Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10217/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision and Reasons Promulgated
On: 29th March 2017
On: 31st March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

YM
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms N. Wilkins, Counsel instructed by Supreme Solicitors
For the Respondent: Mr G. Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Ethiopia born in 1979.

Anonymity Order

2. This appeal concerns a claim for international protection. I have decided to make a direction for anonymity, having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders. I make an order in the following terms:

“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and First-tier Tribunal Decision

3. The Appellant’s claim for international protection is that she faced a well-founded fear of persecution in Ethiopia for reasons of her political opinion. The Appellant was a civil servant in Ethiopia, but was politically opposed to the current government. She states that she has suffered difficulties at work, beatings by police, arrest and detention because of these political beliefs. She claims to have been a supporter of banned opposition group Ginbot 7 since 2013, and a member since 2014. The event that led her to flee Ethiopia was her arrest in November 2014 for secretly trying to record a government seminar. She was detained but managed to escape. She ran for some time, hitchhiked and fled to a church. From there she managed to contact her brother who arranged for her to get out of the country. After her arrest her home was raided and documents relating to her work for Ginbot 7 were recovered by the authorities.

4. The Respondent had rejected the account for want of credibility. She considered the Appellant to have given a discrepant account, and found objective evidence to suggest that the church that the Appellant claimed to have gone to was in a different area from where she claims to have been held.

5. When the matter came before the First-tier Tribunal (Judge L.A.L Paul) the Appellant relied on her own evidence, documents establishing her connection with Ginbot 7, an expert report from Dr Gunter Schroder1 and some documentary evidence relating to her activities in the United Kingdom: this included a transcript of an interview with the Appellant aired on ‘Ethiopian Satellite TV’ (ESAT) and photographs of her attending a demonstration in London.

6. The Tribunal rejected the account. It was found to be lacking in detail and inconsistent. The Tribunal did not believe that the Appellant would be permitted to return to work as a civil servant, and then promoted, if she were suspected of holding opposition views. The Tribunal did not consider it plausible that the Appellant would flag down a motorist and ask for a lift if she had escaped from detention as claimed. The Tribunal was concerned that the Appellant failed to take the opportunity to give more detail in her account. The appeal was dismissed on all grounds.

The Appellant’s Appeal

7. The Appellant was granted permission to appeal by Upper Tribunal Judge Allen on the 20th July 2016 and on the 31st January 2017 the matter came before me for a hearing to determine whether the decision of the First-tier Tribunal contained a material error of law. On that day the Secretary of State was represented by Senior Presenting Officer Mr A. McVeety, and the Appellant by solicitor Mr J. Lynch.

8. The written grounds were closely argued but were before me very helpfully distilled by Mr Lynch into the following proposition: in making its findings the First-tier Tribunal materially erred in failing to take relevant evidence into account. The evidence in question was:

a) the expert report of Gunter Schroder;
b) the Appellant’s own detailed evidence in her asylum interview record and statement; and
c) the certification of a number of translated documents by a qualified interpreter.

9. For the Respondent Mr McVeety took the very realistic view that this appeal could not be opposed. For the reasons that I set out in my written decision promulgated on the 1st February 2017, I agreed with this assessment. Those reasons are as follows.

Error of Law

10. In its determination the First-tier Tribunal expressly found that it was implausible that the Appellant would be permitted to return to her work as a civil servant if she had come under scrutiny that had warranted detention [at §41 of the determination]. I agree that in making that finding the Tribunal appears to have omitted to consider the evidence of Gunter Schroder [at §148 of his report] which confirms that the government:

“employs professionals even if they have a record of anti-government sentiments or even activities. To assure as much as possible that they stay in line, however, these employees are tightly monitored. One element of this control is to force state employees to become members of the EPRDF either direct or through membership in one of the component parties of the EPRDF”.

Mr Schroder goes on to say [at §149] that such employees will be subject to frequent evaluations of their political reliability and that if they are “found wanting” they are commonly subject to censure that stops short of outright dismissal, censure such as suspension. Mr Lynch submitted, with considerable justification, that this evidence was consistent with the Appellant’s account that she was expected to join the EPRDF, that she was permitted to return to work but having done so faced scrutiny and suspension. I find that in making the finding that it did at §41 the Tribunal erred in law in failing to consider the account in the round with Mr Schroder’s unchallenged expert evidence.

