Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Number: UI-2021-001522
PA/51060/2021 [IA/03063/2021]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 9 May 2022
On the 27 June 2022

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SA (ETHIOPIA)
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Fisher, instructed by Duncan Lewis Solicitors
For the Respondent: Ms A Everett, Senior Presenting Officer

DECISION AND REASONS

1. The outcome of this appeal was not in dispute between the parties and this decision is in short form as a result.

2. The appellant appeals, with permission granted by the First-tier Tribunal, against Judge Aldridge’s decision to dismiss her appeal against the respondent’s refusal of her claim for international protection.

Background

3. The appellant is an Ethiopian national who has been in the United Kingdom since September 2013. She claimed asylum on 14 September 2003 and stated that she was at risk on return to Ethiopia as a result of her activities in support of the Oromo Liberation Front (“OLF”). She stated that she had been arrested on account of those activities and that she had been ill-treated in detention, only to be released two days later after a bribe was paid by a family member. She made her way to the UK, entering clandestinely before claiming asylum.

4. The application for asylum was refused and an appeal was dismissed by Judge Amin on 26 March 2014. Judge Amin did not accept that the appellant had joined the OLF or that she had ever come to the attention of the Ethiopian authorities. Permission to appeal against that decision was refused by the FtT and the Upper Tribunal and the appellant became appeal rights exhausted on 30 May 2014.

5. The appellant did not leave the United Kingdom. In March 2018, her solicitors made further submissions on her behalf. It was submitted, in basic outline, that the appellant would be at risk on return to Ethiopia on account of her Oromo ethnicity and her sur place activity in the United Kingdom on behalf of the OLF. The respondent did not accept that the appellant was of Oromo ethnicity. Nor did she accept that she would be at risk on account of her sur place activity.

The Appeal to the First-tier Tribunal

6. The appellant appealed and her appeal was heard by Judge Aldridge (“the judge”), sitting at Hatton Cross on 23 November 2021. The appellant was represented by counsel (Ms McCarthy), who relied upon a skeleton argument drafted by her colleague, Ms Griffiths. There was a sizable appellant’s bundle, more than 100 pages of which was occupied by an expert report written by Karen O’Reilly, who describes herself as a ‘country expert for Ethiopia’. She has worked extensively for the UNHCR in Africa and was the 2020-2021 Ethiopia expert for the Bertelsmann Transformation Index.

7. The judge heard oral evidence from the appellant and submissions from the representatives before reserving his decision.

8. In his reserved decision, the judge accepted that the appellant is of Oromo ethnicity but did not accept that she was in any way active for the OLF in Ethiopia. In so finding, the judge demonstrably adopted the approach required by Devaseelan [2003] Imm AR 1 in considering Judge Amin’s decision. He attached limited weight to a letter from the OLF. He also reduced, seemingly to nil, the weight which he was prepared to attach to Ms O’Reilly’s report for reasons which it is necessary to reproduce in full:

Whilst I note the experience of the expert in respect of her involvement processing resettlement applications from Ethiopians whilst in another African country. I note with great concern that it would appear that there is no suggestion that the expert has ever visited Ethiopia. Her experiences appear to be anecdotal, and she talks of being an expert in respect of Ethiopia and ‘a number of other countries in Africa’, unsurprisingly, my concern is raised that her claimed expertise is more general in Africa as opposed to specifically in Ethiopia. I also note that it would appear that her instructions are based purely on written submissions and evidence provided to her by those representatives that the appellant instructs. I consider it a fundamental flaw in the report that it has no basis from interviewing the appellant directly, yet the report draws conclusions in respect of the plausibility of the appellant’s claim and appears to provide reason why the appellant may know little of the details of the OLF whilst drawing upon the authors own experiences in Northern Ireland. I consider the report to be unnecessarily long at well over 100 pages in length.

