Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00603/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th September 2016
On 27th September 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

Ms azeb tefera
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford, instructed by J D Spicer Zeb Solicitors
For the Respondent: Ms Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant was born on 1st November 1990. She appeals against the decision of First-tier Tribunal Judge Hillis, dated 16th June 2016, dismissing her appeal against removal on asylum, humanitarian protection and human rights grounds.

2. Permission to appeal was granted by First-tier Tribunal Judge Keane on 25th July 2016 on the grounds that the judge arguably did not give any or adequate reasons in support of his finding that the Appellant was not Eritrean as she claimed. The judge at paragraph 27 of his decision identified the paramount issue raised by the appeal, namely, the Appellant's claim to be Eritrean in line with her father. At paragraphs 28 to 37 inclusive the judge recited various claims advanced by the Appellant. Save to mention inconsistencies which he did not hold against the Appellant the structure of his assessment was really to set out the Appellant's claims. At paragraph 38 of his decision he concluded from the facts above that the Appellant was not a credible witness in respect of her claim as to her nationality. However the judge's assessment arguably could not be characterised as expressing a reason or reasons in support of such a finding, but merely amounted to a recitation of claims advanced by her.

3. Ms Radford relied on the grounds of appeal dated 4th July 2016. She submitted that this was a reasons challenge on the basis that the judge had failed to give adequate reasons for why he found the Appellant was not an Eritrean national. He found that she had failed to show that she had been denied Ethiopian nationality.

4. The Appellant's case was that her father was Eritrean and her mother had taken Eritrean nationality. The Appellant had no documents from Ethiopia. She had been born in Ethiopia but had lived in Eritrea for a year in 2001. The judge recited the Appellant's evidence at paragraphs 27 to 37 but did not give reasons for rejecting it. At paragraph 31, the Appellant was unable to give details in relation to Eritrea and the reason she gave was that she did not go out much while she was there. The judge made no findings on whether he accepted or rejected this explanation.

5. The Appellant was not old enough to have been educated in Tigrinya and the judge failed to make findings on what happened at the Ethiopian embassy [the Embassy], merely pointing out that he had heard two inconsistent accounts. There was nothing in paragraphs 27 to 37 to explain the conclusion, at paragraph 38, that the Appellant's claim to be an Eritrean national was not credible. Although the judge rejected the evidence of Ms Kedane at paragraphs 35 and 36, and the evidence of the Appellant's other witness, effectively the judge was noting that there was no supporting evidence. He did not give any reasons for why he rejected the Appellant's account.

6. Accordingly, the core of the Appellant's account was rejected at paragraph 38, but there were no clear reasons why that was in fact the case. The reasons given later in the decision in relation to the visit to the Embassy were made in light of the earlier finding that the Appellant was not a credible witness. Further, the judge also misstated the Appellant's case because there was clear evidence in the asylum interview that the Appellant had been mistreated in Ethiopia and exploited by her employer.

7. In relation to deprivation of Ethiopian nationality, the judge stated that the Appellant's account was inconsistent with the witnesses. He failed to resolve this conflict or to state which of the accounts he accepted, or give reasons for which of the accounts he rejected. There were three areas where the reasoning was not clear: the Appellant's credibility at paragraphs 27 to 38; the account at the Embassy at paragraph 47; and the misstatement at paragraph 48.

8. Ms Fijiwala for the Respondent submitted that the judge had made factual findings at paragraphs 27 to 37. He noted the Appellant's case at paragraph 10 and at paragraphs 20 to 26. The Appellant did not know why her father was detained by the Ethiopian authorities or how he died. This did not go in her favour. The judge indicated evidence which he found did not adversely affect the credibility of the Appellant's claim. Accordingly, the other findings from 27 to 37 clearly indicated adverse findings in relation to credibility. The judge noted inconsistencies in the Appellant's evidence at paragraphs 31 to 32: she did not know the currency in Eritrea; she did not know the names of the places where she stayed; and she did not speak Tigrinya. The judge also found that she was educated in Ethiopia and made comments at paragraph 47 that this in itself was not a determinative factor. The judge noted the inconsistent evidence of Ms Kedane at paragraph 35 and did not accept the evidence of Mr Abraha.

9. The judge took into account all relevant information in concluding that the Appellant's claim that she was Eritrean was not credible. The judge did not have to state at each point of his evidence what was not credible because the overall conclusion given at paragraph 38 explained the situation. This amounted to a structural issue, not a lack of reasoning.

10. The judge dealt with the Appellant's ability to obtain Ethiopian nationality at paragraph 47 onwards. The judge did not have to make a finding which evidence he preferred. He found that the evidence was inconsistent and therefore it did not assist him. The Appellant had not provided a written application to the Ethiopian Embassy and had failed to show that the authorities had refused to grant nationality or that she would not be able to enter the country. The Appellant, on the facts before the judge, had not shown that she was unable to obtain Ethiopian nationality. There was no misstatement of fact because the Appellant had not faced any problems with the Ethiopian authorities. The judge's findings were open to him and there was no material error of law.

11. In response, Ms Radford submitted that it was not possible to infer from the judge's findings at paragraphs 27 onwards that they were adverse in relation to credibility. It was not possible to infer that this was the case because the judge did not state why the factors mentioned in those paragraphs damaged the Appellant's credibility. The Appellant did not know her parents' history because of her age. This was a common feature. The judge failed to explain why the Appellant's level of knowledge was inconsistent with her explanation. The judge needed to explain why speaking Amharic damaged the Appellant's credibility. The Appellant had given evidence of her father's nationality and that he had Eritrean papers. The Appellant may not be lawfully entitled to Ethiopian nationality. On her own account she had not made a written application because the authorities would not let her make it.