11. Further findings must fall for the same error. At §50-51 the First-tier Tribunal rejects the Appellant’s account of how she was recruited to opposition group Ginbot 7. The central reason given for that conclusion is that the Appellant’s evidence conflicted with the country background information. She had said that she was recruited by an individual who remained her sole point of contact with the group. The Respondent had rejected this on the basis of information that Ginbot 7 operates in cells of between 4-5 people. The Tribunal adopted the Respondent’s reasoning and pointed to a passage in the Schroder report which would seem to be broadly consistent with it: “if a target person agrees to support Ginbot 7, he/she usually joins a clandestine cell of supporters of five to seven members” [at §156]. The Tribunal goes on to reject, without reasons, the suggestion that the individual who recruited the Appellant could be considered to be her “handler”. That was presumably a reference to this evidence of Gunter Schroder, which did not feature in the determination:

“[156]….However, a number of recruits never join such a cell but are led as individual supporters by a handler. Such individuals are usually persons where joining a cell would expose them to a risk of detection by the security. Such persons are usually members of the civil services including teaching staff of colleges and universities and the armed forces and police. Depending on position and context it often would not be possible for secret supporters of Ginbot 7 from the civil service, military and police to participate in a clandestine cell without sooner or later arousing suspicion of the security organs.

[157] Given her position as an official in the Federal Government Communications Affairs Office, it is also plausible that YMM did not join a clandestine cell of supporters but was handled by her recruiter as an individual supporter. It is plausible that her work mainly consisted in passing information about government activities, as any other activity would have endangered her clandestinely”.

12. I find that in its risk assessment the First-tier Tribunal has failed to take this material evidence into account. The evidence of Dr Schroder was that the account was entirely plausible, given his expert knowledge on how Ginbot 7 operates. The Appellant’s case was that she was a civil servant who was recruited by a personal friend (again a matter found by Dr Schroder to be plausible [at §154]). Her role was to provide information to that friend. The Tribunal was bound to evaluate that claim in light of all the available information. I cannot be satisfied that it did so.

13. The Appellant asserted that since her arrival in the United Kingdom she has continued in her opposition activities. Part of that evidence included transcripts of two television interviews conducted with the Appellant and aired on ‘ESAT’, an internet-based television ‘channel’ run by, or closely associated with, Ethiopian opposition groups. It is not in issue that the Appellant produced in evidence recordings of the interviews in Amharic, accompanied by English- language transcripts. The first English-language transcript shows that the Appellant was interviewed when she attended a protest in London against the killing of civilians in Ethiopia. She gives the journalist conducting the interview several reasons as to why she opposes the policy of the Ethiopian government towards various ethnic groups. The second names the Appellant and identifies that she is being interviewed as a former member of EPRDF and civil servant who is going to talk about government strategies for political influence in education. This evidence was plainly relevant to the risk assessment, given the background evidence that the Ethiopian government monitors the activities of opponents in the diaspora. The First-tier Tribunal refused to give any weight to these interviews, either in their visual Amharic form, or in translation. The reason given for that [at §59] is that the translations are not certified and there was no information provided about the person who had translated them. This reasoning is not at all clear to me. At the bottom of the first transcript appears the words: “I certify that this transcript is a correct and accurate transcript of the interview posted on the ESAT website”. It is signed in Amharic script, and below this the name is given ‘Yonahan Shiberu”. On the bottom of the second transcript is a declaration by the same person to similar effect, except to specify that the material translated was a discussion which aired on ESAT on the 22nd February 2016. Other documents translated by Mr Shiberu appear to be accepted without any difficulty. Mr McVeety was unable to identify any reason why these ones were rejected. The Tribunal also questions why there are index numbers at the bottom of one of the transcripts which do not match the numbering in the bundle. The Appellant’s counsel suggested that perhaps that translation had already been used in another appeal (possibly of the other woman being interviewed). This is given as a further reason to place “no weight” on the transcript. Again, I struggle to follow the reasoning. The fact that the same document appeared in another appeal (if that is indeed the case) is not a reason to reject it. The Tribunal had viewed the actual interview and does not take issue with the claim that it is the Appellant who is depicted, being interviewed. In those circumstances it was bound to take the translated and certified interview transcripts into account.

14. The final ground concerns the Tribunal’s finding that the Appellant’s evidence was “vague”. Issue is taken with that description and I am invited to look to the interview record and witness statements. I did not consider it necessary to do so at the ‘error of law’ stage, since the determination was already fatally flawed by the approach taken to the expert evidence and the transcripts. I could not be satisfied that any of the credibility findings made by the Tribunal were sustainable. For that reason the entire determination was set aside for re-making.

