Tribunal decisions

The decision

IAC-AH-CJ/DP/SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13083/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1st November 2016 and 1st March 2017
28th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

R A A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Tettey of Counsel, instructed by Parker Rhodes Hickmotts Ms Khan of Counsel.
For the Respondent: Mr Diwncyz, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant’s appeal against the decision of Judge Fox made following a hearing at North Shields on 8th August 2016.

Background
2. The appellant is a citizen of Eritrea born on 24th May 1980. She arrived in the UK on 3rd June 2011 and claimed asylum, was refused and her subsequent appeal was dismissed by Judge Turnock. On 30th June 2014 she submitted further representations and her asylum claim was again refused on 26th October 2015. She was however granted family leave to remain for 30 months due to expire on 26th April 2018.
3. The judge took as the starting point in the appeal the guidance given by the Tribunal in Devaseelan and he noted that the previous Immigration Judge had found the appellant not to be credible. He then looked at the evidence not before the former judge, including an expert report from Mr Schroeder. He accepted that Mr Schroeder had considerable expertise in Eritrea and Ethiopia but was not satisfied that he was in a position to make detailed findings on the processes in relation to the obtaining and issuing of visas in Saudi Arabia which was significant.
4. He also wrote as follows:
“The appellant comes to this appeal with a negative finding of credibility against her. She has sought to persuade me today that she is Eritrean and that she was married. Under cross-examination she confirmed today that she has in fact possession of the original marriage certificate and that she has had this since 2014. This would appear to have taken Mr Tettey by surprise. She claims to have the document at home. She does not explain why the document was never passed to her solicitors or indeed to Mr Schroeder. If what she says is true it would appear to have been an attempt to deprive not only her own advisors and expert of an opportunity to examine the document claimed to be original, but also the respondent. This impacts considerably against her credibility. I consider her credibility to be further terminally damaged by this admission. She did not bring this document to court today.”
5. The judge noted that the appellant had returned to Eritrea in 2007 and 2010. He wrote:
“The prospect that she may have left Eritrea as one of the privileged few, who were allowed to leave because of their contacts and backgrounds, becomes a live one. She adduces no evidence either directly or through Mr Schroeder that persuades me she could not be one of those privileged few.”
6. The judge accepted that the appellant was Eritrean but concluded that she would not be at risk on return. He was satisfied that her sur place activities in the UK would not generate adverse interests in her from the Eritrean authorities since she was a low level member of the EYGM and had not been involved with them for three years.
7. The appellant has two children with the right to register as British citizens, but the judge noted that she had not raised any Article 8 arguments in her appeal statement.
8. He dismissed the appeal.
The Grounds of Application
9. The appellant sought permission to appeal on a number of different grounds, including that he was wrong to assert that she had been dishonest in attempting to conceal a marriage certificate and failing to refer to the most relevant country guidance case, MO Eritrea [2011] UKUT 00190.
10. Permission to appeal was granted by Judge Lambert for the reasons stated in the grounds on 28th September 2016.
The Hearing
11. At the hearing Mr Diwncyz accepted that the judge had erred in law. It would appear that there was no Presenting Officer at the hearing before Judge Fox. If there had been it would have been possible for the Presenting Officer to confirm that there was an email on the Home Office file referring to the loss of the original marriage certificate by Dr Schroeder. The certificate which the appellant had at home was a copy.
Consideration of whether there is a Material Error of Law
12. I am satisfied that, through no fault of his own, the judge’s credibility findings are unsafe. He was hindered by the lack of a Presenting Officer at the hearing. Had it been explained to him that the respondent knew of the existence of the marriage certificate, and that it had gone astray, he could not have concluded that her credibility was “terminally damaged”.
13. The lack of reference to MO in an Eritrean case is surprising, but the judge was clearly aware of its conclusions and that in itself would not have been sufficient to set the decision aside. He did however fall into error by reversing the standard of proof. If it was the respondent’s assertion that she was one of the privileged few who would be able to secure an exit from Eritrea, it is up to the respondent to prove it, and not for the appellant to establish that she was not one of those few. It may well be that the mere fact that the appellant had entered and exited Eritrea in 2007 and 2010 would be sufficient to discharge the burden upon the respondent, but that is not what the judge said.
14. The decision is set aside.
Findings and Conclusions
15. There was no interpreter available for the appellant, but both parties initially agreed that it would be possible to remake the decision without oral evidence on the basis of the latest country guidance case of MST and Others (National service – risk categories) Eritrea CG [2016] UKUT 00443. Mr Diwncyz said that he stood by the refusal letter. Mr Tettey relied on MST and asked that the appeal be allowed.

