Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02624/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 28 February 2017
On 9 March 2017

Before

DUPTY UPPER TRIBUNAL JUDGE MONSON

Between

E W (ERITREA/ETHIOPIA - NATIONALITY DISPUTED)
(anonymity direction MADE)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr J Howard, Solicitor, Fountain Solicitors
For the Respondent: Ms R Pettersen, Specialist Appeals Team

DECISION AND REASONS
1. The appellant appeals from the decision of the First-tier Tribunal (Judge Borsada sitting at Birmingham, Shelton Court on 26 July 2016) dismissing his appeal against the decision of the Secretary of State to refuse to recognise him as a national of Eritrea who had a well-founded fear of persecution on return to Eritrea on account of him being a Pentecostal Christian (which was accepted), or on account of him having illegally exited Eritrea (which was not accepted, as he was not accepted to be a national of Eritrea). The First-tier Tribunal made an anonymity direction, and I consider that it is appropriate for the appellant to continue to be accorded anonymity for these proceedings in the Upper Tribunal.
Relevant Backgound Facts
2. The appellant’s case was that he was a member of the Tigrinya tribe. He said that he originated from Assab in Eritrea. He had been born in Assab in 1999, and in 2003 he had moved to the Sudan with his father following his mother’s death. His father had gone there for work purposes. While in Sudan, the appellant had attended a school in Deam where Amharic was the language of instruction. He and his father returned to Eritrea in October 2012 due to his father’s ill health.
3. Following their return, the appellant was arrested along with his father and several other people, after they had been found to be praying in a house. The appellant was detained for several days, during which time he was beaten. He was eventually released with the assistance of his uncle, and shortly thereafter he managed to leave the country illegally.
The Hearing Before, and the Decision of, the First-tier Tribunal
4. At the hearing before Judge Borsada, both parties were legally represented. The appellant gave evidence with the assistance of an Amharic interpreter, as did a supporting witness, Sisay Belay.
5. In his subsequent decision, the Judge began by setting out the appellant’s case. He then set out the respondent’s case as advanced in the refusal letter and by the Presenting Officer.
6. The respondent doubted that the appellant was Eritrean. While the appellant had provided some answers to questions about Eritrea which were externally consistent, the information was in the public domain and it was information that would certainly be known to those living in neighbouring countries such as Ethiopia. The respondent was of the opinion that the appellant was likely to be from Ethiopia.
7. The respondent’s reasoning was that (a) the appellant had been vague and inconsistent in interview on the topic of where he had come from in Eritrea; (b) he had wrongly identified “injeria” as an Eritrean dish, when it was a staple food in Ethiopia; (c) in his screening interview he had said that he did not know his ethnicity - and it was only later that he claimed to be Tigrinyan; (d) he did not speak Tigrinya, whereas he spoke Amharic fluently, and it was noted that this was the principal language of Ethiopia; (e) it was known that Eritreans were hostile to the learning of Amharic because they regarded their country as having been occupied by Ethiopia; (f) he claimed that he spoke Amharic because he had been raised by an Amharic-speaking maid from the age of three following the death of his mother, but as he was found to have been born in 1990 - not 1999 as he claimed - he would have been at least 13 when his mother died in 2003, and it was inconceivable that he would not have learned to speak Tigrinya from his parents if this was truly his tribal identity; (g) the appellant’s claim that Amharic was spoken at his school and home area in Sudan was not consistent with the background information; (h) the appellant was not able to say where Deam was in Sudan; (i) the appellant claimed not to have received any education in Eritrea, which was inconsistent with the background evidence which showed that schooling was compulsory for children between the ages of 7 and 13, and the appellant had not left Eritrea, on his account, until he was aged 13; and (j) the appellant provided a muddled account of his father’s reasons for travelling to Eritra in 2012.
8. At pages 7 to 9 of his decision, the Judge set out the appellant’s response to the case put forward by the respondent.
