Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11372/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 15th September 2016
On 14th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

M A T
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Sharif (Solicitor)
For the Respondent: Ms H Aboni (HOPO)

DECISION AND REASONS

1. The Appellant is a female, a citizen of Eritrea (claimed), and her date of birth is given as 21st January 1990. She appealed to the First-tier Tribunal against the decision of the Respondent, taken on 12th August 2015 against rejection of her asylum claim, and she claims that the UK would be in breach of its international obligations under the Refugee Convention and the European Convention on Human Rights under this decision.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Asjad (promulgated 9th May 2016), who concluded that the Appellant is not an Eritrean national as claimed, but an Ethiopian national, and is not a refugee, as she has no personal knowledge about Eritrea and appears to have rehearsed and memorised what knowledge she does have (at paragraph 27).
3. Permission to appeal was granted on 3rd June 2016 on the basis that it is now well established that when the Respondent asserts that the Appellant's nationality is other than that claimed, the burden of proof rests with her to demonstrate that on a balance of probabilities, and there was nothing in the decision to show that the judge had applied that standard.
4. At the hearing before me on 15th September 2016, Mr Sharif relied upon his latest skeleton argument in the bundle. He made the following submissions.
5. First, the judge had failed to assess the nationality of the Appellant in the light of the Eritrean Nationality Proclamation which stated that any person born to a father or mother of an Eritrean origin in Eritrea or abroad is considered to be an Eritrean national by birth (see Article 2(2)).
6. Second, in MA (Disputed nationality) Ethiopia CG [2008] UKAIT 00032, it was held it was held that, in any case of disputed nationality the first question to be considered should be: "Is the person de jure national of the country concerned?" This question is to be answered by examining whether the person in question satisfied the nationality law requirements of his or her country. It may be relevant to examine the evidence of what the authorities in the Appellant's country of origin had done in respect of his or her nationality. In this respect, the judge had failed to consider whether the Appellant would be considered a de jure national of Eritrea or not.
7. Third, the judge made a material error of law in considering the Appellant's purported birth certificate in isolation because under the principles set out in Tanveer Ahmed this document had to be considered in the context of all the other evidence in the round.
8. Fourth, the judge appeared to have accepted that the Appellant had a limited understanding of Tigrinya being spoken (paragraph 28) but the judge also accepted that the Appellant had some knowledge about Eritrea (paragraph 29). This meant that the judge had given inadequate reasoning for not accepting that the Appellant was an Eritrean national as claimed. The judge also gave inadequate reasoning in respect of the conclusion that the Appellant was not a Pentecostal Christian because the Appellant was able to answer some questions that were relevant to Christianity (paragraph 33). Her reasoning was also inadequate with respect to the evidence given by [MA] who had explained that she had seen the Appellant in Assab, Eritrea, but the judge said that he could only attach limited weight to this evidence (paragraph 35) without explaining what that limited weight would be in the light of such important testimony.
9. Fifth, the judge failed to consider the risk on return as a failed asylum seeker that the Appellant would be subject to in the light of MO (Illegal exit - risk on return) Eritrea CG [2011] UKUT 190. The judge did not give a reason as to why it was considered that the Appellant comes within one the "very limited exceptions" who is not at risk.
10. Sixth, the judge failed to apply the correct standard of proof, because the judge found that the Appellant was an Ethiopian national and not an Eritrean national (at paragraph 37) but in the case of Jamila Omar Hamza [2002] UKIAT 05185 it was decided that if the judge is to make a decision on nationality of the Appellant then "he must bear in mind that it is going to make a positive finding against the Appellant, then he must do so not on the asylum standard, but on a higher standard which would be the balance of probabilities". The judge had failed to do so.
11. For her part, Ms Aboni relied upon the Rule 24 response of the Respondent Home Office and submitted as follows. First, the judge had properly directed himself at paragraph 3 and confirmed that all the evidence and submissions were taken into account. Whilst the judge noted that the birth certificate was viewed in isolation, it would appear to relate to its internal flaws namely that the date of birth was inconsistent with the Appellant's claim and the fact that the date of registration was 4th January 2016. Second, in the alternative, if the judge has erred it was clearly not material given the very significant and well reasoned adverse credibility findings against the Appellant at paragraph 28 onwards. These are not affected by any error of law. Third, the judge analysed the evidence of the Appellant's witness and accorded it little weight because there was no evidence to underpin the witness's account of her successful asylum claim. It was open to the judge to conclude that friendship was a like reason for her support. With respect to the language of Tigrinya, this was spoken widely and the judge considered this (at paragraph 28) and noted that this Appellant still did not speak Tigrinya. Reference was made to the fact that the Appellant had textbook knowledge of matters that could be learnt by heart but did not know where the ocean was, which she would have known from her childhood. The point about the Appellant not being able to show that she is a Pentecostal Christian was important because Christians per se are not persecuted and only Pentecostal Christians are, and the Appellant was unable to satisfy the judge in this respect.
My Consideration of the Appeal
12. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are those given in the grant of permission, namely, that the Respondent has asserted that an Appellant's nationality is other than that which is claimed, but the burden in this respect falls squarely on the Respondent Secretary of State, and there is nothing in the decision to show that the judge has applied that standard. This is important in this case because the Appellant did have some knowledge of Eritrea. Moreover, the evidence of [MA] was that the Appellant had been seen by her in Eritrea. In addition, the Appellant did display "textbook knowledge" of some aspects of Eritrea. It may well be that another judge considering this appeal may well still come to the same decision but it is important that the correct guidelines are applied. I am satisfied on the basis of the submissions made by Mr Sharif that they were not applied in this case.
13. In considering whether I should remake this decision I have had regard to the findings of the original judge, the evidence before him, and the submission that I have heard today. I am satisfied that this is a case where under Practice Statement 7.2 this is an appropriate case where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal (see 7.2(a)). Accordingly, this appeal is to be remitted back to the First-tier Tribunal, to be heard by a judge other than Judge Asjad.
Notice of Decision
14. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge.
15. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal, to be heard by a judge other than Judge Asjad.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Juss 12th October 2016