Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02546/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 17 January 2017
On 24 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

H T G
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Sharif of Fountain Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
2. The appellant, who claims to be a citizen of Eritrea, was born on 28 October 1990. She entered the United Kingdom on 29 July 2015 and claimed asylum. The appellant claimed that she had left Eritrea in January 2008 and had then lived in Sudan until February 2013 before leaving Sudan to travel to France. She remained there until she entered the UK in July 2015. The basis of the appellant's claim was that she was an Eritrean national of Tigrinya ethnicity. She claimed that she was a Pentecostal Christian and that she had been arrested and detained in 2007 because of her religion and would be at risk on return.
3. On 28 October 2015, the Secretary of State refused the appellant's claims for asylum, humanitarian protection and under the ECHR. The Secretary of State did not accept that the appellant was a national of Eritrea of Tigrinya ethnicity. Further, the Secretary of State did not accept that the appellant was a Pentecostal Christian. In fact, the Secretary of State did not accept any part of the appellant's claim.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal.
5. In a decision sent on 31 May 2016, Judge O'Rourke dismissed the appellant's appeal. First, he did not accept that the appellant was an Eritrean national. Secondly, in any event, he found the appellant not to be credible and did not accept that she was a Pentecostal Christian who would be at risk in Eritrea. The judge dismissed the appeal on asylum and humanitarian protection grounds and also under Art 8.
The Appeal to the Upper Tribunal
6. The appellant appealed to the Upper Tribunal on a number of grounds: challenging the judge's adverse finding in respect of the appellant's nationality and her religion, his failure to consider whether the appellant was at risk as a failed asylum seeker and in failing to consider Art 8, in particular para 276ADE of the Rules.
7. On 5 July 2016 the First-tier Tribunal (Judge M J Gillespie) granted the appellant permission to appeal.
8. On 19 July 2016, the Secretary of State filed a rule 24 response seeking to uphold the judge's decision.
Discussion
9. Mr Sharif, who represented the appellant adopted the five grounds of appeal which he expanded upon in his oral submissions.
10. Grounds 1 and 3 challenge the judge's reasoning in para 26 for not accepting the appellant is an Eritrean national. In para 26, the judge said this:
"26. Nationality. I do not accept that the Appellant is of Eritrean nationality. The reasons for that decision are as follows:
i. Her lack of knowledge as to conscription in Eritrea. This is despite the fact that it applies to all men and women from age 18 and is one of the major factors for migration of young people from that Country and she, she states, lived there until she was 17. It is inconceivable that she will not have been aware of it. She did, I find, mention a fear of conscription to the Immigration Officer on initial arrival in UK, but that seems, in the light of her subsequent ignorance of the subject, to be almost a 'throw-away' remark, perhaps based loosely on what other migrants may have told her. In questioning at interview, she clearly knew nothing of the subject.
ii. She did have a passing knowledge of some of the geography of Eritrea, but much of what she said could not be verified and those items she was aware of and that were verifiable could have been sourced from the Internet, or conversations with persons from those locations.
iii. Her lack of knowledge, despite claiming to be Tigrinyan, of that ethnic group's customs and traditions, or their language. She didn't, as stated, 'associate with those people'. I didn't find her explanation as to why she and her aunt and uncle spoke Amharic convincing. If Tigrinya was their native language, they would surely have spoken that in the house and perhaps learnt Amharic also, for use in the community.
iv. The conflicts in her evidence as to, firstly, whether she had ever been arrested (not admitted in the screening interview) and secondly, as to the dates when she was arrested and how long detained. I accept that these events were some time ago, but in view of their nature and being the cause of her leaving Eritrea, were not likely to be forgotten, or mistaken."
11. First, Mr Sharif submitted that in para 26(i) the judge had made a contradictory and unreasonable finding, first in rejecting the appellant's evidence that she was unaware of compulsory military prescription in Eritrea and then accepting that she had referred to that when initially confronted by an Immigration Officer.
