Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11256/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 4th April 2017
On 21st April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr Abubeker Mehamud
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Khan, Counsel, Broudie Jackson and Canter
For the Respondent: Ms Aboni, Home Office Presenting Officer

DECISION AND REASONS
1. When this matter last came before me I found that the decision of the First-tier Tribunal Judge contained a material error of law solely with regard to the failure of the First-tier Tribunal Judge to follow the country guidance set out in ST (Ethnic Eritrean – Nationality – Return) Ethiopia CG [2011] UKUT 00252 (IAC) following on from the Court of Appeal’s judgment in MA (Ethiopia) v SSHD [2009] EWCA Civ 289.
2. I gave directions that the credibility findings made by the First-tier Tribunal Judge were preserved including the position that the Appellant would find himself in if it is shown that on balance he is an Eritrean national and not an Ethiopian.
3. That the matter remains in the Upper Tribunal reserved to myself and be relisted on the first available date 63 days hence with an ELH of three hours.
4. That at the request of the Appellant’s legal representatives and with the consent of the Secretary of State’s representative the restored appeal be heard at Manchester and not Liverpool due to the difficulty that the Appellant has in getting from his home to Liverpool.
5. In finding therein that there was a material error of law in the decision of the First-tier Tribunal Judge I preserved the credibility findings which included the position that the Appellant would find himself in if it was shown that on balance he is an Eritrean national and not an Ethiopian. I had noted that the decision of the First-tier Tribunal Judge contained a material error of law only with regard to the failure of the First-tier Tribunal Judge to follow the country guidance set out in ST (Ethnic Eritreans – nationality – return) Ethiopia CG [2011] UKUT 00252 (IAC). It is on that basis that the appeal comes back before me for further hearing the matter having been reserved to myself for rehearing on the limited point in the Upper Tribunal. The Appellant appears by his instructed Counsel Ms Khan. Ms Khan is familiar with this matter having appeared before me on the error of law hearing. In this instance the Secretary of State attends by her Home Office Presenting Officer Ms Aboni.
The Issue
6. The issue extant is whether or not the Tribunal is satisfied that the Appellant has taken all reasonable steps to confirm his nationality. I am referred to the guidance given in the headnote to ST. In particular the following paragraphs:-
“(4) Although, pursuant to MA (Ethiopia), each claimant must demonstrate that he or she has done all that could be reasonably expected to facilitate return as a national of Ethiopia, the present procedures and practices of the Ethiopian Embassy in London will provide the backdrop against which judicial fact-finders will decide whether an appellant has complied with this requirement. A person who is regarded by the Ethiopian authorities as an ethnic Eritrean and who left Ethiopia during or in the immediate aftermath of the border war between Ethiopia and Eritrea, is likely to face very significant practical difficulties in establishing nationality and the attendant right to return, stemming from the reluctance of the Ethiopian authorities to countenance the return of someone it regards as a “foreigner”, whether or not in international law the person concerned holds the nationality of another country (paragraphs 93 to 104).
(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).”
Evidence
7. I am further referred to a bundle of evidence produced by the Appellant’s legal representatives on his behalf. That consists of a supplementary witness statement dated 2nd March 2017. The Appellant attends before me and both adopts and confirms that witness statement as his further evidence-in-chief. Ms Aboni has no cross-examination. That witness statement sets out the steps taken by the Appellant in approaching the Ethiopian Embassy in London with regard to recognition as an Ethiopian national. I note that the steps he took are set out at paragraphs 3 to 7 and they are supplemented by photographs taken both outside and inside the Ethiopian Embassy and by a business card presented to him on behalf of the “head of consular” at the embassy. In addition there is a letter from Mr Binyam Debesay who states he is a friend of the Appellant who visited with him to the embassy. Mr Debesay attends court. He is not called to give evidence and I give his short letter read through consideration. I note that there is a photograph taken at the embassy showing his attendance with the Appellant and there is no evidence before me to show that it is not reasonable to conclude that he did so attend albeit that in itself adds little to the Appellant’s case.
Submission/Discussion
8. Ms Aboni relies on the original Notice of Refusal and notes the approach taken by the Appellant and his instructed solicitors with regard to discharging the burden of proof. She submits that the updated evidence adds little weight to the Appellant’s claim that he is not entitled to Ethiopian nationality and submits that there is no evidence produced relating to the “trafficking of letters from the Appellant’s solicitors to the embassy”. She asked me to find that the burden of proof has not been discharged and to dismiss the Appellant’s appeal.
