Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00895/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 2 November 2016
on 7 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

R T YOHANES
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A J Bradley, of Peter G Farrell, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant sought recognition as a refugee, saying that he risked renewed persecution in Eritrea as a Pentecostal Christian.
2. For reasons explained in a letter dated 13 August 2015, the respondent found that the appellant had not given a credible account. The respondent did not accept that he is Eritrean, and held that in any event he would be entitled to reassert a right to Ethiopian nationality. Being Ethiopian, he was not entitled to protection.
3. The appellant appealed to the first-tier tribunal. Judge Robison dismissed his appeal by decision promulgated on 1 July 2016.
4. The appellant applied for permission to appeal to the UT on grounds which may be condensed as follows:
(i) Arrested aged 18. The judge found it significant that the appellant was arrested at age 18 but was not required to undertake military service. This was an incorrect calculation. As he said in a statement, he was aged 17 when released from jail. The judge was also wrong in thinking that the appellant had reached aged 20 by the time he left Eritrea.
(ii) Said he was Ethiopian not Eritrean. The judge indicated that one reason she did not accept the claimed nationality was that the appellant he said he was Ethiopian when first questioned in the UK. No explanation has been given for this assertion. A reading of the screening interview does not bear it out. Throughout that interview the appellant consistently described himself as Eritrean, not Ethiopian.
(iii) Approaches to Embassy. The judge refers to ST (ethnic Eritrean: nationality) 2011 UKUT 00252 which lays out the requirements for someone in the appellant's position? to approach the Ethiopian embassy with all documentation? failing which to set out relevant details in a letter to the embassy? The appellant did both? all that is required. The judge contrary to country guidance has indicated that more is required? [including] details about all attempts he made to contract his school? The judge concluded that the appellant was required to give the embassy officials time to investigate?. not a requirement of ST. The judge concluded that the appellant was required to produce a letter from the embassy... not a requirement of ST. On the contrary ST is quite clear that? the Home Office should assist? at an early stage? no attempt was made by the Home Office to assist? ST is quite clear that the embassy are? unhelpful to those of Eritrean ethnicity? very unlikely they would try and assist the appellant? The appellant? visited the Ethiopian embassy twice. On neither occasion did any official indicate that they required further time. The judge has engaged in speculation? that the embassy would have wished to assist the appellant either by investigating or providing a letter to assist? one? deported from the country at a time when those of Eritrean ethnicity were viewed as enemies. The judge's failure to consider the terms of country guidance constitutes an error in law.
(iv) Further ... The judge should have considered whether the unhelpful attitude of the Ethiopian authorities was rooted in their perception of the appellant as an ethnic Eritrean.
(v) Description of currency. The judge correctly accepted that the appellant had given "good" information is regarding Eritrea. Despite this failure to describe the currency was considered to go against his credibility. "Most people in the UK may well have difficulty recalling the coins in their pockets." The judge has failed to adequately explain why such matters had any significance.
(vi) Section 8 issues. The judge considered section 8 issues as a starting point for assessing credibility? Contrary to SM (Iran) (section 8 issues) 2005 UKAIT 116. The judge was not required to take this as her starting point and has given inadequate reasoning for doing so.
5. Permission was refused by the FtT, but renewed on all grounds, and granted by the UT. The numbering above follows the first application.
6. A rule 24 response dated 30 September 2016 for the respondent submits as follows.
The judge's reasons for concluding the appellant is not Eritrean are not inadequate, but comprehensive, in particular at paragraphs 40 to 47. The grounds quibble with minor details as to whether the appellant was 17 or 18. In the grand scheme of the dispute about nationality, such matters were peripheral. The complaint about starting with delay [section 8] was a criticism regarding form rather than substance. The judge had to start somewhere and did not treat delay as determinative.
