Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11567/2015

THE IMMIGRATION ACTS

Heard at: Birmingham Employment Tribunal
Determination Promulgated
On: 18 November 2016
On: 24 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

EP
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Naz, Counsel instructed by Morden Solicitors
For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Parkes in which the Judge dismissed the appeal of the Appellant, who claims to be a citizen of Eritrea, against the Secretary of State's decision to refuse asylum and set removal directions.
2. The Appellant arrived in the United Kingdom on 12 March 2015 and claimed asylum the same day. His application was refused by the Respondent on 7 August 2015. The Appellant exercised his right of appeal against this decision and this is the appeal that was heard before Judge Parkes on 30 March 2016 and dismissed. The Appellant's application for permission to appeal against the First-tier Tribunal Judge's decision was granted on 13 May 2016 by Designated Judge MacDonald in the following terms
"The grounds of application state that the judge ignored the terms of the appellant's witness statement as to why he only spoke Amharic. Furthermore, the judge failed to take into consideration that the Ethiopian Embassy failed to provide any written documentation to those who are not Ethiopian nationals. In addition, the appellant had given his reasons for not claiming asylum in Greece and France which the judge did not consider. Other grounds were put forward.
The judge noted that the appellant's claim for asylum turned on his nationality (paragraph 16) but it appears he may not have considered the explanations given by the appellant as noted above. While the grounds correctly say it is a material error of law to require corroboration, the judge merely said that there was no supporting evidence from his uncle and that absence did not assist his case (paragraph 25).
However, for the reasons stated, the judge may have erred in law in not fully considering the appellant's evidence and permission to appeal is therefore granted, for clarity, on all grounds."
3. By a rule 24 response dated 20 May 2016 the Respondent opposed the appeal.
4. At the hearing before me Ms Aboni appeared for the Secretary of State and Ms Naz represented the Appellant and submitted a written skeleton argument.
Background
5. The Appellant is 22 years old and claims to be a citizen of Eritrea and a Pentecostal Christian. According to his account he was born in Campo Sudan, Assab and his mother died at the time of his birth. His father was a lorry driver so had to stay away from home for days at a time. The Appellant's father employed an elderly lady who was an Amharic speaker to care for the Appellant, Amharic being the predominant language in the area. When the Appellant was 2 years old he moved with his father and the carer to Addis Ababa in Ethiopia where they remained until 2000 when, like other Eritreans living in Ethiopia, they were deported to Eritrea. They remained in Eritrea until 2003 when following a police raid on a Pentecostal service that the Appellant was attending with his uncle and his carer he fled to Sudan. The Appellant remained there for the next 8 years and six months. He left Sudan with the help of an agent flying first to Turkey and then moving on to Greece before travelling through Europe to the United Kingdom where he claimed asylum. The Appellant fears that on return to Eritrea he will be persecuted due to his Pentecostal religion and due to the fact that he left Eritrea illegally.
6. In dismissing his appeal, the First-tier Tribunal Judge found that the Appellant's claim turned on his nationality. The Judge found that the Appellant's failure to speak an official language of Eritrea militated against his claim to be Eritrean but that his evidence was consistent with him being an Ethiopian living in Eritrea. The Judge did not believe that if the Appellant were an Eritrean national living in Eritrea with a father of that origin he would be unable to speak Tigrinya. The Judge also found that he could not attach any weight to the Appellant's evidence of being denied proof of nationality by the Ethiopian Embassy.
Submissions
7. Ms Naz referred to the grounds of appeal. The issues are language and nationality. The Judge found that the Appellant was not an Eritrean national because he spoke Amharic but failed to take account of his detailed witness statement explaining why that is the language he speaks. Answering questions from me Ms Naz said that the Appellant lived in Eritrea from birth until the age of 2 and then from age 6 to age 9. It was also wrong of the Judge not to take proper account of the fact that the Ethiopian Embassy did not consider the Appellant to be Ethiopian. Having made unsafe credibility findings, the Judge has then failed to consider country guidance in dealing with risk on return.
8. For the Respondent Ms Aboni referred to the rule 24 notice and said that the Judge was entitled to find that the Appellant's inability to speak the language of Eritrea was sufficient for him to reach the finding that the Appellant was not Eritrean. The fact that the Ethiopian Embassy did not issue anything in writing had no effect and having found that the Appellant was not Eritrean there was no need for the Judge to consider Eritrean country guidance in assessing risk on return.
9. I said that the appeal would be allowed. The Appellant gives detailed reasons for his failure to speak Tigrinya in his witness statement. The Judge appears to accept the chronological aspects of the Appellant's account but does not refer to his witness statement and explain why he does not accept the Appellant's account of why he speaks Amharic. I reserved my written decision.
Error of law
10. The Appellant's account is clearly given in his witness statement. He claims to be a person who was born in the Campo Sudan district of Assab in Eritrea and that this was an Amharic speaking area. His mother died when he was born and so his father, a lorry driver hired an elderly Amharic speaking lady as his carer. He moved with his father and the carer to Addis Ababa at the age of 2 and then when he was 6 they, along with other Eritreans were deported back to Eritrea. He stayed in Assab again until the age of 9 when he left the country.
11. The Appellant's account as briefly summarised above gives clear and plausible reasons why he speaks Amharic rather than Tigrinya. In making his findings the Judge does not address any of the reasons given and as such does not make any findings that address those reasons. Indeed, the findings made seem to ignore or overlook the Appellant's evidence. The Judge finds that if the Appellant were an Eritrean national living in in Eritrea with a father of that origin he would be able to speak the language of Eritrea. This ignores the Appellant's claim that his father was largely absent (the question of what language his father spoke does not appear to have been raised), that he spent only the years from birth to 2 and 6 to 9 in Eritrea, that his carer was Amharic speaking and that Campo Sudan (as opposed to Assab in general) is an Amharic speaking area.
12. It is also a concern that the Judge does not address the letter attesting the Appellant's nationality from the Eritrean Community in Lambeth. As such it is not clear whether this has been overlooked or discounted.
13. In my judgment the apparent failure of the Judge to consider and address the Appellant's evidence is a material error of law. It is possible that a Judge assessing the Appellant's evidence may have reached a different conclusion.
14. The effect of this error must be to render the credibility findings as a whole unsafe. Due to the nature of the error of law and in accordance with the President's direction it is appropriate for this matter to be remitted to the First-tier Tribunal for hearing de novo with no findings preserved although following MST and others (National Service - risk categories) CG [2016} UKUT 443 (IAC) the only real issue given the Appellant's age is likely to be his nationality.

Conclusion
15. The decision of the First-tier Tribunal involved the making of an error of law for the reasons set out above.
16. I set aside the decision of the First-tier Tribunal and in accordance with the President's direction this matter is suitable for and should be remitted to the First-tier Tribunal.

Signed: Date:

J F W Phillips
Deputy Judge of the Upper Tribunal