15. The hearing resumed before me on the 29th March 2017.

The Re-Made Decision

16. The first thing to say about the Appellant’s evidence is that it is, contrary to the finding of the First-tier Tribunal, incredibly detailed. In her asylum interview and in 2 hours and 20 minutes of live evidence before me, she gave fluent, straightforward and thorough evidence, explaining the nature of her work in Ethiopia, her political views and the problems that they caused her. As Ms Wilkins aptly put it: the oral evidence “contained a significant amount of idiosyncratic and technical detail about her work” which could not realistically be invention.

17. Having had the opportunity to hear from the Appellant myself I was left in no doubt at all about her credibility as a witness. For instance, in her oral evidence she explained with clarity an event in 2013 which reinforced her sympathies for the opposition, and contributed to her decision to subsequently join Ginbot 7 [from the record of proceedings]:

Q. At para 13 of your WS you talk about an exhibition in Jijjiga. Do you remember what time of year that was?

A. It was the ‘day of ethnic groups and nationalities’. Everyone had their own events going on. The federal government, media and communications dept, sponsored this event – it brings together people from all the regions. I think that date is the 29th November (Ethiopian calendar) but it opened on the 27th. These dates would fall in the Gregorian calendar in December.

Q You were accused of favouring the Oromo and Amhara over the Tigrayans – was that true?

A. No I did not do that deliberately. I was co-ordinating the exhibition. I discussed it with my team. When we set out the exhibition we did not consider that the history of the revolution was that important for this particular event, but it was depicted in some of the photographs. By chance, two images represented Oromo people, two represented Amhara and only one showed a Tigrayan.

When I think of it in retrospect we had tried to reflect the three main parties of the ruling coalition. That was what we had in mind. The imbalance was unintentional. It was not our intention to promote one over the other. But then Tigrayans who saw the exhibition were not happy about it. That was why I was accused. One woman was the speaker of the regional Tigrayan parliament. And others in her delegation.

Q. What happened in the course of the investigation?

A. When the Tigrayan delegation had finished viewing the exhibition they came to see us. The first question they asked was who the team leader was – I said me – they asked was the representation deliberate? They were nervous. It was about a year after the PM had passed away and they wanted to connect the issues…according to them their image was being lowered.

They confiscated my laptop and my mobile phone. The deputy minister of communication took me aside and he spoke with me. His opinion was that I could have done the exhibition in a different way. He said I could have given greater prominence to their contribution to the revolution.

That afternoon I was excluded. I was told to stay at the place that we stayed. In the evening some other people came. I was taken back to the exhibition. No one was there. These people – people from the Tigrayan delegation - went around with me asking me lots of questions with the aim of trying to work out my history, my background. I tried to explain to them there was no malice in my decisions, but they did not believe me. As we went around the exhibition and I was questioned I was hit and pushed. There was a policeman there who beat me with a charged whip about my legs. I was slapped on my face. This lasted two-three hours. They then returned me to where I stayed.

(appellant appears downcast/ angry)

18. I have considered the Appellant’s oral evidence alongside the interview record and her witness statement. There are some apparent discrepancies in respect of dates but I accept Ms Wilkins submissions – as did Mr Harrison – that these arose from the confusion over some being recorded in the Gregorian calendar and some in accordance with the Ethiopian. I accept that at least one was miscalculated in translation. Overall I was satisfied that the account was detailed and internally consistent. There was nothing in her account that gave me any cause for concern2.

19. The second point to note is that the evidence is, I find, consistent with the available country background material. The pertinent parts of Dr Schroder’s evidence are set out above in the ‘error of law’ decision and there is no utility in repeating them in detail here, but I am satisfied that each of the apparent discrepancies identified by the Respondent is not a discrepancy at all:

i) The Respondent did not accept that a civil servant would be permitted to return to work if she were suspected of political opposition. Dr Schroder confirms that there is nothing inherently implausible in that. In fact, the evidence suggests that the Ethiopian government use such employment to monitor and coerce potential dissidents. This method of control is further illustrated by the routine requirement that civil servants must join the ruling party (EPRDF).

ii) The Respondent did not accept that the Appellant would be recruited and “handled” by a lone individual when the evidence indicated that Ginbot 7 operate in cells. Whilst Dr Schroder agreed that this is normally the case, as he explains in the extract set out at paragraph 11 above, in particularly sensitive cases, where the recruit might be at particular risk of exposure, a single handler would be used. Dr Schroder particularly identifies civil servants as being the kind of people who might be recruited in this way.

