Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/11198/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 5th December 2016
On 15th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Bethlehem [A]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mrs H Aboni, Senior Home Office Presenting Officer
For the Respondent: Mr J Dixon of Counsel, instructed by Duncan Lewis Solicitors

DECISION AND REASONS

Introduction and Background
1. The Secretary of State appeals against the decision of Judge Chapman of the First-tier Tribunal (the FTT) promulgated on 23rd June 2016.
2. The Respondent before the Upper Tribunal was the Appellant before the FTT and I will refer to her as the Claimant.
3. The Claimant arrived in the United Kingdom on 25th February 2015 and claimed asylum. She claimed to be Eritrean with a date of birth of 23rd June 1993. The Claimant feared return to Eritrea because she is a Pentecostal Christian and would face persecution because of her religion, and also because she would be persecuted by the Eritrean authorities as a person who left the country illegally, thereby evading national service.
4. The application was refused on 31st July 2015 and the appeal was heard by the FTT on 23rd June 2016.
5. The FTT heard evidence from the Claimant and a witness Daniel Haile. Mr Haile confirmed that he had been granted refugee status in the United Kingdom, and he is an Eritrean citizen, and a Pentecostal Christian. He met the Appellant in a church in Sudan in January 2007, and they subsequently met again in a church in the United Kingdom in December 2015. He confirmed to the FTT that the Appellant is an Eritrean citizen and Pentecostal Christian.
6. The FTT found both the Appellant and Mr Haile to be credible and consistent. It was agreed by the parties that if the Appellant is Eritrean she would be at risk and would be entitled to asylum.
7. The FTT found that the Appellant is Eritrean, and therefore her appeal was allowed.
8. The Secretary of State applied for permission to appeal to the Upper Tribunal. The grounds are succinct contending that the FTT had erred by failing to apply the country guidance case of ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 252 (IAC). In failing to apply the country guidance decision, it was submitted that the FTT had materially erred in assessing the Appellant's nationality and credibility.
9. Permission to appeal was granted. Following the grant of permission the Claimant lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contending in summary that the Secretary of State's application amounted to a disagreement with the findings made by the FTT, but did not disclose a material error of law. It was contended that the FTT decision was adequately reasoned and should stand.
10. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision should be set aside.

The Secretary of State's Submissions
11. Mrs Aboni relied upon the grounds contained within the application for permission to appeal.

The Claimant's Submissions
12. Mr Dixon accepted that ST had been referred to in the refusal decision and had not been addressed by the FTT. However, that without more did not amount to a material error of law.
13. Mr Dixon pointed out that the FTT had found the Appellant to be credible, and there had been no challenge to the credibility findings made by the FTT. The Claimant had explained in paragraph 29 of her witness statement that she had in fact visited the Ethiopian Embassy and was told that she was not entitled to Ethiopian nationality.
14. Mr Dixon submitted that as the FTT had accepted the Claimant's credibility, it must therefore have accepted the contents of paragraph 29, and therefore the Claimant had satisfied the procedure and guidance referred to in ST.
15. Mr Dixon's case was that although it was an error not to make reference to ST, and the fact that the Claimant had visited the Ethiopian Embassy, given the circumstances, this was not a material error.

The Secretary of State's Response
16. Mrs Aboni submitted that there appeared to be no consideration of the Claimant's claim to have visited the Ethiopian Embassy, and therefore the FTT had materially erred in law, and the decision should be set aside and remitted to the FTT to be re-made.

My Conclusions and Reasons
17. It is common ground that ST is a country guidance decision, and was referred to at paragraph 26 of the refusal decision. I set out below paragraph 5 of the headnote to ST;

"(5) Judicial fact-finders will expect a person asserting arbitrary deprivation of Ethiopian nationality to approach the embassy in London with all documentation emanating from Ethiopia that the person may have, relevant to establishing nationality, including ID card, address, place of birth, identity and place of birth of parents, identity and whereabouts of any relatives in Ethiopia and details of the person's schooling in Ethiopia. Failing production of Ethiopian documentation in respect of such matters, the person should put in writing all relevant details, to be handed to the embassy. Whilst persons are not for this purpose entitled to portray themselves to the embassy as Eritrean, there is no need to suppress details which disclose an Eritrean connection (paragraph 105)."
18. The Secretary of State's case was that the Claimant was Ethiopian not Eritrean, and therefore the Claimant needed to attend at the Ethiopian Embassy to see whether she would be accepted as an Ethiopian citizen. The Claimant had not taken this course of action prior to refusal of her claim on 31st July 2015.
19. The FTT summarised the Respondent's reasons for refusal at paragraph 10 noting that the ST point had been relied upon, in that the Claimant;
"Has not provided any evidence from the Ethiopian Embassy to verify her claim to be Eritrean in accordance with ST".
20. Thereafter there is no mention in the FTT decision of ST. It is an error of law not to follow a country guidance case, if the issue upon which guidance is given, is relevant to the case being considered. It would appear that in this case, the issue in ST was relevant.
21. The Claimant had in fact addressed this issue, as although when her application was refused, she had not visited the Ethiopian Embassy, she had subsequently done so and I set out below paragraph 29 of her witness statement which was before the FTT;
29. "I attended Ethiopian Embassy in (sic) 17th March 2016. I was given a form to complete and they asked me if I have any documents, for example birth certificate or passport that confirm that I am an Ethiopian national. They also asked me details about my life and my background. I was told that because I do not have any documents confirming that I am not an Ethiopian national I am not entitled for Ethiopian nationality. They did not provide me with any documents confirming the same."
22. There would appear to be a typing error in the above paragraph, and that presumably the Appellant meant to say that because she did not have any documents confirming that she is an Ethiopian national, she is not entitled to Ethiopian nationality.
23. It is therefore evident that following refusal of her asylum claim, the Appellant contends that she did go to the Ethiopian Embassy, and was told that she was not entitled to Ethiopian citizenship. The application for permission to appeal may not have been made, had the FTT recorded this.
24. I find that the FTT erred in not recording and considering the fact that the Claimant had visited the Ethiopian Embassy in an attempt to follow the guidance given in ST, but I do not find that in this case, the error is material.
25. The FTT recorded in paragraph 37 that the evidence given by the Appellant was "consistent, plausible and credible."
26. The FTT found at paragraph 38 that Mr Haile was a credible witness.
27. I therefore conclude that the FTT accepted the contents of the Claimant's witness statement, and therefore accepted that she had visited the Ethiopian Embassy, and was told that she was not entitled to Ethiopian citizenship. I cannot see, in the circumstances, that the FTT's failure to record this amounts to a material error of law. The Claimant's evidence was that she had visited the Ethiopian Embassy, and the FTT found her to be credible and accepted her evidence.
28. The grounds submitted by the Secretary of State do not disclose a material error of law in the FTT decision.

Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision. The Secretary of State's appeal is dismissed.

Anonymity

No anonymity direction was made by the FTT. There has been no request to the Upper Tribunal for anonymity, and I see no need to make an anonymity order.

Signed Date

Deputy Upper Tribunal Judge M A Hall 6th December 2016

TO THE RESPONDENT
FEE AWARD

No fee has been paid or is payable. There is no fee award.

Signed Date

Deputy Upper Tribunal Judge M A Hall 6th December 2016