Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00445/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 August 2016
On 24 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J M HOLMES

Between

K.M.
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Brakaj, Solicitor, Iris Law Firm
For the Respondent: Mr McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 10 April 2015. That application was refused on 11 June 2015, and a decision to remove him from the UK was made in consequence.

2. The Appellant's appeal to the Tribunal against those immigration decisions was heard on 31 March 2016, and it was allowed on asylum grounds by decision of Judge Malik, promulgated on 14 April 2016.

3. Unusually, both parties applied to the First Tier Tribunal for permission to appeal. Both applications were granted by decision of Judge Davidge of 6 May 2016.

4. The Respondent filed a Rule 24 Notice dated 16 May 2016 in relation to the grant of permission to the Appellant, but the Appellant did not.

5. Thus the matter comes before me.

The Appellant's case before the First Tier Tribunal

6. The Appellant's case was that his mother was an Ethiopian citizen, born in Ethiopia to Ethiopian parents. He claimed however that she was not recognised as such in 1999, when she tried to enter Ethiopia from Eritrea, so that she was refused entry, when she was unable to produce any documentation to establish who she was.

7. The Appellant said that he left Eritrea in 1999 for Sudan with an aunt, his mother having died and his father having disappeared. He denies having held any status in Sudan, but says he lived there until July 2013 when he made his way to the UK upon the arrest of his aunt for political activities.

8. The Appellant therefore denied possession of any identity documents, but he did not deny knowledge of who the members of his family are, and were.

9. The Appellant was legally represented throughout the appeal process. Although Iris Law did not lodge his appeal on his behalf, they did act for him from 12 November 2015 and did represent him at the hearing before the Tribunal.

10. As both representatives now accept before me, it follows that the Appellant's case before the Tribunal was that he was a citizen of Ethiopia by descent under Ethiopian law, and that the core issue to the appeal was whether he had been refused recognition as such by the Ethiopian authorities. With the benefit of hindsight it now seems pretty clear that those who represented the parties before the Tribunal probably failed to identify that they were agreed that this was the case from the outset, and failed to make it clear to the Judge that this was their joint position. If the Appellant had not been refused recognition as an Ethiopian citizen then on his own case he could be removed from the UK to Ethiopia in safety, and issues over what his position would be in the event of a removal to Eritrea fell away.

11. As both representatives now accept before me the principles set out in the country guidance decision of ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 252 were therefore central to the appeal. The evidence produced by the Appellant for the hearing did not however follow the guidance contained in ST. Instead the Appellant produced a photograph of himself standing outside the Ethiopian Embassy in London, and a business card for the Head of Consular Services, and made the otherwise bald assertion that he had attended the Embassy and had been told that without identity documents he was not recognised as an Ethiopian citizen. Belatedly produced for the hearing was an email that had been sent on the Appellant's behalf by his solicitors to the Embassy less than 48 hours before the hearing. It was said that there had been no response to this email, although no evidence to support that claim appears to have been filed from a member of the firm. Despite the timing, the Appellant's representative then sought to rely upon the absence of response to that email as material evidence to support the Appellant's claim that he was not recognised as an Ethiopian citizen by the Ethiopian authorities. Such an argument sought to elevate the absence of evidence into cogent evidence, when it was clearly not.

The decision

12. The Judge concluded in the light of the guidance to be found in ST that the Appellant had not discharged the burden of proof that rested upon him to establish that he had made proper enquiries of the Ethiopian Embassy in London, and, had disclosed to them in so doing the information that he held concerning his family that would allow them to make sensible enquiries into his identity. Thus the Judge concluded that the Appellant had not done all he could reasonably be expected to have done to facilitate his removal from the UK to Ethiopia [41 xi]. In turn the Judge concluded that it followed that the Appellant had not discharged the burden of proof to show that he was not entitled to Ethiopian nationality and/or unable to return to Ethiopia [43]. (I am satisfied that "return" must be read here as "be removed" since there was no finding that the Appellant had ever been to Ethiopia, and it was not his case that he had.)

13. The Judge went on to conclude that the Appellant had a well founded fear of persecution if removed to Eritrea, and allowed the asylum appeal on that basis.

Error of Law?

14. The Respondent's challenge to the decision is a simple one, and one to which Ms Brakaj accepted she had no answer if paragraphs 41(xi) and 43 of the decision are to be read as set out above, as I am satisfied that they should be. On the strength of the Judge's own findings the asylum appeal should have been dismissed On the Appellant's own case he was an Ethiopian national by descent, and the Judge had concluded that he had failed to demonstrate that he was not recognised as such by the Ethiopian authorities. He did not claim to have a fear of persecution in Ethiopia if he were recognised as such by the Ethiopian authorities, and able to enter Ethiopia recognised as a citizen of that country.

15. The basis of the Appellant's challenge to the decision is framed as a complaint that the Judge gave inadequate reasons for his decision that the Appellant had failed to establish that he was not recognised as a citizen of Ethiopia.

16. The fundamental problem with the Appellant's grounds, is that they amount to a mere disagreement with the Judge's analysis of the weight to be given to the Appellant's evidence concerning his efforts to gain recognition of his status as a national from the Ethiopian authorities. Contrary to the assertion made in the grounds, the Judge did not impose a requirement for corroboration, and did not fail to follow the guidance to be found in ST. Instead the Judge did apply the guidance to be found in ST and in doing so quite properly noted the absence of any corroborative evidence to which he could attach material weight, for the Appellant's claim to have approached the London Embassy, and, to have been refused recognition as an Ethiopian national.

17. In my judgement the Judge was entirely correct to take the approach that he did. There was very little evidence as to whether the Appellant had made any personal approach to the Embassy for recognition, and the Judge was perfectly entitled to conclude on the balance of probabilities that he was not satisfied that he had done so. Moreover, it was well open to the Judge to conclude that if the Appellant had made a genuine and realistic attempt to gain recognition as an Ethiopian national through an approach to the Embassy rather than a self-serving dishonest approach designed to produce a rejection, then he would have been able to supply full details of the information that he had supplied to the Embassy, and of the response that he had obtained. The Appellant provided no such details.

18. Turning then to the email sent to the Embassy by the Appellant's solicitors immediately prior to the hearing. This was an approach that was made extremely late in the day, and no application for an adjournment was made in order to elicit the benefit of a reply. Even the content of this email fell a very long way short of establishing that the Appellant had made a genuine approach disclosing all of the information available to him. Thus the Judge was perfectly entitled, for the reasons that he gave (which were entirely adequate), to reject the Appellant's claim to have made a genuine attempt to obtain recognition of his Ethiopian citizenship.

Conclusions

19. In consequence I am satisfied that I should set aside the decision upon the asylum appeal, and remake that decision so as to dismiss the asylum appeal.

20. The Judge's decision records the failure to advance before him any Article 8 appeal. Neither party suggests that he was incorrect to do so, and neither Ms Brakaj, nor the grounds for the Appellant's application for permission offer any reason as to why the dismissal of any Article 8 appeal should not follow. It follows that the appeal must be dismissed on all grounds.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 14 April 2016 contains an error of law in the decision to allow the Appellant's appeal on asylum grounds which require that decision to be set aside and remade so that the appeal is dismissed on asylum and human rights grounds.

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 23 August 2016