iii) The Respondent believed that she had identified a serious discrepancy in the evidence in that the church where the Appellant is said to have sheltered was not in the area where she claimed to have been held in detention. The church was named as Yeka Michael in Megenagna. A ‘google map’ search undertaken by the Respondent showed this church to be in Yeka, only 6km away from the Appellant’s home and in central Addis. Dr Schroder addresses this finding at paragraphs 178-179 of this report. His central conclusion is that “UKBA basically misread the map”. He provides his own map and explanation that Yeka Michael church is found on the northern side of Addis Ababa and that it is indeed close to a patch of Eucalyptus forest as described by the Appellant in her account. I note that Dr Schroder has been a frequent visitor to the city and knows it well.

20. The third factor in the Appellant’s favour is that her evidence about her increasing political antipathy towards the Ethiopian regime is entirely consistent with the very clear evidence that she has been participating in opposition activities in the UK. Her written and oral evidence was supported by the following items of evidence linking her to sur place activities:

A series of emails communications between an individual (for the purposes of this determination I will identify that person as ‘F’) and someone at the address ‘office@ginbot7.org’, facilitated through the internet conferencing service ‘WebEx’ in a combination of Amharic and English. One, dated 8th September 2015, confirms that F’s application to join the organisation has been successful and that her membership number is 4722. In her oral evidence the Appellant explained that F is her code name. The surname on the email address corresponds to her own
A letter from Andenet Haylu of the Ginbot 7 office in Alexandria, USA dated 18th March 2016. Mr Haylu confirms that the Appellant is a member of G7 and that she is actively engaged in the activities of the organisation. He gives examples of human rights abuses by the authorities against G7 members and expresses concern that her sur place activities will have brought her to the adverse attention of the Ethiopian government through their network of spies
A number of HSBC deposit receipts. These are said to be the deposit of ‘subs’ to Ginbot 7
The interviews with the Appellant aired by ESAT and now available on Youtube (plus the certified English translations of what she was saying)3

Photographs of the Appellant at a meeting in London with democracy activist ‘General Dawit’

Photographs of the Appellant on a demonstration in London

21. I am satisfied, having regard to all of the available evidence, of the following matters:

That the Appellant was employed as a civil servant in Ethiopia, having studied language, literature and political science and having gained experience as a teacher

That she developed political views in opposition to the government and that these views were intensified by her personal experience of being ‘punished’ for perceived transgressions at work

That in early 2013 she met with an old friend from her teaching days who spoke to her about politics and introduced her to the ideas of Ginbot 7

That she later agreed to join this organisation and to help them by passing on information that she gleaned in her work

That in November 2014 she was discovered to have secretly filmed a ‘political education’ training meeting. She was detained but managed to escape and flee the country. Her home was raided and documents recovered which linked her to Ginbot 7, and showed that she had removed items from work which were classified

That since her arrival in the UK the Appellant has continued to take a high profile active role in the opposition movement and continues to be politically committed to changing the regime in Addis Ababa.

22. Somewhat unusually I would record that I would have made those findings even if I had been applying the normal civil standard of a ‘balance of probabilities’. I do so because the account was internally and externally consistent, consonant with the country background material, plausible and supported by unchallenged third party confirmation of the Appellant’s political opinions.

23. Mr Harrison accepted that if the Appellant made out her case on either, or both, the ‘historical’ claim (ie based on events before she left Ethiopia) or the ‘sur place’ claim (based on events since her arrival in the UK), she must succeed in her appeal. The reason for that is straightforward. Dr Schroder confirms that ESAT is operated by the propaganda wing of Ginbot 7, and that involvement with either or both would be highly likely to lead to persecutory ill-treatment in Ethiopia. The Ethiopian government have declared a state of emergency and the scrutiny faced by the opposition, or those perceived to be the opposition, has intensified. I find it to be reasonably likely, to put it at its lowest, that the Appellant faces a real risk of serious harm should she be returned to Ethiopia.

Decisions

24. The determination of the First-tier Tribunal contains errors of law such that it is set aside.

25. The decision in the appeal is remade as follows:

“The appeal is allowed on asylum grounds.

The Appellant is not entitled to humanitarian protection because she is a refugee.

The appeal is allowed on human rights grounds (Article 3 ECHR)”

26. There is an order for anonymity.

Upper Tribunal Judge Bruce
30th March 2017