Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10994/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 25th August 2016
On 2nd September 2016

Before

upper tribunal JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Y K ABATE
Respondent

For the Appellant: Mr M Matthews, Senior Presenting Officer
For the Respondent: Mr S Winter, Advocate instructed by Katani & Co., Solicitors

DETERMINATION AND REASONS
1. The parties are as stated above, but the rest of this decision refers to them as they were in the FtT.
2. The appellant identifies herself as a citizen of Eritrea, born on 24th July 1990. She sought asylum in the UK on 9th April 2015.
3. The respondent refused the appellant's claim for reasons explained in a letter dated 22nd July 2015. The respondent declined to accept that the appellant is of Eritrean origin or of Tigrinyan ethnicity. The respondent further held that even if that origin and ethnicity had been accepted, the appellant provided no evidence that she had been deprived of or was no longer entitled to Ethiopian nationality.
4. The appellant appealed to the First-tier Tribunal. In his decision, promulgated on 22nd June 2016, Judge Bradshaw found that the appellant was a credible witness and a national of Eritrea of Tigrinyan ethnicity (paragraphs 84 to 87). He allowed her appeal on asylum grounds.
5. The SSHD's first ground of appeal is that the judge failed to refer to the correct standard of proof. The respondent had relied upon ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 00252: it was for the appellant to show that she could not return to Ethiopia, on the balance of probability.
6. Ground 2 further alleges failure to properly apply ST, under three sub-headings: (a) no resolution of submissions on the inadequate terms of letters sent by the appellant to the Ethiopian Embassy about her nationality; (b) difficulty in funding travel to the Ethiopian Embassy (from Glasgow to London) and the appellant's pregnancy were not matters capable of showing that the appellant was not an Ethiopian national or of meeting the requirements of ST; and (c) confusion at paragraphs 81 and 87 over whether the appellant was trying to show Eritrean nationality, and whether it was for the respondent to show that she had been deprived of or was no longer entitled to Ethiopian nationality; if the judge intended to say that she could return to Ethiopia, her appeal should have been dismissed.
7. Ground 3 alleges inadequacy of reasoning for the judge's finding that the appellant had a valid rationale for her inability to speak Tigrinyan.
8. In a written response under rule 24 the appellant contends that from ST at paragraph 73 it is unclear what the correct standard is for assessing nationality, but the respondent took the position in the FtT that the lower standard applied, and made no submission that it was the balance of probabilities. In any event the point was immaterial, a complaint of form over substance, because the FtT was plainly entitled to find as it did, having accepted the evidence of the appellant.
9. In response to ground 2 the appellant argues that the three points disclose no error, or are immaterial, on (a) because no response from the Ethiopian authorities has ever been received; on (b) this is no more than a disagreement, and the weight to be placed on the evidence was a matter for the judge; and on (c), taking the decision as a whole the judge well understood the issues in the appeal, and even if the burden of proof is misplaced at paragraph 87 the case did not turn on where the onus lay, and the judge was plainly clearly in favour of the appellant.
10. In response to ground 3 the appellant refers to various paragraphs to show why the judge came down in favour of the appellant on inability to speak Tigrinyan, which was tied up with the other credibility points made against her and to which she was found to have made a satisfactory answer.
11. Mr Matthews referred on ground 1 to MA (Ethiopia) [2009] EWCA Civ 289 at paragraph 78: "Inability to return can and should be proved in the ordinary way, on the balance of probabilities". He accepted that the judge had not been assisted by submissions, but he said the tribunal was obliged to get the law right, and had plainly assumed that the lower standard of proof ran through all parts of the case.
12. Mr Matthews did not wish to add to ground 2(a). On (b), he said that the judge made two bad points. Difficulty in funding travel to the embassy did not contribute to proof of the issue of nationality one way or the other. The appellant's pregnancy could not have been an obstacle to her travel throughout the period, as she had several months in which to do so, including a period before she could have become pregnant. As to (c), the judge plainly inverted the burden of proof.
13. Mr Matthews also did not wish to add to ground 3.
14. Summing up, he submitted that the incorrect statement of the standard of proof brought out by ground 1, and the inversion of the burden of proof brought out by ground 2 (c), were errors such that a fresh hearing was required.
15. Mr Winter said further on ground 1 by reference to ST at paragraph 73 that the law did not appear to be settled, but that in any event the position of the appellant had been accepted and by whatever standard of proof it was plain that the judge would have been on the appellant's side. On ground 2(a), the judge dealt with the issue and the ground stretched ST further than it actually went. ST did not require an appellant to attend personally at the embassy. References to the letters showed that the appellant supplied all such details as were available to her. The respondent might disagree on that, but the judge had found the appellant credible. Issues at (b) regarding her travel were immaterial. Ground (c) did disclose some confusion in the wording of the determination, but it was clear that the judge intended a finding in favour of the appellant, and any muddling of expression was irrelevant.
16. Mr Matthews in response pointed out that MA had been considered in ST, which made it rather odd that paragraph 78 of MA was not mentioned when ST dealt with the standard of proof at paragraph 56. Mr Winter had suggested but had not shown that there was any conflict of Court of Appeal authority on the point. The tribunal in Scotland should follow clear authority of the Court of Appeal.
17. I reserved my decision.
18. The case was plainly approached by both sides in the First-tier Tribunal as turning on the credibility of the appellant. The judge explains from paragraph 62 onwards that he has taken careful consideration of all points made. He finds that according to the circumstances there may be Eritrean nationals who do not speak Tigrinya and whose main language is Amharic. He notes that the appellant was subjected to a robust but fair cross-examination and he forms the impression that she was doing her best to provide full and accurate answers. His points about her not travelling to the Ethiopian Embassy arise in considering her general credibility, not as having direct bearing on her nationality.
19. The respondent is I think correct about the standard of proof of nationality, but nothing was made of this in the First-tier Tribunal. It is plain that the judge would have come to the same conclusion. It is a point of law of no bearing on the outcome.
20. Grounds 2 and 3 are based on no more than disagreement on the facts and on infelicities of expression.
21. The case was fought on credibility. The judge was entitled to come down in the appellant's favour. Reading his decision fairly and as a whole, it provides the respondent with the reasons why he did so. The grounds seek to comb through the decision for errors on other matters, with the benefit of hindsight.
22. It is implicit in the decision that the judge also accepted that the appellant had been expelled from Ethiopia with others of "Eritrean" origin (although born before the countries separated) and that even if she had any formal claim to Ethiopian nationality, it would not be recognised by the Ethiopian authorities.
23. The grounds disclose no error of such materiality as to require credibility to be considered afresh by a way of a rehearing.
24. The decision of the First-tier Tribunal shall stand.
25. No anonymity direction has been requested or made.

1 September 2016
Upper Tribunal Judge Macleman