12. I do not accept this submission. It was the appellant's case that she was unaware of conscription in Eritrea and she denied that she had made the remark to the Immigration Officer which the judge quoted at para 20 of his determination that she "claimed that this country had a better freedom and she does not want to become a soldier". In her asylum interview the appellant quite clearly denied that she knew that military service was compulsory (see, for example the answers at questions 98 and 101).
13. It was, in my judgment, properly open to the judge to find that it was not believable that she would be unaware of conscription if she had lived in Eritrea when she claimed. Mr Sharif placed reliance on the fact that the appellant's evidence was that she had moved from Eritrea to Ethiopia in 1993 when she was 2 or 3 years old. However, it was also her evidence that she had been deported back to Eritrea in 2000 along with her family. She was then 10 years old and remained in Eritrea, on her account, until 2008 when she was 17 years old and left to live in Sudan. She was fast approaching the age of conscription when she left. In the light of the fact that the appellant had lived in Eritrea from the age of 10 until 17, there was nothing perverse or irrational in the judge not accepting that, if she had indeed lived there, she would be wholly unaware of compulsory military conscription.
14. Further, there is nothing inconsistent in the judge's reasoning in para 26(i). Always bearing in mind that the appellant denied that she had ever said to the Immigration Officer that she did not want to become a soldier, the judge was entitled to treat that remark as having been made as a "throw-away" remark (if made at all) perhaps based on what other migrants had told her, in the light of her sustained and consistent evidence that she did not know about compulsory military conscription for all men and women from the age of 18 in Eritrea.
15. Secondly, Mr Sharif submitted that the judge's reasoning in para 26(ii) was inadequate. He submitted that the judge had failed to give adequate reasons for rejecting the appellant's explanation why she did not speak (although she could understand) Tigrinyan and lacked knowledge of their customs and traditions. Mr Sharif submitted that the judge had failed to take into account the appellant's evidence that she had left Eritrea with her aunt and uncle when she was 2 or 3 years old in 1993 to live in Ethiopia.
16. I do not accept Mr Sharif's submission. It is not suggested that the appellant did not lack the knowledge of her ethnic group nor that she did not speak Tigrinyan. Tigrinyan was, of course, her native language as well as that of her family. It was the language of her parents and, as the judge notes in para 14 of his determination, her aunt and her family were also Tigrinyan. The appellant's explanation was that she lived in an Amharic community and did not "associate with those (namely Tigrinyan) people". It was, in my judgment, properly open to the judge to reason that Tigrinyan was the family's native language and it was not believable that it was not spoke at home with her aunt and uncle even if Amharic was also spoken.
17. Mr Sharif placed some reliance on the fact that in para 26(ii) the judge accepted that the appellant had some knowledge of the geography of Eritrea but, even in relation to that, the judge noted that her knowledge could have been obtained elsewhere, for example from the internet.
18. The grounds do not challenge the judge's reasoning in para 26(iv) in which he relied upon inconsistencies in the appellant's evidence as to her claimed arrest and when it occurred and for how long. The evidence is set out at para 16 of the judge's determination. As I have already said, the judge's reasoning in this regard is not challenged in the grounds. It was clearly open to the judge to take into account the inconsistencies as being significant factors in determining whether the appellant claim to be Eritrean was credible.
19. In my judgment, the judge's reasoning in para 26(i)-(iv) was both adequate and sufficient to found his adverse finding that the appellant had failed to establish that she is an Eritrean national.
20. Thirdly, in the grounds of appeal the appellant raises a further point in relation to her nationality. There, at para 2.2 reliance is placed upon the 1992 Eritrean Nationality Proclamation (No. 21/1992) which states, in Art 2(1), that "any person born to a father or mother of Eritrean origin in Eritrea or abroad is an Eritrean national by birth". The grounds argue that the judge failed to engage with this provision and whether the appellant had acquired Eritrean nationality through one of her parents.