9. In his findings of fact, the Judge said that he was not satisfied that the rebuttal evidence adequately addressed the many well-founded concerns raised by the respondent. He had seen no other evidence that Social Services were wrong to reach the conclusion that the appellant was born circa 1990, and having heard and seen the appellant at the hearing, there was nothing about his appearance that clearly indicated to him that the age assessment was not likely to be accurate. Accordingly, he agreed with the respondent about all the matters that touched and concerned the credibility of the appellant’s evidence in the light of the fact that he was born in 1990, not 1999. This included the credibility issues associated with the appellant’s inability to speak or understand Tigrinya, and also the likely knowledge he would have had about the reasons his father had gone to Sudan, and his likely knowledge about Eritrea, in particular its regional geography.
10. The Judge noted the very clear background evidence provided by the respondent about Amharic speakers in Eritrea. The appellant never claimed to be an Ethiopian living in Assab. With regard to the letter from the Eritrean community in Lambeth, it was not clear what expertise the writer of the letter had, or the particular nature of the enquiries made. He also noted that the letter incorrectly referred to the appellant twice by the wrong name, and this undermined the credibility of the evidence.
11. With regard to the photographs and calling card from the Ethiopian Embassy, this was not evidence that demonstrated that the appellant would not be able to claim Ethiopian nationality and/or that he would not be able to return to that country. In particular, the appellant had not shown that he had made a proper enquiry with the Embassy. The Judge continued: “I note and agree with the respondent concerning the appellant’s likely nationality and that the fact that the language he speaks is Amharic and he is a Pentecostal Christian all point to his being Ethiopian in circumstances in which he has also failed to demonstrate that he is from Eritrea.”
The Reasons for the Grant of Permission to Appeal
12. The grounds sought to argue that the Judge failed correctly to apply the correct test/approach regarding the nationality of the appellant; the Judge failed to give adequate reasons for his finding that the appellant was Ethiopian; the Judge failed to consider risk on return as a failed asylum seeker; he had failed to apply relevant Country Guidance cases; and the Judge failed to consider paragraph 276ADE of the Immigration Rules.
13. On 1 September 2016 the First-tier Tribunal Judge Martins granted permission to appeal as, in his view, all the grounds were arguable, and an arguable error of law was shown.
The Hearing in the Upper Tribunal
14. At the hearing before me to determine whether an error of law was made out, Mr Howard developed the arguments advanced in the grounds of appeal to the Upper Tribunal. In reply, Ms Pettersen adhered to the Rules 24 response opposing the appeal settled by a colleague. She submitted that the grounds of appeal merely amounted to an expression of disagreement with findings that were reasonably open to the Judge.
Discussion
15. The grounds of appeal do not in terms challenge the finding of the First-tier Tribunal that the appellant has not discharged the burden of proving, even to the lower standard of proof, that he is a national of Eritrea. As I understood Mr Howard to confirm in the course of oral argument, there is no error of law challenge to this effect.
16. Having obtained Mr Howard’s clarification on this point, I am in no doubt that this appeal is academic. If the Judge has made an error in finding that the appellant is probably Ethiopian, the error is not material. For he has given adequate reasons for finding that the appellant is not a national of Eritrea, and the Secretary of State does not propose to remove him to Eritrea.
17. It was not necessary for the Judge to make a positive finding that he agreed with the respondent that the appellant was probably from Ethiopia. But if he was wrong to find that the appellant was probably from Ethiopia (and by implication a national of Ethiopia), this does not detract from the soundness of his conclusion on the appellant’s protection and human rights claims which were solely based on the hypothesis of him being removed to Eritrea.
