Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03047/2015

THE IMMIGRATION ACTS

Heard at Manchester, Piccadilly Decision & Reasons Promulgated
On the 22nd March 2017 On the 13th April 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR TEDROS EMAHTSION
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mrs C Johnrose (Legal Representative)
For the Respondent: Mr McVeety (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge G. Tobin promulgated on the 11th October 2016, in which he dismissed the Appellant’s appeal against the Respondent’s refusal on the 9th November 2015 to grant the Appellant protection on asylum, humanitarian protection and Human Rights grounds.
2. At the appeal hearing the Appellant was represented by Mrs Johnrose and the Respondent was represented by Mr McVeety, the Senior Home Office Presenting Officer.
3. The Appellant is a citizen of Eritrea who was born on the 22nd February 1990. It was the Appellant’s case that he had previously been arrested and detained because he had been accused of trying to exit Eritrea illegally and that he had escaped from prison and thereafter had exited Eritrea illegally, before coming to the UK and claiming asylum. Within his decision, Judge Tobin noted that the Respondent in the refusal letter placed particular reliance upon the Danish FFM report and the fact that the report had been highly criticised by contributors to the report themselves and by the Office of the United Nations High Commissioner for Refugees and said that he was aware of the extensive information outlined in the limitation and criticisms of the report which he accepted. However he found that the Home Office had issued Country Guidance based interviews ranging from Eritrea and government officials to young people and returnees and found that he was obliged to follow Country Guidance authorities, unless there was a good reason for not doing so and that failure to follow Country Guidance without good reason is an error of law. He found that in respect of the latest guidance adduced by the Home Office Presenting Officer at the appeal, the limitations of the interviews were apparent and most of the interviews were selected by the Eritrean government who had provided translators and that the selection of those contributing did not appear sufficiently rigorous to be properly labelled “independent”. However he nevertheless found that he was satisfied that the position of illegal exiters returning to Eritrea had improved and that the Appellant was not a military deserter nor did he claim to be an opponent of the government. He found that the Appellant had not given a credible version of events and he went on at paragraph 26 to find that he did not assume that the Appellant had exited Eritrea illegally and said that there was no credible evidence that the Appellant had left Eritrea illegally, so he was not going to speculate that he did. The Judge therefore found that “Accordingly, I determine that there is no risk to the Appellant should he be returned to Eritrea”.
4. The Appellant had given evidence that the pressure on school places meant that he did not start school until aged 10 and him having to repeat a number of years explained why it is said that he was not due to be taken to Sawa until the age of 24, but the Judge found that it was not credible for a young male in particular to reach 24 without being called upon for military service in Eritrea. The Judge further found that the Appellant’s account that one of the other workers at the farm where he worked had been arrested, such that the authorities had come to the farm after questioning other work colleagues and had arrested the Appellant was implausible, particularly given the fact that the farm was located some distance from the Eritrean border. He also found that it was not believable that the Appellant would have been transferred with other prisoners, with very few guards. He also did not accept the Appellant had carried around his cousin for 3 years and that when thereafter he had been arrested and detained in prison he had remained undetected. Nor did he accept the Appellant had simply inadvertently thrown away such a phone number in a “dirty shirt”. The Judge had further found that the Appellant had had the opportunity of claiming asylum in both France and Italy which were safe countries but had failed to do so.
5. The Appellant has sought to appeal against that decision for the reasons set out within the Grounds of Appeal. This is a matter of record and is therefore not repeated in its entirety here, but it was argued, inter alia, within the initial Grounds of Appeal that the Judge failed to follow Country Guidance in terms of the cases of MO (illegal exit – risk on return) Eritrea CG (2011) UKUT 00190 and MA (draft evaders; illegal departure; risk) Eritrea CG (2007) UKAIT 00059 and had not given adequate reasons as to why those cases had not been applied to the Appellant. It was argued that it was incumbent upon the Judge to undertake an assessment as to whether the Appellant could have exited Eritrea legally and the Judge failed to have regard to the Country Guidance cases in that respect. It is further argued in the second ground of appeal that the Judge made findings of fact which were not open to him on the evidence and that having found that the evidence provided by the Respondent did not appear sufficiently rigorous to be properly labelled “independent” nevertheless went on to find that the position of illegal exiters returning to Eritrea “had improved” and there was no independent evidence to support such a contention. It was further argued that the Judge’s decision was undermined by the most recent Country Guidance case of MST and others (national service – risk categories) (CG) [2016] UKUT 443. It was further argued in ground 3 that the Judge totally misdirected himself in that at paragraph 19 the Judge found that the Appellant was not conscripted because that was said to be contrary to the finding at paragraph 18 and that in any event the Judge was obliged to determine whether the Appellant would be at risk upon return as a draft evader or would be perceived as being an opponent of the regime and/or a draft evader upon return.
6. Permission to appeal was originally refused by Designated Judge of the First-tier Tribunal Manuell, who found that the Judge considered the evidence as a whole and the central issued claimed was illegal exit and the Judge had given multi-faceted and secure reasons for finding that the Appellant’s evidence was unreliable. The Appellant then sought to renew the Grounds of Appeal, in which is argued, inter alia, that the First-tier Tribunal Judge failed to engage with the Country Guidance case of MST and others (national service – risk categories) Eritrea CG [2016] UKUT 443 and it was argued that within the latest Country Guidance case, the Upper Tribunal had considered the “new evidence” relied upon by the Respondent relating to the situation in Eritrea in the form of the 2 new versions of the CIGs and that the Tribunal had not accepted that the new evidence sought to be relied upon by the Respondent had meant that the situation for people who had illegally exited had significantly changed from previous Country Guidance. It is further argued that the First-tier Tribunal Judge omitted to give any consideration to the question regarding whether or not the Appellant was or would be considered to be a draft evader.
