Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11360/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 25 October 2016
on 26 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

A K A
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr K Forrest, Advocate, instructed by Katani & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Fowell, dismissing his appeal against refusal of recognition as a refugee from Eritrea.
2. Permission to appeal to the UT was granted on 7 grounds. However, Mr Forrest concentrated on two submissions: (1) inadequacy of reasoning, or lack of evidence, to support the finding that the appellant had not done all that might be expected of him to show that he does not have Ethiopian nationality; it was not for him to prove that point; and (2) error in identifying the applicable country guidance and background evidence, in particular as to the age at which an Eritrean may be liable to national service, which may be as young as 7 or 8, and does not apply only at age 17.
3. Mr Matthews submitted that the appellant was born in a place then in Ethiopia, prior to the existence of Eritrea as a state, of parents of Ethiopian citizenship and so has been an Ethiopian citizen since birth. He cited MA (Ethiopia) EWCA Civ 289 at paragraph 78 as establishing that it was for the appellant to show any deprivation of citizenship, and to do so on the balance of probability. It was not enough to show only that some approach had been made to the Ethiopian Embassy.
4. Mr Matthews accepted that country guidance and background evidence is that conscription in Eritrea may take place from an early age, so that the judge's reasoning based on age on (alleged) departure from Eritrea was suspect. He also acknowledged that there was substance in the criticism of the judge's rejection of the evidence of a supporting witness at paragraph 35; someone might easily not know whether another person of similar age was older or younger, and some description of the allegedly shared neighbourhood had been given.
5. Mr Matthews was unable to submit that the case had been bound to fail on the Ethiopian citizenship issue alone, because the evidence was intertwined, and said that the case should be remitted.
6. That is the outcome which was sought for the appellant, although not for precisely the same reasons.
7. At the fresh hearing parties should be ready to address the issue of Ethiopian nationality in the context of onus and standard of proof, and to assess the case according to the most recent country guidance (a further case is about to be published).
8. The decision of the First-tier Tribunal is set aside. None of its findings are to stand. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
9. The member(s) of the FtT chosen to consider the case are not to include Judge Fowell.
10. An anonymity direction was made in the FtT, although no reason is given for departing from the usual principle of open justice unless a need for anonymity is shown. The matter was not addressed in the UT, so I have preserved anonymity in this decision.

25 October 2016
Upper Tribunal Judge Macleman