9. The judge found no reason to depart from Judge Amin’s assessment of the appellant’s credibility. He did not accept that she would be at risk on account of her Oromo ethnicity. He did not accept that the appellant would be at risk on account of her sur place activity in support of the OLF. He dismissed the appeal on protection grounds. He went on to conclude that the appellant would not encounter very significant obstacles to re-integration to Ethiopia and that her return would not be in breach of the ECHR.

The Appeal to the Upper Tribunal

10. There are two grounds of appeal to the Upper Tribunal. The first is that the judge gave inadequate or unsustainable reasons for rejecting the account of Ms O’Reilly. The second is that the judge failed to take material matters into account in concluding that the appellant would not encounter very significant obstacles to re-integration to Ethiopia.

11. In her concise submissions, Ms Fisher expanded economically upon each of the grounds of appeal. Ms Everett stated that she was in difficulty in seeking to defend the judge’s decision on account of the reasons given for rejecting the expert report. On reflection, she did not consider that she could invite the Upper Tribunal to uphold that decision.

12. I indicated that the appeal would be allowed and invited submissions on relief. Having received those submissions, I indicated that the decision would be set aside as a whole and that the appeal would be remitted to the FtT for hearing de novo by a judge other than Judge Aldridge. My reasons for allowing the appeal are as follows.

Analysis

13. The expert evidence in this case was adduced for two primary purposes. The first was to lend support to the plausibility of the appellant’s account, which had been comprehensibly disbelieved by Judge Amin. The second was to illustrate that the appellant would be at risk on return to Ethiopia, particularly on account of her sur place activity. The expert report was therefore relevant both to the judge’s assessment of the appellant’s credibility and to his assessment of the risk on return to Ethiopia.

14. The judge was plainly aware of his duty in relation to the expert evidence. He cited FS (Treatment of expert evidence) Somalia [2009] UKAIT 4, the conclusions of which are to much the same effect as [21] of SS (Sri Lanka) v SSHD [2012] EWCA Civ 155. As Stanley Burnton LJ therein explained, the weight to be given to expert evidence is a matter for the trial judge and his decision not to accept it does not involve an error of law “provided he approaches that evidence with appropriate care and gives good reasons for his decision”.

15. Although the judge attempted to adopt that very approach, I accept that the basis upon he rejected Ms O’Reilly report was inadequate or unsustainable for the following reasons:

(i) Whilst it is potentially relevant that the expert has never been to Ethiopia, the judge overlooked material matters in concluding that this was a matter of ‘great concern’. The Tribunal has observed in key cases that to be an expert one does not necessarily have to live in a country or even to visit regularly. That was said at [88] of SW (Jamaica) [2011] UKUT 251 (IAC), and must apply a fortiori today given the increasing access to information via the internet. In any event, the judge overlooked Ms O’Reilly extensive experience working for the UNHCR and working with Ethiopian refugees. His decision in fact contains no reference to the fact that Ms O’Reilly’s claim to be an expert stems in large part from her extensive professional experience with the UNHCR in Africa. Her report was obviously written in her private capacity but the fact that she previously worked for the UNHCR and with Ethiopian refugees was relevant to an assessment of her expertise.

(ii) I do not understand the observation that the expert’s ‘experiences appear to be anecdotal’. On first reading, it might have been thought that the judge was suggesting here that the expert’s sources were anecdotal. As Ms Fisher observed, such a suggestion would have been incorrect. The report certainly makes reference to the expert having interviewed various Ethiopian asylum seekers (seemingly in her previous position for the UNHCR) but there are also other sources cited throughout the report, including Amnesty International and Al Jazeera, to name only two. The judge must therefore have meant that the expert only had anecdotal experience of the Ethiopian government’s treatment of Oromos and the OLF. But it is very difficult to see how a credible expert would have anything more than anecdotal experience of these matters and, as Ms Everett very fairly observed in her submissions, it might well be said that an ‘expert’ who claimed to have first-hand experience of such matters was insufficiently impartial.

