Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/23547/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 February 2017
On 22 March 2017

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

mr Biruk hagos
(ANONYMITY DIRECTION not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No legal representative
For the Respondent: Mr P Armstrong, HOPO

DECISION AND REASONS

1. The appellant attended the hearing without a legal representative. He said that his wife has had a baby and was not working at the moment. Consequently, he was not able to pay for legal representation. There was a letter from Darlingtons Solicitors confirming that the appellant was not in a financial position to afford representation at this appeal and therefore no-one will be in attendance from their firm or no Counsel. They have agreed to remain on record pro bono in order to assist in this process. They prepared a skeleton argument reiterating Counsel’s grounds.

2. The appellant appeals against the decision of First-tier Tribunal Judge N J Bennett dismissing his appeal against the respondent’s decision dated 9 June 2015 to refuse his human rights claim. The appellant said he was an Eritrean national who was born in Eritrea on 1 December 1982. He claims to have arrived in the UK on 15 June 2007. He claimed political asylum on 18 June 2007. His appeal against the refusal of his claim was dismissed because the judge found that he had failed to establish that he was from Eritrea and found that he was probably Ethiopian. The appellant applied for leave to remain under Appendix FM of the Immigration Rules on 3 April 2015 as the husband of a British citizen, Haddas Ukbeyohannes Feshaye. His application was refused because the respondent was not satisfied that there were insurmountable obstacles to him continuing family life with the sponsor abroad, or that he would face very significant obstacles in integrating into Ethiopia, or that there were any exceptional circumstances which warranted a grant of leave to remain under Article 8 outside the confines of the Immigration Rules.

3. The judge heard evidence from the appellant, his sponsor, Miss Haddas Feshaye and a third witness called Habtom Tewoldeberhan.

4. The judge noted that no issue was taken by the respondent about the existence of family life or about whether the appellant and the sponsor have a genuine and subsisting relationship. The disputed area was whether there were insurmountable obstacles to family life continuing abroad. The judge had regard to the relevant provisions of Appendix FM paragraphs EX.1.(b) and EX.2.

5. The judge said that the appellant’s Counsel, Mr Hunt-Jackson, very properly accepted that there was no question of family life continuing in Eritrea because the sponsor had been a refugee from Eritrea. The judge accepted that the sponsor would face significant difficulties if she had to move to Ethiopia with the appellant and continue her family life there. She would be required to give up the life that she has built here and the privileges that accrue from her British citizenship. Although she speaks Amharic fluently and has experience of living in Ethiopia, she also has bad memories of Ethiopia as someone who was deported from the country in the difficult circumstances she described in her statement.

6. The judge said that Miss Feshaye must however show either that these difficulties are very significant and that they cannot be overcome or that they would involve very serious hardship for her. This is a very high threshold. The judge said the word “very” is not otiose. Without in any way wishing to underplay her past experiences in Ethiopia, the judge was not satisfied that the threshold set by paragraphs EX.1.(b) and EX.2. is met. No evidence was placed before him showing that ethnic Eritreans are still being deported from Ethiopia to Eritrea or that they are subjected to serious ill-treatment or serious discrimination in Ethiopia. The judge found that her British citizenship is an important consideration, but it is not determinative, as the Court of Appeal pointed out in Agyarko [2015] Imm AR 1201. Her position is very different from that of a British citizen by birth and descent because she was not born here. She was born in Addis Ababa and spent her early life there. She speaks Amharic.

7. In the judge’s view, the question of insurmountable obstacles turned on the appellant’s nationality and his ability to live in Ethiopia.

8. The judge stated that when considering this question, the previous judge’s finding that the appellant was probably an Ethiopian national was the starting point. The appellant’s inability to communicate in Tigrinya was one of the main reasons why the previous judge reached this conclusion. The previous judge recorded that the respondent said in the refusal letter that the appellant’s claim was undermined by his failure to answer questions in Tigrinya and thereby demonstrate an understanding of the language, despite claiming to have knowledge of the language and despite claiming to have been deported to Eritrea in 2000 and to have attended school there between September 2003 and the end of 2006. The appellant had not produced any evidence to rebut this finding by showing that he can converse in Tigrinya.

