Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10363/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 2nd November 2016
On 27th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

T Z
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Martin, Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Eritrea born on 12th March 1990. The Appellant claims to have left Eritrea at the age of 12 (alternatively 13), travelled to Sudan which she claims to have left on 20th January 2012, and travelled to Libya. Thereafter she claims to have stayed in Libya for two years before travelling to Italy by boat, onward to France and then to the UK, where she arrived undocumented and clandestinely on 28th January 2015. The Appellant claimed asylum on 29th January 2015.
2. The Appellant's application was based on a well-founded fear of persecution in Eritrea on the basis of her religion, namely that she is a Pentecostal Christian. The Appellant's application for asylum was refused by Notice of Refusal dated 3rd July 2015.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Hunter at Hatton Cross on 28th April 2016. In a decision and reasons promulgated on 24th June 2016 the Appellant's appeal was allowed on asylum grounds.
4. On 7th July 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds note that the First-tier Tribunal Judge found the Appellant was Eritrean by applying the incorrect standard of proof. At paragraph 45 the First-tier Tribunal Judge had applied the lower standard, however it is submitted that this is not the appropriate standard of proof for establishing nationality when the finding is not borne from the claim itself (i.e. the Appellant is not claiming persecution because of their nationality but because of the real risk of persecution in the claimed home country). As such, it was contended that the First-tier Tribunal Judge was materially wrong to conclude on the lower threshold that the Appellant was Eritrean and that that is consistent with the finding of the Court of Appeal in MA (Ethiopia) [2009] EWCA Civ 289.
5. On 1st August 2016 First-tier Tribunal Judge Saffer granted permission to appeal. Judge Saffer noted that it was arguable that the judge had applied the wrong standard of proof regarding the nationality issue given in MA and that he should have dealt with that issue on the balance of probabilities.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law. I note that this is an appeal by the Secretary of State. For the purpose of continuity throughout the appeal process, TZ is referred to herein as the Appellant and the Secretary of State as the Respondent. There is no Rule 24 response filed on behalf of the Appellant. The Appellant appears by her instructed Counsel, Mr Martin. The Secretary of State appears by her Home Office Presenting Officer, Mr McVeety.
Submissions/Discussions
7. Mr McVeety starts by taking me to the Grounds of Appeal and cross-referencing them with the judge's decision. He points out at paragraph 45 the judge concludes to the lower standard of proof that the Appellant is an Eritrean national. He then takes me to paragraph 37 which cites the extract from the Notice of Refusal setting out the expansion of the law from MA (Ethiopia) in the country guidance authority of ST (ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 00252 (IAC). Mr McVeety indicates that in setting out that paragraph, the judge has actually acknowledged what needs to be done to show nationality, then has not shown thereafter that those tests have been applied. All the judge does is make a note at paragraph 41 to note that the Appellant gave evidence that she attended the Ethiopian Embassy but that it was unclear from her evidence precisely what happened there and what information was provided by the Appellant other than a photograph. Mr McVeety points out that is not sufficient and consequently an error of law has arisen. Further, he indicates that it is appropriate to remit the matter for rehearing, particularly bearing in mind the recent country guidance authority given in Eritrea which has not been considered by the First-tier Tribunal Judge. He acknowledges the issue will be straightforward, namely if it is accepted that the Appellant is Eritrean she will succeed but if she is Ethiopian she will not.
8. Mr Martin contends that although the judge refers to the lower standard of proof at paragraph 45, it would be open to the judge to apply a balance of probabilities test if the case is being looked at at the level of a criminal standard. He advised that if I am against him on that, it is necessary to consider the country guidance authorities and that if the Appellant went back to Ethiopia because she was of Eritrean origin she would be mistreated. He notes that the Appellant states that she says she was born in Eritrea although she acknowledges that from a relatively young age she was brought up in Ethiopia. He submits that the judge can look at many factors in deciding nationality and submits that all other factors, e.g. the way in which the Appellant gave evidence, can be taken into account. He asked me to find there is no material error of law in the decision of the First-tier Tribunal Judge.
The Law
9. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
10. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings
11. The issue herein is a relatively straightforward one, namely whether or not the judge has applied the correct burden of proof. It is not appropriate to recite the paragraphs of MA (Ethiopia) or ST (Ethiopia) recited in the Grounds of Appeal and at paragraph 37 of the decision (this being transcribed from the Notice of Refusal). What is clear is that they set out the test to be applied and the standard of proof. It is clear that that is not "the real risk" test and that it is a test based on the balance of probabilities.
12. It is equally clear that this is not the test that has been applied by the judge. The judge has applied a test based on a lower standard of proof and I am not persuaded by Mr Martin's submission that the balance of probabilities test could be applied. That submission seems to me is wrong in law and in any event, is contrary to the basic standard of the burden and standard of proof set out at paragraph 3 quite properly in the judge's decision.
13. In such circumstances there is a clear material error of law in the decision of the First-tier Tribunal Judge and the correct approach is to set aside the decision of the First-tier Tribunal with none of the findings of fact to stand and to remit the matter back for rehearing. It would also be of relevance for the court to bear in mind on the rehearing the most recent country guidance case on Eritrea, and the quite appropriate concession made by Mr McVeety that in the event that the Appellant is Eritrean she is likely to succeed but if she is Ethiopian then she is not.

Decision and Directions

The decision of the First-tier Tribunal Judge contains a material error of law and is set aside. Directions for the rehearing of this matter are as follows:

(1) That the matter be remitted to the First-tier Tribunal sitting at Stoke on the first available date 28 days hence with an ELH of three hours.

(2) That the appeal be before any Immigration Judge other than Immigration Judge Hunter.

(3) None of the findings of fact to stand.

(4) That there be leave to either party to file and serve additional subjective and/or objective evidence, particularly with regard to the issue of the Appellant's nationality, at least seven days prior to the restored hearing.

(5) That an Amharic interpreter do attend the restored hearing.

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 her or any member of her 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 Date 26/06/2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 26/06/2017

Deputy Upper Tribunal Judge D N Harris