Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01232/2015

THE IMMIGRATION ACTS

Heard at: Birmingham Employment Tribunal
Decision and Reasons Promulgated
On: 18 November 2016
On: 22 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

AA
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Martin, Counsel instructed by Migrant Law Partnership
For the Respondent: Ms H Aboni, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. This is an appeal against the determination of First-tier Tribunal Judge I Malcolm in which the Judge dismissed the appeal of the Appellant, a citizen of Ethiopia, against the Secretary of State's decision to refuse asylum and set removal directions.
2. The Appellant arrived in the United Kingdom on 14 May 2015 and claimed asylum the same day. His application was refused by the Respondent on 1 September 2015. The Appellant exercised his right of appeal against this decision and this is the appeal that was heard before Judge Malcolm on 29 April 2016 and dismissed. The Appellant's application for permission to appeal against the First-tier Tribunal Judge's decision was granted on 28 July 2016 by Designated Judge MacDonald in the following terms
"? The grounds state that the appellant should not be expected to know the extent of his father's involvement in the OLF. The judge had engaged in speculation. Some of the judge's findings were perverse and it did not matter whether or not the appellant had shown good faith in carrying out the sur place activities.
The judge noted in paragraph 91 that photographs were provided showing the appellant participating in demonstrations and meetings and she accepted that evidence relating to the OLF. Her finding that the appellant's evidence as to his involvement with the OLF was "somewhat vague" is arguably unclear as to what evidence the judge was accepting and it might be said that what the judge concluded in paragraph 97 has not been fully reasoned."
3. By a rule 24 response dated 8 August 2016 the Respondent opposed the appeal.
4. At the hearing before me Ms Aboni appeared for the Secretary of State and Mr Martin represented the Appellant and submitted a written skeleton argument.
Background
5. The Appellant is a 23-year-old Ethiopian citizen who arrived in the United Kingdom at the age of 22 having travelled through a number of European and other countries. The Appellant claims that he left Ethiopia fearing persecution due to his involvement with the OLF and his father's involvement before him. The Appellant also claims to have taken part in OLF activities in the United Kingdom and that this increases the risk that he will face on return.
6. In dismissing his appeal, the First-tier Tribunal Judge found that the Appellant had not given a credible account of his journey to the United Kingdom, that his account of his involvement with the OLF was 'somewhat vague' and that his account of his father's involvement was 'not particularly persuasive'. The Judge accepted that the Appellant had been involved in demonstrations and meetings in the United Kingdom but found these activities were not sufficient to establish a sur place claim.
Submissions
7. Mr Martin referred to his skeleton argument and said that there were two effective strands to the appeal. The first related to the Appellant's father's activities and the second to the sur place claim. As to the former his father died in 2011 when the Appellant was 18. At that time the Appellant did not claim to be involved with the OLF, his own activities started in 2013. The Judge gave too much weight to the fact that the Appellant could not give detailed information about his father's involvement. The conclusion that the Appellant's evidence was 'vague' as to his own activities and 'not particularly persuasive' as to his father activities did not show what was accepted and what was not.
8. So far as the sur place claim was concerned the Judge gave insufficient weight to the letter from Dr Berri but more importantly having seen photographs and having found that the Appellant took part in activities in the United Kingdom the Judge gives no reasons for the finding that this is insufficient to establish a sur place claim. There is no analysis of the photographs and no reference to background material.
9. For the Respondent Ms Aboni referred to the rule 24 notice and said that whilst there was sufficient reason given for the finding relating to the Appellant's father it had to be accepted that there was inadequate reasoning in respect of the dismissal of the sur place claim.
10. I said that the appeal would be allowed. I was satisfied that the Judge had erred in law in that both the finding that the Appellant was not credible and the finding that his activities in the United Kingdom were insufficient to establish a sur place claim were inadequately reasoned. I reserved my written decision.
Error of law
11. The Appellant is a citizen of Ethiopia of Oromo ethnicity. He claims that his father was a member of the Oromo Liberation Front (OLF) and that he was killed by the Ethiopian government in February 2011 having been in prison for 3 months before his death. The Appellant said that his mother told him of his father's OLF involvement. The Appellant became involved with the OLF himself in late 2013 and attended meetings and delivered leaflets. The delivery of leaflets caused adverse interest from the Ethiopian authorities and having seen the police coming to his home in April 2014 the Appellant went into hiding until he was able to leave the country. He travelled first to Sudan and then on to Libya before entering Europe through Italy and travelling through other countries including France before arriving in the United Kingdom. Having arrived in the United Kingdom and having claimed asylum the Appellant made contact with the OLF in London and attended meetings and demonstrations in which he took a role enabling him to be easily photographed.
12. In dismissing the claim, it is clear that the Judge took adversely the Appellant's account of his travel to the United Kingdom. Paragraphs 81 to 85 of the statement of reasons deal with this. It is in my judgment clear that the Judge's findings in this respect form at least part of the foundation of her reasons for not accepting the substance of the Appellant's claim. Thereafter the Judge did not accept that the Appellant's mother had been arrested because there was no independent evidence to support this (paragraph 86). In dealing with the Appellants' claim that his father was involved with the OLF the Judge 'found it difficult' to accept that the Appellant was unable to give specific information given that the Appellant was also involved with the OLF (paragraph 88). In making this finding the Judge fails to note that the Appellant did not become involved with the OLF until more than 2 years after his father's death. The Judge does not accept that the Appellant's father was killed because there is no independent evidence to support this. So far as the Appellant involvement with the OLF is concerned the Judge rejects his evidence a 'somewhat vague'.
13. In my judgement there are a number of reasons why this adverse credibility finding is unsafe. Firstly, the reliance on the method of travel rather than the substance of the claim, secondly the apparent requirement for 'independent evidence' both in respect of his mother's arrest and his father's death, thirdly failure to take into account the substantial gap between the Appellant's father's involvement and death and the Appellant's own involvement with the OLF and finally the overall summary of the Appellant's evidence of his own involvement as 'somewhat vague.' Individually these are examples of reasoning that are perhaps incomplete but taken together there is in my judgment inadequate reasoning sufficient to amount to an error of law making the credibility findings unsafe.
14. The refusal of the sur place claim is also in my judgment inadequately reasoned. The Judge accepts that sur place activities took place. She criticises the evidence of Dr Berri as being based on information provided by the Appellant ignoring the fact that Dr Berri gives personal evidence of the Appellant's involvement and also records the fact that he did not accept the Appellant's account of his involvement with the OLF in Ethiopia without question. It being accepted that the Appellant had taken part in sur place activities the conclusion that these were insufficient to establish a sur place claim with no reasoning given at all is, as Ms Aboni accepted, clearly inadequate.
15. The effect of these errors must be to render the credibility findings as a whole unsafe. Due to the nature of the error of law and in accordance with the President's direction it is appropriate for this matter to be remitted to the First-tier Tribunal for hearing de novo with no findings preserved.

Conclusion
16. The decision of the First-tier Tribunal involved the making of an error of law for the reasons set out above.
17. I set aside the decision of the First-tier Tribunal and in accordance with the President's direction this matter is suitable for and should be remitted to the First-tier Tribunal.

Signed: Date:

J F W Phillips
Deputy Judge of the Upper Tribunal