Discussion and Conclusions

12. At paragraphs 27 to 37 the judge set out the Appellant's claim made in her interview and her oral evidence, and the evidence of her witnesses. The Appellant was born in Ethiopia. Her father was born in Eritrea and she thinks her mother became Eritrean because of her father. The Appellant did not know why her father was detained in Ethiopia in 2000 as she was only nine years old at the time. She did not know how her father died in 2001 because she was too young. The Appellant's mother died in 2007 when the Appellant was 16 years of age. The Appellant did not claim that her mother gave her any details regarding her father once she was older and able to understand.

13. The Appellant had given an inconsistent account regarding the searches of her home for weapons by the authorities, but this was not relevant to the issue of nationality and therefore the judge made no adverse credibility finding in that respect. The Appellant claimed she went to Assab, Eritrea in 2000 and returned to Ethiopia in 2003. She entered Eritrea illegally and left it illegally. However she could not recall where she lived in Assab and she was unable to answer any questions regarding the names of buildings, hospitals or parks there. She was unable to give the name of the currency in Eritrea and she stated that she did not attend school. The Appellant does not speak Tigrinya and was unable to give any details about her claimed two to three year period of life in Eritrea during her asylum interview and stated it was because she was too young and did not go out. The Appellant had stated that she had never been in possession of Eritrean documents of her own, although her mother had held some at one point prior to her death, in a camp, of malaria.

14. The Appellant was educated to grade 6 in Ethiopia and the judge found this was one factor indicating that the Ethiopian authorities regarded her as Ethiopian on the evidence taken as a whole. The Appellant and Ms Kedane gave inconsistent evidence regarding their knowledge of each other. The Appellant claimed Ms Kedane visited her once in Ethiopia when she was very young. Ms Kedane stated in oral testimony that the first time she saw the Appellant was in Ethiopia four years ago. Ms Kedane stated that the Appellant's father was the son of her aunt, but she did not state her aunt's nationality or that of her aunt's husband which was crucial to the nationality of the Appellant's father. Ms Kedane did state that her whole family was Eritrean. The judge concluded that, for these reasons, no evidential weight could be placed on Ms Kedane's evidence.

15. Mr Abraha had only known the Appellant since she arrived in the UK and met her on the day he accompanied her to the Embassy. He only knew the Appellant through Ms Kedane and the judge concluded that Mr Abraha did not give any evidence relevant to the Appellant's father and his nationality.

16. The judge concluded, at paragraph 38, that her claim to be Eritrean was not a credible one because on the information given by her, applying the lower standard of proof, she had failed to show she was Eritrean rather than Ethiopian. I find that the judge is entitled to come to this conclusion on the basis of what he set out at paragraphs 27 to 37. He could have expressed himself better, but it was clear from the tenor of those paragraphs that he found the Appellant's lack of knowledge of Eritrea, and of her father, to indicate that she was not Eritrean. The fact that she had been educated in Ethiopia indicated that she was Ethiopian and her failure to produce supporting documents was not credible given that she said her mother possessed some, but had not given them to her. The evidence from her witnesses did not support her account and was inconsistent. I find that the judge's reasoning was adequate and there was no material error of law.

17. It is certainly clear from the judge's conclusions at paragraph 47 to 54 that the judge found that the Appellant had failed to show that she is Eritrean and not Ethiopian. The judge found that the Appellant was educated in Ethiopia which was an indicator that she was Ethiopian, although it was not a determinative factor. However, there were other factors which were relevant and indicated that there was a reasonable likelihood that she was in fact Ethiopian. She was fluent in Amharic, which was an Ethiopian language, and the Appellant and her witnesses had given inconsistent evidence about their trip to the Embassy.

18. The Appellant stated that her first visit to the Embassy was with Mr Abraha and they had travelled to London together from Rotherham by bus from Meadow Hall. Mr Abraha stated in oral testimony that he had never been to Rotherham and did not travel to London with the Appellant. He met her at Ms Kedane's home in London and they caught the bus to the Embassy. The Appellant stated that she saw a man who was brought to reception at the Embassy to speak to her and she told him that she was Ethiopian and that her father was Eritrean and her mother was Ethiopian at birth, but that he refused to help her as her father was Eritrean. Mr Abraha stated that the Appellant asked for a form of identification at the Embassy and told them that she was Eritrean and that as soon as she said she was Eritrean they refused to assist her.

19. The judge stated that, on her own account, the Appellant had no Ethiopian documents and provided none to the Embassy. She had accepted that she did not set out her history, parentage and lineage in writing and submit it in the absence of such identification. No written application was ever made to the Ethiopian Embassy. Mr Abraha stated that the Ethiopian Embassy informed the Appellant that if she can bring documentation as proof they would help, but without proof they were unable to assist her.

20. On this evidence the judge concluded that the Appellant had failed to show, to the lower standard, that the Ethiopian authorities had refused to grant her nationality or arbitrarily refused her permission to enter the country. This was a finding that was open to the judge on that evidence. The Appellant's account was inconsistent and therefore she had failed to establish the necessary facts to show that she was unable to obtain Ethiopian nationality.

21. Accordingly, the judge's conclusion that the Appellant had failed to show, to the lower standard, that she was not Ethiopian was one which was open to him on the evidence. I am not persuaded by Ms Radford's submission that the decision is so lacking in reasons that it is not possible to determine any conclusions the judge has in fact made.

22. On reading the decision as a whole, the judge has given adequate reasons for why he does not accept the Appellant's claim. The judge has summarised the evidence and reached a conclusion which was open to him on the basis of that evidence. I find that there was no material error of law and I dismiss the Appellant's appeal.

Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

J Frances
Signed Date: 22nd September 2016

Upper Tribunal Judge Frances

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

J Frances
Signed Date: 22nd September 2016

Upper Tribunal Judge Frances