9. The judge noted that the language was not the only reason why the previous judge reached the conclusion that the appellant was probably Ethiopian. The previous judge disbelieved his claim based on his religion. The judge also noted that the respondent considered that there were limits to the appellant’s knowledge of Eritrea and that the objective evidence indicated that the appellant and his father would have been deported before May 2000. The previous judge said that the appellant left Eritrea as a child, and said that he lived there for about seven years as a young adult before being deported to Ethiopia. He therefore had plenty of time in which to learn to communicate in Tigrinya. He has not produced any expert evidence to show that Amharic is so widely spoken in Assab that there was no need for him to learn any Tigrinya. In the absence of such evidence, he was unable to infer from this the fact that Assab is about 50 miles from the Ethiopian border. The appellant does not claim to be able to communicate fluently in any other language that is widely spoken in Assab, which might explain his failure to learn to communicate in Tigrinya, and he has not provided any independent evidence establishing that languages other than Tigrinya are widely spoken in Assab.

10. The judge noted that the appellant has not contacted the Eritrean Embassy to ascertain the documents that must be submitted with an application for a passport. He explained that he had not contacted the Embassy by saying that he was scared to approach it. The judge said that the Eritrean Government may have a very poor human rights record but there was no independent evidence showing that the Eritrean Embassy in London treats Eritreans in a way that would excuse an Eritrean from approaching it about making an application for a passport. The judge did not accept that the evidence that he has produced is an adequate substitute or that it establishes that he is probably an Eritrean national.

11. The judge said he derived no assistance from the appellant’s account of his attempts to obtain an Ethiopian passport. On his account, he told the Ethiopian Embassy that he came from Eritrea and only showed them his Home Office identity card. It was therefore hardly surprising that they told him that they could not help him.

12. Applying Devaseelan, the judge saw no reason to depart from the previous judge’s conclusions about the appellant’s nationality. He was not satisfied that the appellant is probably an Eritrean national or that he was ever deported from Ethiopia, or that the documents he has produced can be relied on as evidence of his nationality. He therefore saw no reason why the appellant could not return to Ethiopia. He may prefer to live here and may feel settled here, but these are not insurmountable obstacles as defined in paragraph EX.1.(b), to the appellant continuing his family life in Ethiopia. The judge was not satisfied that there were any very significant difficulties which would be faced by the appellant or by the sponsor in continuing their family life together outside the United Kingdom and which could not be overcome or would entail very serious hardship for either of them.

13. For substantially the same reasons, the judge did not accept that there were very significant obstacles to the appellant being able to integrate into Ethiopia. In the circumstances he did not accept that the combined difficulties he and his sponsor would face amounted to exceptional circumstances of the sort envisaged in Agyarko. He was therefore not satisfied that there were exceptional circumstances that would justify a grant under Article 8. For substantially the same reasons he was satisfied that removal would be a proportionate interference with the appellant’s rights under Article 8.

14. The judge found that in any event, removal is proportionate because the appellant has the option of returning to Ethiopia to apply for entry clearance.

15. Judge Pooler granted the appellant permission to appeal against the judge’s decision. He said it was not clear to what extent the judge was addressed in relation to the country guidance found in ST (Ethnic Eritrean – nationality – return) Ethiopia CG [2011] UKUT 00252 (IAC); the guidance was referred to in the appellant’s skeleton argument and arguably amounts to evidence with which the judge has failed to engage. Judge Pooler also said it was appropriate to grant permission in relation to the second ground, which was linked to the first; it focuses not only on whether there was evidence of serious discrimination of ethnic Eritreans in Ethiopia, but also the arguable question of whether the judge misdirected himself by requiring there to be serious ill-treatment or serious discrimination for there to be insurmountable obstacles.