21. In his oral submissions, Mr Sharif accepted that this matter had not been relied upon before Judge O'Rourke. It is difficult, therefore, to conclude that he fell into error by not considering it. But, in any event, there was no factual basis upon which the judge could have found in the appellant's favour even if the Eritrean law had been relied upon. It was, of course, a matter for the appellant to prove both what was the foreign law and that she met its requirements. Paragraph 2.2 of the grounds sets out the definition of who is of "Eritrean origin" as being "any person who was resident in Eritrea in 1933". There was no evidence before the judge regarding the appellant's parents. It was the appellant's claim that they had died and that was why she moved with her aunt and uncle to Sudan when she was 2 or 3. There was no evidence of their ages or whether either lived in Eritrea in 1933. Even, therefore, leaving aside the fact that the appellant did not rely upon this as a basis to establish her Eritrean nationality, there was no evidential basis upon which the appellant could succeed under the law as set out in para 2.2 of the appellant's grounds. Mr Sharif was right not to place any reliance on this ground in his oral submissions.
22. Fourthly, the grounds also seek to challenge the judge's reasoning in para 27 of his determination that led him to conclude that the appellant had not established that she was a Pentecostal Christian on the basis that the judge failed to give adequate weight to the oral evidence of Mr Tekle and a letter from the City Temple Church (where Mr Tekle was Leader of the Eritrean & Ethiopian Fellowship) (at page 33 of the bundle).
23. The judge's adverse finding in relation to the appellant's claimed religion was, of course, not material to his decision once he had concluded that she was not an Eritrean national. If that was not her country of nationality or a country to which she could be returned, she could not succeed in establishing her claim even if her religious faith were accepted.
24. However, I do not, in any event, accept Mr Sharif's submission that the judge either failed to give adequate reasons or "adequate weight" to the evidence before him. The judge's reasoning is at para 27 as follows:
"27. Religion. While, if she is not Eritrean, the other elements of her appeal to some extent fall away, I nonetheless consider her claim to be a Pentecostal Christian and find that she is not of that faith. I do so because her answers in interview were so inaccurate as to that religion's tenets that it is impossible to believe that somebody going to the effort of practising it in secret, with the risk of arrest or worse, would not have applied themselves to acquire greater, easily-recalled knowledge of its central beliefs. I note Mr Tekle's evidence, but it's entirely possible that her attendance at his church is an attempt to bolster her claim for asylum and I consider it more significant that before any such attendance, but having apparently practised her religion since birth, she was unable, despite her clearly being an intelligent person (her answers to questions at this hearing were detailed and she gave them some thought and consideration) to describe the Pentecostal (after which her church is named) and placed the story in the first book of the Old Testament."
25. As the judge's reasoning makes plain, the judge had regard to Mr Tekle's evidence which he set out at para 18 together with a reference to the joint letter from Mr Tekle and the Reverend Gibson at page 33 of the bundle. Both confirm the appellant's attendance at the City Temple Church in Cardiff. That letter also sets out their view that the appellant is a "genuine Pentecostal Christian".
26. The judge did not doubt the sincerity of the evidence put forward on the appellant's behalf in relation to her claimed religion. He clearly took it into account. However, even if it was genuinely believed that the appellant was a Pentecostal Christian, the judge had to decide whether in fact it was established that was her religion. In that regard, the judge took into account answers given by the appellant about her religion which were wholly inaccurate. The appellant was cross-examined about her answers as the judge records at para 19 of his determination as follows:
"19. She was challenged, in cross-examination, as to why some of her answers at interview about her religion had been vague, or incorrect. At Q.34 she said that the Pentecost could be found in the book of Genesis in the Old Testament, rather than in the New Testament at the Book of Acts. Further, at Q.136, when asked to describe the story of the Pentecost, she recounted the story of Noah and the Ark, rather than the descent of the Holy Spirit unto the apostles, following Christ's death and resurrection. She explained these discrepancies by saying that at interview she had been confused and stressed and had misunderstood what she was being asked. She was also challenged on this assertion, as she had concluded the interview by agreeing that she understood the interpreter and was happy with the conduct, but she said that she was nervous and stressed and just wanted to get out of the room."