(iii) The fact that Ms O’Reilly has not met the appellant is not rationally capable of amounting to a ‘fundamental flaw’ in her report. Ms O’Reilly is based in the United States of America and is currently enrolled on a course at Harvard University. As Ms Fisher observed in her submissions, it is difficult to see why there was any need for her to meet the appellant, rather than basing her report on the written materials with which she had been provided. There are obviously circumstances in which the Tribunal would expect an expert witness to have met the subject of their report. Cases in which a physical or psychiatric examination are necessary fall most clearly into that category. So too do those cases in which linguistic analysis is to be performed by an expert for the purpose of deciding, for example, whether a person’s dialect suggests that they originate from a particular country or region. Here, however, the expert was called upon primarily to opine about the plausibility of the appellant’s account and the risk to her on return to Ethiopia. It is not clear why either of those matters required a meeting with the appellant, or why the failure to have such a meeting flawed the report ‘fundamentally’.

16. The central reasons given by the judge for attaching little or no weight to the expert’s report were therefore unsustainable. Given that the report was advanced as part of the evidence which was said to support the credibility of the appellant’s account (opining, as she did, that the appellant’s account was ‘highly plausible’), it follows that the judge’s finding as to the truthfulness of the appellant’s historical account cannot stand. Nor can his subsequent assessment of the appellant’s sur place claim, which was also tainted by his errors in respect of the expert report.

17. Ms Everett was correct, in the circumstances, to accept that she could not properly invite me to uphold the judge’s decision. I accept that it was flawed for the reasons given in the first ground and that it must be set aside as a whole. I am not able to conclude (and was not invited to do so by Ms Everett) that these errors on the part of the judge were immaterial to the outcome. In light of Roba v SSHD [2022] UKUT 1, it seems to me that the appellant’s case may be able to succeed either on the basis of her original claim or on the basis of her sur place activity, or both, assuming that those activities are found to be truthful.

18. In the circumstances, I need say very little about the second ground but that I accept that it too is made out. The judge’s analysis of paragraph 276ADE(1)(vi) of the Immigration Rules did not take into account all of those matters which were said in Ms Griffith’s skeleton argument to show that the appellant would encounter very significant obstacles to her re-integration to Ethiopia. The judge failed, no doubt as a result of his error in relation to the expert report, to take into account matters such as the appellant’s status as a lone woman without a meaningful support network, both of which were cited at [48] of the FtT skeleton argument as being relevant to the claim under the Immigration Rules.

Postcript

19. I add this. The appellant plainly faced a difficult task in this appeal, given the strong adverse findings made by Judge Amin on the original claim. The appellant’s solicitors were clearly cognisant of the task presented to them and sought, understandably, to adduce expert evidence in support of the appeal. The judge was plainly unimpressed with that report and he gave a number of reasons for that conclusion. Some of those reasons were unsustainable in law as I have explained above. As I said to Ms Fisher at the hearing, however, I do wish to make it clear that I agree with the final complaint expressed by the judge in the paragraph I have reproduced above.

20. At 132 pages (including appendices), the report is possibly the longest expert report I have ever seen in more than twenty years in this field. There was simply no need for such a report to be this long. Had it been half that length, it would still have been far too long, and I am troubled at the cost to the Legal Aid Agency. The FtT is a specialist Tribunal which is tasked with administering a complex area of law in challenging circumstances. The FtT is positively hindered, not assisted, by the presentation of reports which are so unnecessarily long. Sources need not be set out at such length, and seldom are in expert reports in country guidance cases. A summary of the relevant source can be provided with a footnote which will enable the opposing party to validate the accuracy of the summary. This was not a case in which the expert sought to present differing opinions and then to express her own; all of the sources she cited were supportive of her conclusions and there was simply no need for them to be set out in extenso in this way. I hope that these observations will be brought to the attention of the expert so that they may be taken into account in future cases.

Notice of Decision

The decision of the FtT was vitiated by legal error and cannot stand. The appeal is remitted to be heard de novo by a judge other than Judge Aldridge.

Order Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Due to this being an ongoing protection appeal, I order as follows. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

M.J.Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 May 2022