16. The skeleton argument submitted by Darlingtons in support of the appellant’s appeal repeated the three grounds, the first two of which were granted permission. The appellant was not granted permission on the third ground, which was in respect of the judge’s findings on Article 8. In respect of the first ground, reliance was placed on a BBC report in which Ethiopia and Eritrea blamed each other for border clashes. Extracts from the report were produced but not the actual report. There was no reference to the date of the report. Reference was made to the 1998-2000 conflict, over the exact location of the border which led to the deaths of an estimated 80,000 people. Reliance was placed on this report to demonstrate that the situation in Ethiopia for ethnic minorities is not secure.

17. Mr Armstrong submitted a Country Information and Guidance Report on Ethiopia: People of mixed Eritrean/Ethiopian nationality dated 31 August 2016. He relied on paragraph 3 which set out the Home Office policy summary. It stated as follows:

“3.1.1 The government stopped its policy of forced deportation of persons of Eritrean heritage from Ethiopia to Eritrea in the early 2000s after hostilities between the two countries ceased, and began to regularise the position of Eritreans remaining in Ethiopia in 2003/4. There is no evidence that persons of mixed Eritrean/Ethiopian origin are at risk of being deported to Eritrea and/or are subject to treatment that amounts to persecution or serious harm.

3.1.2 There may be cases of persons who claim to have been deprived of their Ethiopian nationality during the border conflict. Each case will need to be considered on its merits, with the onus on a person to demonstrate that they have done everything possible to obtain Ethiopian citizenship and that, if they are unable to reacquire citizenship, that they will face treatment that amounts to serious harm or persecution on return to Ethiopia. “

18. In the light of the judge’s findings and the policy summary as set out in the Country Information Guidance on Ethiopia, Mr Armstrong submitted that the grounds submitted on behalf of the appellant disclosed no material error of law in the judge’s decision.

19. He said that the appellant has told us that his wife has taken a break from work because her child is ill. Nevertheless, on her evidence she meets the £18,000 financial support threshold. There was no reason why the appellant could not in the circumstances apply for entry clearance to join his wife in the United Kingdom. He submitted that there is no expectation for the wife to return to Ethiopia with him, but she can choose to do so if she wishes.

20. The appellant repeated his evidence and claimed that he was an Eritrean national. He confirmed that he had made no attempt to go to the Eritrean Embassy and get documents to establish his identity or nationality.

21. In the appellant’s grounds it was submitted that the judge had accepted that the appellant’s wife was an ethnic Eritrean. It was submitted that in ST the Upper Tribunal found at head note (4)-(10) that Ethiopia is reluctant to facilitate the return of foreigners. The position during that time was described as “insecure”. They would have to fight for access to public education, healthcare etc. In addition, the appellant’s wife had been deported from Ethiopia to Eritrea. Therefore, that will make her return to Ethiopia very difficult. Had the judge taken into account the real difficulties the appellant’s wife would face if relocated to Ethiopia, the outcome of the appeal might have been different.

22. I accept that the judge did not have regard to the decision in ST when considering whether the difficulties that the appellant’s wife would face in Ethiopia amounted to very significant insurmountable obstacles. The judge said that no evidence was placed before him showing that ethnic Eritreans are still being deported from Ethiopia to Eritrea, or that they are subjected to serious ill-treatment or serious discrimination in Ethiopia. I find that this is because from the information contained in the respondent’s Country Information Report of 31 August 2016, Ethiopia stopped its policy of forced deportation of persons of Eritrean heritage from Ethiopia to Eritrea in the early 2000s after hostilities between the two countries ceased; and began to regularise the position of Eritreans remaining in Ethiopia. Consequently, I find that the judge was entitled to conclude that there were no insurmountable obstacles to family life continuing outside the United Kingdom.

23. In any event, the appellant’s wife is a British national. The grounds submitted by Darlingtons state that the appellant and his wife have recently given birth to a baby boy and that it would be unreasonable to expect the child to return to Ethiopia. I accept this argument.

24. However, the appellant was found to be an Ethiopian national. He has not provided any reason why he cannot return to Ethiopia and obtain entry clearance to join his wife and child in the UK.

25. Accordingly, the judge’s decision shall stand.

26. No anonymity direction is made.

Signed Date: 22 March 2017

Upper Tribunal Judge Eshun