27. In reaching his findings, the judge did not consider that the appellant's nervousness or stress warranted the inaccuracy in her evidence generally. At para 28 he said this:
"28. I note that she says that she was stressed and worried at the interviews, to explain the identified discrepancies in her account and while, no doubt, such interviews are stressful, she appeared at this hearing as calm and collected and as previously stated, was clearly an intelligent person, capable of expressing herself clearly and understanding questions put to her. Overall, I did not find her a credible witness, based on the number and variety of the discrepancies in her account."
28. In my judgment, the judge was entitled to take into account the appellant's lack of, and indeed inaccurate, knowledge about her religion as a highly significant matter in assessing the veracity of her claim to be a Pentecostal Christian. That evidence was taken into account together with the supporting evidence. The judge gave adequate and sufficient reasons for concluding that the appellant had failed to establish her claimed religion. On the evidence, that finding was not irrational or perverse.
29. For these reasons, I reject grounds 1, 2 and 3. The judge's adverse finding in relation to the appellant's nationality and religion were properly open to him on the evidence for the reasons he gave.
30. Given those findings, ground 4 has no basis. That ground argues that the judge failed to consider the risk to the appellant as a failed asylum seeker who had illegally exited Eritrea. Given that the judge found that the appellant had failed to establish she was a national of Eritrea, there was no basis for this claimed risk and the judge was not required to consider it, effectively on a hypothetical basis that she had established she was an Eritrean national.
31. Ground 5 criticises the judge for not considering para 276ADE of the Rules. Mr Sharif submitted that para 276ADE was raised in the appellant's skeleton argument before Judge O'Rourke. Mr Sharif submitted that the judge had erred in law by failing to consider para 276ADE and Art 8 of the ECHR.
32. Paragraph 276ADE and Art 8 were raised in the appellant's skeleton argument at paras 14-20. In particular, at para 26 it is stated that there would be "very significant obstacles to the appellant's integration into Eritrea were she required to leave the United Kingdom."
33. Mr Sharif did not seek to contradict Judge O'Rourke's statement in para 29 that at the hearing that no submissions had been made in respect of the appellant's Art 8 rights. It remained, however, the case that the appellant was relying upon para 276ADE and Art 8. The judge should, therefore, have considered it even though no oral submissions were made.
34. That said, I accept Mr Richards submission that the judge's failure to consider Art 8 was not a material error of law. The case put forward in the skeleton argument was that there were very significant obstacles to the appellant's integration "into Eritrea". Given the judge's finding that the appellant was not from Eritrea, this was not a proper basis upon which to consider para 276ADE. Where the appellant would be returned was not raised before the judge. Even if the most obvious place would be Ethiopia, the appellant produced no evidence and no submissions were made on her behalf in relation to her return to Ethiopia or, indeed, anywhere apart from Eritrea.
35. In truth, at the hearing the appellant did not in her evidence, or through her legal representative, put forward any positive case under Art 8. The skeleton argument goes little further than a recitation of the relevant legal provisions together with a bare assertion that there are very significant obstacles to the appellant's reintegration into Eritrea and that her return would cause the family to be separated. The reference to "the family" being separated is unexplained and it was no part of the appellant's case before the judge that she had family in the UK from whom she would be separated if she were removed.
36. In short, there was no conceivable basis upon which the appellant, given the total lack of supporting evidence, could have succeeded under Art 8 of the ECHR. The judge's failure to consider it was not, in my judgment, material to his decision to dismiss the appeal.
Decision
37. For the above reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal on all grounds did not involve the making of a material error of law. The decision stands.
38. Thus, the appellant's appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date: