either. I note the following. The source of the confusion appears to be twofold: firstly that the Appellant stated at screening interview that she had been a member for one year and six months - which taken literally from the date of the interview would indicate mid-2013; secondly, having said that she became a supporter in January 2012 (question 64), she later said that she had been a supporter since June 2012 (question 149). The Appellant has otherwise been consistent in identifying her membership to have commenced in September 2014.

(ii) As regards a bank paying-in receipt for payment of a membership subscription from June 2015, it is clear in the context that this is claimed to be a payment whilst in the UK, and to that extent, in my judgement, does not in itself undermine anything that is said in respect of dates of events in Ethiopia.

(iii) Appellant’s knowledge of G7 no greater than that which was available in the public domain. It is pertinent to note that the Respondent did not suggest that this was an adverse feature, so much that it “did not advance [the Appellant’s] claim” (RFRL page 7). The Appellant was asked a significant number of questions during the interviewing process to test her knowledge of G7. Is not suggested that she answered any of these questions wrongly. Plainly these questions were put to the Appellant in an attempt to test her claim of support and involvement. It is apparent that the Respondent did not consider the Appellant to be lacking in any regard. Whilst it may well be the case that the information imparted by the Appellant was in the public domain, the questions themselves were many, detailed, and varied; they did not simply relate to such matters as the history of the organisation but included questions as to the whereabouts of founder members, and in this regard it may be seen that the Appellant volunteered more information in answer to question 77 that the question itself required; as well as questions inviting the Appellant to compare the organisation with other parties In the event, having considered all of the Appellant’s evidence in the round, in my judgement the Appellant’s ability to answer questions at length and in detail about G7 is because of her familiarity with the organisation born out of her support and involvement.

(iv) Contact with a single handler inconsistent with country information which suggested organisation in a cell structure of autonomous cells consisting of 4 or 5 people. This concern was put to the Appellant at interview: see questions 153–155. She suggested that she was perhaps in a process whereby she had not yet reached a stage where she would become a member of a cell, or that perhaps a cell structure was not always utilised. In this regard I note what is said by Mr Schroder in his expert’s report concerning the nature of the structure and organisation of Ginbot 7 in Ethiopia: see in particular paragraphs 74-75. There are two tiers of cells: the lower tier – comprising supporters at grassroots level – clandestinely recruit new supporters, as well as collecting funds and distributing materials. Mr Schroder explores these matters in more detail at paragraphs 150-156 with specific regard to the Appellant’s narrative. Not only is it the case that a potential new recruit is not immediately introduced into a cell, but it is also stated “a number of recruits never join such a cell but are led as individual supporters by a handler”. Moreover, Mr Schroder identifies that such persons may include teaching staff of universities.

(v) In all such circumstances I am not prepared to attach adverse weight to the fact that the Appellant’s account does not involve her becoming a member of a cell. Indeed I take note that her account is plausible when measured against the country information as set out in the unchallenged evidence of Mr Schroder.

(vi) Inconsistent dates in respect of arrest. It is to be noted that at the commencement of the substantive asylum interview the Appellant brought to the interviewing officer’s attention concerns over the dates that had been recorded in the screening interview. It is clear that such dates were based on conversions from the Ethiopian calendar. In such circumstances it would appear that any perceived discrepancy only came to light in the first instance by reason of the Appellant’s attempts to ensure an accurate presentation of her account. In the event it seems to me highly likely that any possible variation in dates arises by reason of confusion such that I am not prepared to attach any significant adverse weight to such variations as likely indicative of a fabricated account rather than one told from actual experience.

(vii) Not credible that having been arrested twice in close proximity she had not been subject to more thorough investigation. The Respondent’s reasoning in this regard is premised on an expectation of behaviour on the part of the Ethiopian security services. Whilst methods are generally thorough and brutal, it does not inevitably follow that there is a fixed template deviation from which will be indicative of a lack of veracity. In my judgement, the Appellant’s account in this regard cannot be said to be inherently implausible to an extent that it damages her credibility. It is to be noted that the Appellant has not claimed that these arrests were related to her activities for G7, but arose for separate reasons related to activities on campus. Further in this context she has suggested that the second arrest was in fact groundless, and that she was in due course released because this became apparent. This lends a plausibility to the notion that the authorities did not at that time consider her worthy of any further enquiry. Be that as it may, it is in any event her case that in due course the authorities did seek to pursue further investigation into her which resulted in the discovery of incriminating materials and she was only able to escape arrest on this occasion because she had travelled to Gonder. The Respondent’s reasoning also seems to disregard the nature of the treatment that the Appellant claims he was subjected to during her detention – including assault and rape. In all such circumstances I do not accept the Respondent’s reasoning in this regard.

