Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10625/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 July 2016
On 9 August 2016

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

RJA
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Jegarajah, of Counsel instructed by Solomon Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Ethiopia who was born on [ ] 1998. He claimed asylum in January 2015. His application was refused and he appealed. His appeal was heard by Judge of the First-tier Tribunal Thomas on 28 April 2016 and dismissed. The appellant now appeals with permission to the Upper Tribunal.

2. The basis of the appellant's claim was that he was of Oromo ethnicity. His family were farmers and he had left home at the age of 10 to work on the family farm. In 2013 the Tigrayan People's Liberation Front had confiscated his father's land. His father who had been involved with the Oromo Liberation Front (OLF) protested and was beaten. When the appellant went to his aid he too was arrested and detained but he had been released after two weeks. The appellant claimed that he had then travelled to Addis Ababa and thence to Sudan where he had lived with his mother, who had travelled with him, for four months before she disappeared. He had then travelled on to Britain. Once here he had taken part in demonstrations in London as a member of the Oromo community in Britain demonstrating against the forced eviction of the Oromo people in Ethiopia. In particular he had taken part in a demonstration in London on 10 December 2015 protesting against the government's "master plan" to expand the borders of Addis Ababa into the regional state of Oromia which would lead to the eviction of Oromo people from their farmlands. He produced pictures showing him carrying a placard in protest which stated "no to Addis Ababa master plan". He stated that he had attended other activities in London such as Oromia media network events and that he had also spoken at meetings. He asserted that, because of his diaspora activities, he would face persecution on return to Ethiopia.

3. The judge did not find that the appellant's claim of what had happened in Ethiopia to be credible. She then went on to consider the appellant's diaspora activities. She accepted that there were pictures of the appellant at meetings including a media network event but stated there was no independent evidence from the Oromo community to support the appellant's involvement. She stated that:-

"Taking this evidence at its highest I find the appellant is not a member of a political group and did not organise any of the gatherings he attended. I do note however, that he carried a placard at one rally and spoke at another. Even allowing for the appellant's involvement being genuine, there is no evidence to demonstrate the authorities in Ethiopia have the means or interest in monitoring such activities in the United Kingdom or that they would be able to identify this appellant from photos. This is particularly so given that I have found that neither he nor his father were arrested or detained as claimed. The authorities have no record of him or adverse interest in him as they clearly have no interest in his father who continues to live in the same home in Ethiopia."

4. Although she stated that she had considered the country guidance case of MB (OLF and MTA - risk) Ethiopia CG [2007] UKIAT she considered that whilst the appellant was of Oromo ethnicity he was not a member of the OLF and would not be perceived to be a member or sympathiser of the OLF. He had not been arrested or detained on suspicion of OLF involvement in the past and had no political profile in Ethiopia and therefore was not entitled to either refugee status or humanitarian protection.

5. The appellant was given permission to appeal the determination of the First-tier Judge by Upper Tribunal Judge Reeds on 17 June 2016. It was Judge Reed's view that it was arguable that the judge had not factored in the appellant's sur place activities when considering his political profile and that it was arguable that the reasons given for dismissing the asylum claim had not fully engaged with relevant case law.

6. At the hearing before me Ms Jegarajah argued that the judge had erred when considering the appellant's sur place activities - in particular she had not applied the structured approach which is set out in the determination BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) which, in paragraph 64, set out the various issues that should be considered in detail when considering whether or not sur place activities might lead to persecution on return. Moreover she referred to the decision in YB (Eritrea) [2008] EWCA Civ 360 where Sedley LJ had stated, at paragraph 18, that:-

"Where, as here, the Tribunal has objective evidence which 'paints a bleak picture of the suppression of political opponents' by a named government, it requires little or no evidence or speculation to arrive at a strong possibility - and perhaps more - that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about opposition groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the opposition cause, that will go directly to the issue flagged up by Article 4(3)(d) of the Directive."

7. Ms Jegarajah took me to background documentation relating to the treatment of opposition groups within Ethiopia as well as the evidence that had been set out in the country guidance case of MB (OLF and MTA - risk) Ethiopia CG [2007] UKIAT 00030. She argued that in fact the judge had not properly engaged with the background documentation and the evidence of the appellant regarding his diaspora activities and the likelihood of persecution on return which would result.

8. I consider that Ms Jegarajah's point is well made. The determination is brief and in particular the judge, although she accepts that the appellant has taken part in diaspora activities here, does not fully engage with that evidence. It was an error of law for her not to engage in more detail with the evidence and indeed apply the relevant structured approach as set out in the determination in BA. Moreover she clearly did not have in mind the guidance given by Sedley LJ in his judgment in YB (Eritrea). I consider that it was an error of law for the judge not to have considered in greater detail the appellant's activities and considered those within the context of the nature of the background evidence of the Ethiopian regime's treatment of opposition groups or supporters.

9. I therefore set aside the decision of the First-tier Judge and, having borne in mind the directions of the Senior President of Tribunals regarding the remittal of appeals, remit this appeal to the First-tier Tribunal to be heard afresh.

Notice of Decision

The appeal is allowed to the extent that it is remitted to the First-tier for a hearing afresh.

Signed Date

Upper Tribunal Judge McGeachy