7. The grounds do not specify where the judge went wrong about the appellant saying he was Ethiopian. In course of submissions, it was gradually clarified that this is based on paragraph 43 of the decision, "? the respondent relied on the fact that the appellant said he was Ethiopian when first questioned in the UK. I did not consider it likely that he was asked where he was born rather than his nationality ?". The point was then found to relate back to paragraph 18 of the respondent's refusal letter, which says that when first encountered in the UK the appellant stated his nationality as Ethiopian, and on the basis of the information he then provided he was noted as an Ethiopian national. In his witness statement the appellant said at paragraph 35, responding to paragraph 18 of the refusal letter, that when first encountered by the police he was asked about his place of birth not his nationality, which came up only at the screening interview. The respondent relied on the statement to the police in framing the refusal letter. The respondent did not produce any record of the interview with the police. The appellant has never asked for its production.
Submissions for appellant.
8. Mr Bradley said that in his witness statement and in evidence the appellant dealt with all issues raised by the Home Office. The judge accepted some of his explanations, including the point of language and knowledge of Eritrea, so some significant points taken against him had been eliminated. The appellant visited the Ethiopian embassy in September 2013, and his solicitors wrote to the Embassy on his behalf on 18 September 2015, admittedly with sparse information. However, proceedings in the first-tier tribunal had been adjourned for a further approach to be made, and a letter dated 7th June 2015 gave much fuller information. The judge referred to both letters, but said there was "not much difference", a fundamental error. The second letter complied with the requirements of the country guidance, ST at headnote (iv). The judge gave 6 reasons for dismissing the appeal, 3 of which could now be shown to be wholly erroneous.
9. Turning to the particular grounds, Mr Bradley submitted that the judge clearly went wrong about the appellant's age. On ground 2, judge's finding was not based on any evidence, and the only evidence was to the contrary, being the appellant's statement. The finding was simply not open to her.
10. Grounds 3 and 4 ran together. The letter to the embassy not only complied with all the requirements of country guidance, it even went further, providing the telephone number of the primary school which the appellant attended. The judge was wrong about the letters being the same, and should not have taken this point against the appellant.
11. The only points left were the appellant's failure to claim asylum in Italy or France, and not knowing the details of the currency used in Eritrea. Those matters were not sufficient for the decision to stand. The errors identified, taken together, required a remit to the first-tier tribunal.
Submissions for respondent.
12. Mrs O'Brien said that ground 1 at first sight appeared to identify a clear error of fact, perhaps arising from the respondent not putting the matter as clearly as it might have been in the refusal letter. However, the appellant's evidence was not as exact as now claimed about his age in relation to his dates of detention and release. This alleged incident clearly took place around the period when he was turning 18 years of age, and he was hazy about the details. The judge might have been wrong in saying that he was 18 when arrested, and the appellant now said in reply that he turned 18 only after release, but there was still an overall lack of specific times and dates. The essential point remained: it was not credible that at around the age of conscription he would have been released from detention.
13. Ground 2 was accurate insofar as the appellant said at the screening interview that he was Eritrean not Ethiopian, but that was not the point - on proper scrutiny, the adverse issue arose elsewhere. In the refusal letter, the respondent made her position clear: the appellant when first encountered said he was Ethiopian. It did not matter that the record had not been produced, the requirements of evidence in this jurisdiction being flexible, no objection having been taken, and the appellant never having requested the record. It might be at best second-hand hearsay but it was not correct to say there was "no evidence", as now asserted. The judge had been entitled to prefer the respondent's version of what had been said. It was a sensible reason that the appellant was likely to have been asked his nationality, but his country of birth.
14. Grounds 3 and 4, regarding the approach to the embassy, disclosed no error. The second letter might be more detailed, but it did not add anything significant. It was in effect just a reiteration, and it was sent only shortly before the hearing. In any event, the question was not the amount of detail in a letter. The important issue was whether the details regarding the appellant's identity were reasonably likely to be true. The appellant had not generally been found to be a reliable witness, for good reasons, so there was no error in holding that the letter to the embassy did not significantly help his case.
15. Ground 5, relating to knowledge of the currency, was to be understood by reference to paragraph 12 of the refusal letter. The point raised there is that the appellant could answer general questions about Assab but gave only a vague account of the colour of the currency saying it "could be silver" and that "some can be diamonds, they all differ in value and size". When asked what he meant by "diamond", he said, "the ones that are brown in colour". This made no sense. Objective evidence was that coins are all made of nickel alloy and are all round (Mr Bradley accepted this to be accurate). The appellant's response in his statement was that this was a slip of the tongue, which again was no explanation at all. The judge was entitled to give the issue such weight as she did.
16. As to ground 6, it was no error to deal with the section 8 issue at that point of the decision. There would only be error of law if that issue was taken as decisive in itself, and the judge directed herself clearly at paragraph 39 that it was not.
17. The determination should stand.
Reply for appellant.
18. The judge was wrong to say that the appellant was "already 18" when arrested, and failed to make any attempt to resolve the evidence on the point. There was nothing whatsoever to justify the judge's finding that the appellant gave his nationality as Ethiopian. She gave no reason for finding it "not likely" that he would be asked about nationality rather than place of birth. The letter to the embassy said much more than the judge acknowledged, and met the requirements of the country guidance. Taking out the errors, the judge's decision was legally inadequate.
Discussion and conclusions.
19. It cannot be satisfactorily resolved whether on all the evidence advanced the appellant had reached the age of 18 by the time he was allegedly released from detention. If anything turned on his exact age, it would be at that point and not at the beginning of his detention. The reason the judge finds the matter adverse is that it was unlikely that he would be released at about the age of conscription. Any factual slip about age at detention is immaterial.
20. There was much more detail in the 2nd letter to the embassy, which became Mr Bradley's main point in submissions. However, what the judge actually says is that is that the letter "apparently contains nothing more than was known on 13th April". That appears to be accurate. The judge's criticism is not the lack of any difference between the two letters, but the fact that the second letter was not prepared until 7th June although it could as easily have been sent on or before 13th April, when a hearing was adjourned for this purpose. The observation that "? notwithstanding any potential reluctance on the part of the Ethiopian embassy? officials were given very little time to investigate", is sensibly made. Reading paragraph 46 fairly and as a whole, it is based on the timing, not on the comparative detail in the letters.
21. It is also important to consider that a letter of this nature to the embassy, even one replete with details, is not a "magic bullet" to establish refugee recognition. The more fundamental question is not whether such a letter has been sent, but whether an appellant establishes that the alleged identity details in it are reasonably likely to be true.
22. The lengthy narration in ground 2 of the appellant's assertions at screening interview of Eritrean nationality is apt to mislead. The judge derived nothing adverse from those assertions at the screening interview. What she found was that when encountered by the police in the first place the appellant said he was Ethiopian. She gave an adequate explanation. She accepted the record as it had found its way into the refusal letter, and she thought that a policeman was more likely to ask the appellant his nationality than his country of birth. That was a view it was open to her to take. Judges are not required to give endless "reasons for reasons".
23. There was no argument before the FtT or before the UT that the respondent should have produced the best available evidence, which would be the record kept by the police, rather than relying on at best second-hand hearsay. In any event, these would be matters of weight not admissibility. The submissions that the judge made her finding without any evidence, or without giving any reasons, are not sustainable.
24. Ground 5 is no more than disagreement. It was open to the judge to find that the appellant failed to describe the currency in his alleged country of residence as he might reasonably be expected to have done. This was not a question of simple difficulty recalling coins in his pockets. He gave a senseless description and explanation, at odds with the accepted background evidence.
25. There is no error in mentioning section 8 issues at the outset of the credibility assessment, provided they are not taken as decisive on their own. Ground 6 discloses no error.
26. In summary: the judge went wrong in saying that the appellant was aged 18 when detained. The evidence was not to that effect. That error was not material. The other alleged errors are not, on full examination, errors at all.
27. The determination of the First-tier Tribunal shall stand.
28. No anonymity direction has been requested or made.

4 November 2016
Upper Tribunal Judge Macleman