Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) PA/02608/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 20 September 2016
On 29th March 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

BTG
(Anoymity DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss O Taiwo (UK Law)
For the Respondent: Mr K Norton (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The appellant claims to be a citizen of Eritrea born on 19 October 1985. He appeals the decision of a First-tier Judge dismissing his appeal against the respondent’s decision of 29 October 2015 to refuse his asylum and humanitarian protection claim.
2. The reasons given by the respondent for refusing the appellant’s application for asylum were set out in a lengthy decision letter. The respondent did not accept that the appellant was Eritrean, noting other points that the appellant spoke Amharic rather than Tigrinya. The appellant and his parents had been born in Assab in 1985, part of Ethiopia and the respondent referred to Proclamation No 378/2003 which it was submitted indicated that the appellant was an Ethiopian national by descent. Reference was made by the Secretary of State to the country guidance decision of ST (Ethiopia) CG [2011] UKUT 00252 in paragraph 21 of the decision letter. The respondent also rejected the appellant’s claim to be a Pentecostal Christian.
3. The appellant’s appeal came before a First-tier Judge on 18 March 2016. The appellant was represented then as he is before me by Ms Taiwo. The judge found that the appellant was a citizen of Ethiopia by virtue of Proclamation No 378/2003. The judge accepted the appellant was a Pentecostal Christian but found that there was no real risk of persecution on that account on return to Ethiopia.
4. There was an application for permission to appeal. It was argued that the fact that the appellant’s parents were born in Assab did not make them Ethiopian. Permission was granted on 13 June 2016. It was arguable that the judge had erred by not considering the issue fully in the light of ST (Ethiopia).
5. Miss Taiwo relied upon the grounds and submitted that the appellant had been deported from Ethiopia because of his Eritrean ethnicity and the evidence of his travels was consistent with him being an Eritrean national.
6. Mr Norton referred to the brief respondent’s response that had filed on 1 July 2016 but submitted that he could not adopt it. He accepted that the First-tier Judge had not given adequate reasons for his conclusions and that no reference had been made to ST (Ethiopia). The Judge had not adequately engaged with the submissions of either party. However it was accepted that there was no reason to depart from the finding that the appellant was a Pentecostal Christian.
7. Both parties were accordingly agreed that the determination was materially flawed in law and that the appeal should be remitted for a fresh hearing before a different First-tier Judge.
8. I agree that while conciseness is not to be discouraged the judge’s reasoning on the nationality issue is set out in a very short compass. The judge does not appear to incorporate by reference the respondent’s analysis of the evidence particularly on the language issue. He makes no reference to the country guidance. The determination is materially flawed in law.
9. Because of the inadequacies of the determination and the degree of fact finding required I accept that remittal is the appropriate course in this case.
10. The appeal is accordingly by agreement remitted to be heard afresh before a different First-tier Judge. The finding that the appellant is a Pentecostal Christian is not affected by the error of law.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Fee Award
The First-tier Judge made no fee award and I make none.

Signed
G Warr, Judge of the Upper Tribunal

20 September 2016