Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02048/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 24 October 2016
on 26 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

T K DAWIT
Respondent

For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Ms A Speirs, of Katani & Co, Solicitors

DETERMINATION AND REASONS
1. The parties are as described above, but the rest of this determination refers to them as they were in the FtT.
2. The SSHD refused the appellant's claim by letter dated 12 October 2015, for these reasons. The appellant had not discharged the burden of establishing that he is a national (or former habitual resident) of Eritrea (paragraphs 13 - 14). On his Facebook page he said he was proud to be Ethiopian, the country of his and his parents' birth, and he was "considered to be a national of Ethiopia" (paragraph 15 - 16). Even if accepted to be of Eritrean origin, he had not shown that he had been deprived of or was no longer entitled to Ethiopian nationality (paragraph 17). He was accepted to be a Pentecostal Christian, but that gave rise to no risk on removal to Ethiopia, as proposed (paragraph 25). Even if he had illegally exited Eritrea, that would not present a risk on return there (paragraphs 26 - 28, based on materials post-dating country guidance). Failure to claim asylum in another country (in particular, in France), was adverse to credibility (paragraphs 29 -30).
3. FtT Judge Fox allowed the appellant's appeal by decision promulgated on 11 July 2016. He found that the appellant was an Eritrean national who was protected from return there due to risks arising from enforced national service (paragraphs 14 and 15). He noted what the respondent said about Ethiopian nationality and that the appellant's representative had written to the Ethiopian authorities, but he expressed no conclusion (paragraphs 16 and 17). The materials produced by the respondent did not suffice to set aside country guidance (paragraph 18).
4. The SSHD's grounds of appeal to the UT refer to ST Ethiopia CG [2011] UKUT 00252 and to MA v SSHD [2009] EWCA Civ 289. In essence, they complain about the absence of a conclusion on Ethiopian nationality.
5. A rule 24 response for the appellant says that the grounds "? fail to mention that in disputed nationality cases ? the burden of proof rests with the Home Office to prove that the [appellant] is Ethiopian", and that burden was not discharged.
6. Submission for SSHD. The judge went wrong at paragraph 7 by saying that the appellant firstly left Eritrea in 1990. The country did not then exist. The burden is on the appellant not on the SSHD throughout, and as to nationality the standard is the balance of probability; MA at paragraph 78. There was material error but it would be going too far to say that the case must have failed on this issue, as matters were intertwined. The case should be remitted for fresh hearing in the FtT.
7. Submission for appellant. The facts found by the judge pointed to the appellant being Eritrean. The burden was on the SSHD, as accepted in Guidance (produced in the appellant's first inventory of productions in the FtT, item 13) at paragraph 3.1, "If the Home Office considers the appellant to be a specific nationality other than that claimed ? the burden rests with the Home office to prove the assertion". Although the judge thought that the letter sent to the Ethiopian Embassy on behalf of the appellant (dated 23 May 2016, and produced on the day of the FtT hearing) did not provide sufficient information, the letter said all that was needed. The appellant in his witness statement also said that he had been to the Embassy. The judge failed to mention that. The judge noted that the appellant produced a birth certificate to support his claim to Eritrean nationality (paragraph 13). The decision should stand. If it were to be set aside, the positive credibility findings should be retained.
8. Reply for SSHD. The guidance applied to cases where the SSHD positively undertook to prove another nationality. It did not reverse the usual burden on an appellant to establish his case of deprivation of apparent citizenship. It would be odd if the appellant's birth certificate proved Eritrean nationality, as no such status existed at the date of his birth.
9. On reference to the bundle, I noted that the birth certificate is only an untranslated photocopy.
10. I reserved my decision.
11. The case posed to the judge a critical question: is the appellant an Ethiopian citizen? The absence of an answer is (without more) an error of law requiring the decision to be set aside. The point is not excluded by his being an Eritrean citizen.
12. The burden of showing deprivation of a nationality generally rests with an appellant, along with the rest of his case.
13. The SSHD has the burden at points where she chooses to assume it, such as by offering to prove a nationality which an appellant denies. That does not carry the corollary that on the SSHD falling short of such proof, an appellant is entitled to recognition as a refugee. That burden remains on him, including any issue of deprivation of nationality.
14. As to preservation of any findings, there is force in the submission that matters are inextricable, but the submission that findings should be preserved is also of some substance, when the SSHD has not directed any specific grounds against the favourable findings. However, I note the appellant's complaints in course of the UT hearing that his letter to the Embassy was misrepresented against his interests, and that other evidence was overlooked. He would not wish to be encumbered on those matters. I also note the emerging matter of the birth certificate being taken in his favour when it was untranslated and as such ought not to have carried any weight and when, as Mr Matthews pointed out, it would be very strange if it records a nationality not then in existence.
15. It would be a constrained and artificial exercise for another judge to negotiate a passage through previous findings with which both parties legitimately disagree. The only satisfactory course is an entirely fresh hearing.
16. At the fresh hearing parties should be ready to address the issue of Ethiopian nationality in the context of onus and standard of proof, and to assess the case according to most recent country guidance (a further case is about to be published).
17. The decision of the First-tier Tribunal is set aside. None of its findings are to stand. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
18. The member(s) of the FtT chosen to consider the case are not to include Judge Fox.
19. No anonymity direction has been requested or made.

26 October 2016
Upper Tribunal Judge Macleman