16. The appellant was found not to be credible by Judge Turnock in 2011. He concluded that she had not left Eritrea illegally and she was able to return twice and leave by way of properly issued exit visas. That decision would also be the starting point for any decision made by me today. I am therefore unable, as requested by Mr Tettey, to simply remake the decision on the basis of MST and Others. Credibility findings will have to be made, centring on the appellant’s ability to go in and out of Eritrea in 2007 and 2010, and a decision will have to be made afresh as to whether she was able to do so legally or not, and consequently whether she would be at risk on return.
Resumed Hearing
17. At the commencement of the hearing the appellant confirmed that all of her previous witness statements were true. So far as her present activities were concerned she said that she was no longer involved with the Eritrean Youth Global Movement in the UK since the birth of her child and she was unsure as to whether her photograph was on their website or not.
18. She was asked by Mr Diwncyz about her return to Eritrea in 2007 and 2010 and she accepted that she was able to pass through border control both on entering and on leaving. She maintained however that the district authorities in her neighbourhood knew that she was there and gave her a letter saying that they wanted to speak with her. That letter had been produced but subsequently lost. Mr Diwncyz put it to her that the letter may simply have been referring to the details of her father’s estate, since he had recently died, but the appellant said no this was the usual way the authorities proceeded when they wanted to arrest somebody. She knew that it was bad news.
Submissions
19. Mr Diwncyz submitted that the letter could have been in connection with the recent death of the appellant’s father and was not necessarily a summons. The appellant had been able to enter and leave Eritrea without difficulty in 2007 and 2010 which indicated that she had not originally left illegally and would not be at risk on return.
20. Miss Khan accepted that the starting point for credibility was the determination of Judge Turnock in 2015 and he had found her story to lack credibility. She also reminded me that it was not disputed that the marriage certificate and summons had been lost by the expert Dr Schroeder, and so could not be produced. There are a number of emails in the respondent’s bundle referring to that loss.
21. She asked me to accept Dr Schroeder’s report, which was written in 2014 and not before Judge Turnock when he determined the matter in November 2011. He is an acknowledged expert on Eritrea and Ethiopia having worked as an independent researcher on the region since 1975. He has extensive contacts in the region and direct personal experience with many in the diaspora. Since 1978 he has written over 300 reports. He considered that the appellant would be at risk on return.
Findings and Conclusions
22. This case turns on whether Dr Schroeder’s report can properly be relied upon as a statement of Eritrean immigration law.
23. Mr Diwncyz made no challenge whatsoever to Dr Schroeder’s expertise.
24. The appellant has always claimed that she left Eritrea in April 1998. Mr Turnock did not make any specific finding as to whether that date was reasonably likely to be accurate. Unsurprisingly he concentrated his attention on the appellant’s subsequent return to Eritrea in 2007 and 2010. Because she was able to enter and leave without hindrance he concluded that she would not be at risk because she had exited illegally. As she had been able to return twice and leave by way of properly issued exit visas, she was therefore a person who fell within the category of citizens who had given the regime valuable service or who was a trusted family member of the regime’s military or political leadership.
25. According to the appellant, following her flight from Eritrea she went to the Sudan where her mother’s aunt made arrangements for her to travel to Saudi Arabia. She then worked for a Saudi princess. In 2011 she came to the UK with her employers who had been mistreating her during the course of her employment and took the opportunity to escape from them, claiming asylum in August 2011.
26. According to Dr Schroeder, a substantial number of Eritrean labour migrants illegally entered Saudi Arabia with the help of agents on genuine Eritrean passports fraudulently obtained from the Nationality Affairs and Immigration Department in Asmara or Eritrean diplomatic missions abroad.
27. The critical paragraph in Dr Schroeder’s report is at 171 when he writes:
“According to the Eritrean immigration laws valid since 1993 diaspora Eritreans having a regular Eritrean national ID card or passport do not need an entry visa to Eritrea. Diaspora Eritreans holding a foreign passport and no Eritrean national ID card have to apply for a visa like any other foreigner. Their visa applications are carefully scrutinised and the applicants are subjected to considerable pressure to explain why they had not applied for an Eritrean ID card. The Eritrean administrative practice clearly differentiated between those diaspora Eritreans visiting their homeland and those wishing to return for good. Eritreans living abroad visiting their home country could do so without needing a visa but after 2003 they needed an exit visa when they wanted to return to their country of residence. Diaspora Eritreans who indicated to Eritrean diplomatic missions abroad that they wanted to permanently return to Eritrea however were subjected to intensive scrutiny before they were rejected or given the green light. This practice is the one referred to in the United States State Department 2010 Human Rights Report Eritrea quoted in the RFRL and did not apply to diaspora Eritreans only visiting. There was therefore a different level of scrutiny for those Eritreans returning permanently, or who stayed longer than six months, from those who made brief visits.”
28. At paragraph 176 Dr Schroeder writes:
“The Eritrean security registered at the airport every diaspora Eritrean coming to Eritrea for a visit like all other visitors to the country. However in the case of women working as domestic servants in Arab countries, who do have a permission of return to the respective host country, the subsequent screening usually is only superficial and often skipped altogether. It is thus plausible that RAA did not experience problems when she visited her family in 2007. A casual screening of her file with the National Immigration Office would have revealed to the officers of the National Intelligence and Security Office tasked with the follow-up screening that RAA had already been a number of years in Saudi Arabia, had renewed her passport regularly and had paid the national tax and this most likely would have satisfied the screening officials.”
29. Dr Schroeder considered that the same would apply in 2010 when the appellant re-entered Eritrea because her father had died.
30. Dr Schroeder writes at paragraph 193:
“Diaspora Eritreans intending to visit Eritrea and holding an Eritrean passport do not need an entry visa. The quoted passage from the HR Report of the US Government only refers to diaspora Eritreans applying from abroad for a permanent return to Eritrea.”
Paragraph 194:
“It is my experience from various visits in Eritrea since 2001 that for Eritrean women working as domestic servants in Saudi Arabia holding a regular Eritrean passport a Saudi residence permit and a Saudi re-entry permit and having regularly paid the national tax the controls at the airport in Asmara are rather superficial.”
Paragraph 195:
“The requirement for exit visas for visiting diaspora Eritreans was introduced in 2003. However for Eritrean women working as domestic servants in Saudi Arabia holding a regular Eritrean passport, a Saudi residence permit and a Saudi re-entry permit and having regularly paid the national tax the issuance of an exit visa did not entail an intensive screening and usually took place within a few hours.”
31. As she would have been paying the 2% tax required by the Eritrean Government to be paid by the diaspora there was therefore a financial incentive for screening to be less rigorous for those members of the diaspora who were merely entering Eritrea for a short visit and then returning to their host country to work.
32. So far as the appellant’s passport itself is concerned Mr Schroeder writes at paragraph 164:
“It is plausible that the relative of RAA in Sudan organised the travel of RAA to Saudi Arabia to take up work there including travelling on a forged or fraudulently acquired passport, presumably an Eritrean passport. As documented in numerous reports the labour migration to Arab countries is rife with fraudulent practices involving both the agents facilitating the trouble of prospective domestic workers and local employers. The high number of over 150,000 illegal Ethiopian labour migrants expelled in 2013 to 2014 from Saudi Arabia alone testifies to the extent of such practices.”
Paragraph 165:
“According to Eritrean oral sources also a substantial number of Eritrean labour migrants illegally entered Saudi Arabia with the help of agents on genuine Eritrean passports these agents had fraudulently obtained from the Nationality Affairs and Immigration Department in Asmara or Eritrean diplomatic missions abroad. Such passports might be issued on the real identity or on a fictitious one.”
33. And finally at paragraph 192 Mr Schroeder concludes:
“Most likely RAA travelled with a genuine passport on her name to Saudi Arabia which would have been secured by the agent facilitating her transfer to Saudi Arabia. In Sudan such agents have the necessary contacts to obtain such genuine passports from the Eritrean Embassy for their clients usually using personal contacts to an Eritrean official there and often involving bribery. In Saudi Arabia the employer of RAA later would have secured the renewals or issuance of a new passport through their own agents. As long as RAA had paid her national tax there would not have been a reason for the Eritrean consulate in Jeddah not to issue her a new passport.”
34. So far as the illegal exit itself is concerned, again, according to Dr Schroeder, in April 1998 the appellant could only have left Eritrea illegally. At that time the provisions of Proclamation 82/195 Article 17 on travel abroad for people in the age brackets for military service had already been suspended as part of the hidden mobilisation in preparation for an anticipated conflict with Ethiopia or Sudan.
35. In the latest country guidance case, MST and Others (National service – risk categories) Eritrea CG [2016] UKUT, the Tribunal held that the categories of lawful exit have not significantly changed since MO.
36. The appellant does not fall readily into any of those categories.
37. MST reaffirmed that it continued to be the case that most Eritreans who left Eritrea since 1991 had done so illegally and according to the unchallenged evidence of the expert it would not have been possible in April 1998 for the appellant to have left in any other way.
38. In conclusion, viewed in the light of this report, which is unchallenged by the respondent, there is a perfectly reasonable explanation for the appellant’s ease in returning to Eritrea in 2007 and 2010 for brief visits. The logical inference is not that she was one of the privileged few who was able to secure legal exit from Eritrea but that as a returnee for a temporary purpose she would be subject to only superficial screening.
39. I rely on the evidence of Dr Schroeder, and conclude that the appellant’s returns to Eritrea in 2007 and 2010 did not indicate that she was within a category of persons able to exit Eritrea legally. He has provided a proper explanation for the matters which concerned the previous Immigration Judge. I am not required to make any findings on the substance of the appellant’s story. I need only be satisfied that she left illegally and that she is of draft age and accordingly would be perceived on return to be a draft evader or deserter from national service and as a consequence face a real risk of persecution or serious harm. Since there is no basis at all upon which to depart from Dr Schroeder’s view, and the respondent did not suggest that I do so, the appeal must be allowed.

Notice of Decision
40. The original judge erred in law and his decision has been set aside. It is re-made as follows. The appellant’s appeal is allowed.

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 28 March 2017

Deputy Upper Tribunal Judge Taylor