18. The questions raised in the grounds of appeal would be appropriate if the appellant’s case had been that he originated from Ethiopia, but that he could not return to Ethiopia because he was a person who was regarded by the Ethiopian authorities as an ethnic Eritrean who left Eritrea during or in the immediate aftermath of the border war between Ethiopia and Eritrea. As is recognised in the Country Guidance case of ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 252 (AIC) at paragraph [129], that such a person is likely to face very significant practical difficulties in establishing nationality and the attendant right to return, stemming from the reluctance of the Ethiopian authorities to countenance the return of someone who it regards as a “foreigner”.
19. As the Judge had rejected the appellant’s account of his antecedents in its entirety, there was nothing left for the Judge to build on in terms of assessing what fate might await the appellant on return to Ethiopia, his most likely country of origin. In particular, the Judge had no evidential basis for making a finding on the question of whether there would be very significant obstacles to the appellant’s integration into the likely county of return. The Judge rejected the appellant’s account of when he had been born, where he had been born, and where he had lived before arriving in the United Kingdom, and there was no alternative history to which the Judge could reasonably be expected to have recourse.
20. Accordingly, dealing with the grounds in their reverse order, Ground 4 (failure to consider Rule 276ADE) falls away for the reason which I have given above. There was no material upon which the Judge could make a finding, one way or another, on whether there were significant obstacles to his re-integration into the country of which he was truly a national.
21. Ground 3 (failure to consider risk on return to Eritrea as a failed asylum seeker) is misconceived, as it would only be relevant if it was accepted that the appellant was an Eritrean national. It is not the appellant’s case that he faced persecution in Ethiopia for making an unsuccessful asylum claim as a national of Eritrea.
22. It is also argued, under Ground 3, that the Judge failed to assess whether the appellant would be considered to be an ethnic Eritrean by the Ethiopian authorities, and thereby the Judge failed to assess whether the appellant would be arbitrarily deprived of his Ethiopian citizenship. I find that it is implicit in the Judge’s rejection of the entirety of the appellant’s claim that the appellant has not proved to the lower standard of proof that he is an ethnic Eritrean.
23. Ground 2 is that the Judge failed to give adequate reasons as to why, on the balance of probabilities, he considered the appellant to be Ethiopian. I consider that the Judge has given adequate reasons for reaching this conclusion.
24. Ground 1 is that the Judge failed to assess the appellant’s nationality in the context of Eritrean nationality law, and failed to approach the issue of nationality correctly, by asking himself the question: “Is the person de jure a national of the country concerned?”
25. In the light of the Judge’s findings of fact on the asylum claim, the Judge had no reason to suppose that the appellant would be considered a de jure national of Eritrea. In FA (Eritrea - nationality) Eritrea CG [2005] UKIAT 0047, the respondent’s refusal letter asserted that the appellant was a national of Eritrea who would be able to return there in safety. At her appeal hearing, the appellant disputed this. She relied on the terms of the 1992 Eritrean nationality proclamation (no.21 /1992) which set out those persons who were entitled to Eritrean citizenship by birth. Article 2(1) of the proclamation stated that: “Any person borne to a father or mother of Eritrean origin in Eritrea or abroad is an Eritrean national by birth.”
26. It is argued in Ground 1 that the Judge failed to make findings as to the origin of the appellant’s parents, and thus failed to assess the nationality of the appellant in the light of this Eritrean nationality proclamation.
27. Again, it is implicit in the Judge’s reasons for rejecting the asylum claim that the appellant has not shown that his parents were of Eritrean origin.
28. It remains to be seen whether the appellant is able to show that the Ethiopian authorities do not accept him as an Ethiopian national. Alternatively, this issue may emerge in the event that the respondent attempts to remove the appellant to Ethiopia. But this is an argument for another time.
29. Given the nature of the appellant’s case, and the primary findings of fact made by the Judge, it was open to the Judge to find that the appellant was probably Ethiopian. So no error of law is made out.

Notice of Decision
The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands.
This appeal to the Upper Tribunal is dismissed.

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 his 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.

Signed Date: 9 March 2017

Judge Monson
Deputy Upper Tribunal Judge