(viii) As regards the arrest themselves, I note the contents of Mr Schroder’s report at paragraphs 145–149. In my judgement these paragraphs adequately demonstrate that there is a plausibility to the Appellant’s account of her arrests.

49. The Respondent did not raise section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 in the RFRL. Nor did Mr Avery suggest it applied to the circumstances of the Appellant’s case.

50. From the foregoing it may be seen that in the main I reject the Respondent’s reasoning on credibility in the RFRL – save that it remains the case that there is an element of confusion in respect of the dates offered by the Appellant with regard to her involvement in G7 in Ethiopia. Absent the concerns in respect of dates, the Appellant’s account is, in my judgement, plausible when measured against the country information. I remind myself, however, that plausibility does not inevitably equate to veracity.

51. I have had the benefit of hearing oral evidence from the Appellant. I found her to be an impressive witness. She gave her evidence in a straightforward manner, which was internally consistent and consistent with the available supporting materials. Just as in her interview, she was questioned at some length, and in my judgement dealt adequately and plausibly with all questions put to her. There was no sense of prevarication or avoidance in her answers. I was particularly struck at one point in her evidence when she was invited to clarify the ‘special places’ in which she claimed to have hidden documents; when she described a piece of luggage that allowed her to secrete things in its top, she simultaneously, and I consider naturally, made gestures with her hands descriptive of the luggage and the act of concealment; in my judgement this had every appearance of being an action recalled from memory.

52. The consistency of the Appellant’s narrative evidence is perhaps underscored by the fact that Mr Avery submissions focused on areas of possible implausibility, and did not identify as such discrepancy. In particular it was suggested that her account of having been recruited following a chance encounter with M on a bus was “hard to accept”. Mr Avery suggested that the encounter with M seemed quite casual, and that there would likely have been a risk in conducting the sort of conversation described in public.

53. In her oral evidence the Appellant stated that M was close to her on the bus and that nobody could have overheard. He had telephoned her subsequently, and they met again - it was only then that he began to pass her materials relating to G7. Ms Peterson suggests that if M was an experienced recruiter – the concept of which is consistent with the country information provided by Mr Schroder – he would likely have known how to ‘sound out’ the Appellant in conversation before taking further steps to explore her resolve and commitment.

54. I accept that there is weight to the observations of both representatives. Ultimately, in all such circumstances, I am not prepared to discount the possibility that initial contact might have been made with a recruiter during a lengthy journey by public bus, and that discreet conversation might have encompassed political discussion.

55. Mr Avery also suggested that it had been difficult to draw out from the Appellant the nature of the documentation that she had held and feared had fallen into the hands of the authorities, and what it was about such documentation that might link her to G7. I do not agree. Whilst it is the case that in re-examination the Appellant gave yet further information, in particular that the documents included newspaper articles printed from a website and leaflets, she had previously referred in general terms to the presence of “G7 documents and information”, documents with a G7 logo, and information from websites. In so far as the Appellant had to be asked more than once for clarification in this regard it seems to me that this was because she had not readily understood the amount of detail required in her answer and not because she was being evasive. For example, she initially responded by describing the format of the documents rather than their contents – that they were on a CD, a laptop, and also that there were hardcopies.

56. In my judgement the overall tenor of the Appellant’s evidence is such that she presents as a credible witness. I have taken into account the apparent discrepancies in respect of dates of involvement with G7, but ultimately I do not consider that concerns in this regard should be accorded such significant weight as to negate the quality of the remainder of the Appellant’s evidence.

57. Accordingly I accept that she had some involvement with G7 in Ethiopia. I accept that she was detained on two occasions for unrelated reasons, but that the consequences of such detention is that she is known to the authorities. I also accept that the authorities subsequently discovered documents implicating the Appellant as a sympathiser or a person otherwise involved in G7. In my judgement these circumstances are sufficient to put the Appellant at risk of further adverse interest if she were to be returned to Ethiopia; any adverse interest would likely include treatment of a nature that surpasses the threshold of persecution.

58. In all such circumstances I find that the Appellant has satisfied me that she is entitled to international surrogate protection pursuant to the Refugee Convention. I reiterate that even if I am wrong in respect of those aspects of the Appellant’s claim that relate to events in Ethiopia, in my judgement the uncontested involvement in the ESAT programme is sufficient in itself to put the Appellant at risk.

NOTICE OF DECISION

59. The appeal is allowed.

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 his 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: Dated: 13 April 2017

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Deputy Judge of the Upper Tribunal I. A. Lewis

TO THE RESPONDENT:
FEE AWARD

I have allowed the appeal and in all the circumstances make a full fee award.

Signed: Dated: 13 April 2017

………………………………………..
Judge of the First Tier Tribunal I. A. Lewis