9. Ms Khan indicates that the embassy have not been helpful in assisting the Appellant to have his questions answered but that that is unfortunately accepted as being the approach regularly adopted by the Ethiopian Embassy. She takes me to the material that has been provided pointing out, following the finding that there was a material error of law the Appellant’s legal representatives wrote to Mr Tesfay asking for confirmation as to whether or not the Appellant or his parents were Ethiopians or had Ethiopian nationality. She refers me to the copy of the letter on file at B2 of the Appellant’s bundle and points out that it is clearly marked that that letter was sent by recorded delivery. That letter was not responded to and on 8th March 2017 a further letter was submitted to the embassy. She points out that contrary to the suggestion made by the Secretary of State there is clear evidence of the trafficking of that letter and that it was sent on 8th March and was received and signed for on 10th March. She again points out that unfortunately in a very unhelpful approach the Ethiopian Embassy have failed to respond.
10. She comments that the Appellant’s evidence is unchallenged in cross-examination and that the Appellant has taken two trips to London to confirm his nationality and that the bundle shows evidence of transport and photographs showing his attendance. She further points out that two letters have been written giving the embassy the information to enable them to answer the query but they have failed to reply.
11. She emphasises that the Appellant’s parents were born in Eritrea and that all reasonable steps have been taken by three separate attempts i.e. one personal visit and two letters to see if the Appellant’s Ethiopian nationality could be confirmed. She points out that the burden of proof in this matter is on the balance of probabilities and submits that the burden of proof has in this instance been discharged. Whilst accepting that that burden needs to be discharged by the Appellant she points out that that does not obviate the Secretary of State from participating in the process as is set out at paragraph 107 of ST and that it is open to the Secretary of State to liaise with the embassy but they have chosen not to do so. She submits that the Appellant has followed all reasonable steps as set out in ST and asks me to find that the Appellant was not entitled to Ethiopian nationality and therefore to allow the appeal.
Findings on the Rehearing
12. As set out above the issue before me is a narrow one. The starting point are the findings of the First-tier Tribunal Judge which remain undisturbed namely that there is an acceptance that the credibility findings made by the First-tier Tribunal Judge are unchallenged by the Secretary of State. Thereafter the Appellant has shown by the documentation produced that he has made extensive enquiries both personally and through his instructed solicitors to find out whether or not it is accepted by the Ethiopian authorities as to whether or not he has Ethiopian nationality. The burden of proof is on the balance of probabilities. Despite Ms Aboni’s submission I find that the Appellant has personally attended at the embassy and that this is shown both within his witness statement as his evidence-in-chief, the photographic evidence that is produced in his support, the production of the business card that was handed to him at the embassy and by his production of receipts relating to his travel to London.
13. I discount the suggestion submitted by the Secretary of State that there is no proof that the Appellant’s solicitors have followed up on that visit. There is clear proof. Solicitor’s letters are produced on file and show that they have been sent by recorded delivery. So far as the latter one is concerned Ms Khan has given evidence of the tracking of that letter. To suggest that there is no proof that those letters were sent would, if that were to be true, raise issues of honesty and integrity of the instructed solicitors. There is absolutely no evidence whatsoever, nor would I remotely expect there to be, to suggest that such contentions could be remotely maintained. The Appellant’s instructed solicitors are well-known as a firm of the upmost integrity and to impute otherwise would require the most cogent of evidence, none of which is present. I am consequently satisfied that quite proper and genuine enquiries were made by the Appellant’s solicitors after the Appellant’s visit to the embassy.
14. The Secretary of State, through her Home Office representatives, accepts that if the Appellant cannot be returned to Ethiopia then the Appellant will succeed. The question arises as to whether the Appellant has done sufficient to meet the enquiries required and set out in the headnote and guidance of ST. I am satisfied for all the above reasons that he has done so. It is unfortunate and not the Appellant’s fault that the Ethiopian Embassy have failed to engage with the enquiries made.
15. Further it is clear that the option is open and available to the Secretary of State to make her own enquiries and in this instant case the Secretary of State has chosen not to do so. For all the above reasons I am satisfied that the Appellant has discharged the burden of proof. The conclusion consequently must inevitably follow that there is no evidence whatsoever before me to show that the Appellant can be returned to Ethiopia. The Appellant therefore meets the requirements as set out in the headnote of ST. I remind myself that when this matter first came before Immigration Judge Saffer at Bradford in June 2016 he allowed the Appellant’s appeal both on asylum and human rights grounds. In such circumstances the correct way of concluding the decision is to dismiss the appeal of the Secretary of State and to confirm that the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision

The appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained allowing the Appellant’s appeal on both asylum and human rights grounds.

No anonymity direction is made.

Signed Date 18th April 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 18th April 2017

Deputy Upper Tribunal Judge D N Harris