7. Permission to appeal has been granted by Upper Tribunal Judge Grubb on the 19th December 2016 who found that whilst there were obvious difficulties with the Appellant’s credibility they were on the face of it inconsistent findings at paragraph 18 and 19 as to whether the Appellant was every conscripted into the Eritrean army. It was said that there it is further arguably unclear as to why the Judge decided that he had not left Eritrea illegally and that it was arguable that the Judge failed to properly consider the claim in light of the Country Guidance case law. He found that in any event the very recent Country Guidance case law of MST and others which was published on the 7th October 2016 which although after the hearing on the 23rd September was before the Judge promulgated his decision on the 11th October 2016 was a relevant Country Guidance case and although not the fault of the Judge given the timings, it was arguably an error of law not to take into account. He therefore granted permission to appeal.
8. It was on that basis the case came before me in the Upper Tribunal.
9. In the Rule 24 Reply from the Respondent dated the 9th January 2017, it was argued by the Respondent that the appeal was opposed and that the Respondent would argue that the First-tier Tribunal Judge had directed himself appropriately and that the Judge was entitled to find the Appellant was not credible and further find that the Appellant did not leave Eritrea illegally, but it was acknowledged that the Judge did not have regard to the decision in MST and others (national service – risk categories) Eritrea CG [2016] UKUT 443.
10. At the start of the oral appeal hearing, Mr McVeety on behalf of the Respondent conceded that he did not agree with the Rule 24 Reply that had been submitted. He conceded specifically that First-tier Tribunal Judge Tobin had got it wrong at paragraphs [25 and 26] and said that although the Judge had said that he was not following the Danish report, he appears to have actually followed it and had not considered the Country Guidance cases when considering whether or not the Appellant had exited illegally at [26]. He conceded that in fact the Judge had not found whether or not the Appellant had in fact exited illegally and that the Judge had simply said that he could not assume illegal exit, and the Judge should have gone on to consider the prescriptive categories of those people who can exit legally. Mr McVeety conceded that the Grounds of Appeal were meritorious and that there was a material error of law in the way the case was considered by the First-tier Tribunal Judge and the decision should be set aside.
11. Ms Johnrose on behalf of the Appellant argued that there did need to be further findings of fact, in terms of whether or not the Appellant had exited Eritrea illegally and whether or not he had been conscripted into military service and whether or not he was or would be perceived to be a draft evader. She submitted that the Judge’s findings regarding the Appellant’s credibility were taken in light of the Judge’s view that the situation in Eritrea had improved, and that in fact all the findings should be set aside and considered in light of the Country Guidance case of MST, and the guidance therein that it continued with the case as in MO that most Eritreans who had left Eritrea since 1991 had done so illegally but that there were viable but albeit still limited categories of lawful exits especially for those of draft age for national service. She argued that the Upper Tribunal should not be a primary fact-finder in respect of the core issues in the case regarding illegal exit and risk upon return both in light of illegal exit and the possibility of being considered a draft evader and that the case should be remitted back to the First-tier Tribunal Judge for a rehearing de novo before a differently constituted First-tier Tribunal.
12. Mr McVeety said that there was strong merit in a de novo hearing in the circumstances of this case, given that further fact finding that would in fact be required and that the facts had to be found in light of the Country Guidance case as to whether in fact the Appellant had exited illegally and whether he would be considered a draft evader, given that it was agreed that the Appellant was of draft age and it was conceded that he was Eritrean. He indicated that he would check with the Respondent as to whether or not the original refusal decision would be maintained in light of the latest Country Guidance information. Both parties therefore agreed that the case should be remitted back to the First-tier Tribunal.
My Findings on Error of Law and Materiality
13. In light of the concessions made by Mr McVeety on behalf of the Respondent, which in my judgement were perfectly properly made, I do find that First-tier Tribunal Judge Tobin has materially erred in his consideration of the risk upon return in this case. At [25] although the Judge states that failure to follow the Country Guidance without good reason is an error of law, failure to follow Country Guidance cases without good reason is an error of law, not a failure to follow country information reports produced by the Home Office. The cases of TM, KM and LZ (Zimbabwe) [2010] EWCA Civ 916, are not authority for the proposition that country information reports produced by the Home Office have to be followed unless there is good reason for doing so, it is authority for the proposition that Country Guidance cases have to be followed unless there is a good reason for not doing so. Therefore, although the Judge was entitled to consider whether or not the Home Office evidence was sufficiently good reason, in terms of there being a change in the situation in Eritrea to the situation of returnees and said that the old cases of MO and MA should not be followed, had it not been for the subsequent case of MST, the Judge erred in finding that despite the limitations on the Home Office evidence, he was obliged to follow such evidence from the Home Office unless there was a good reason for not doing so. The Judge nowhere has actually engaged with the Country Guidance cases.
14. As at the date of the hearing, the Country Guidance at that stage was the case of MO and MA, and although I do not criticise the Judge in this regard, it is clear that on the date when his decision was written, on the 7th October 2016, the most up-to-date Country Guidance in the case of MST and others (national service – risk categories) Eritrea (CG) was promulgated. The decision of Judge Tobin itself was not promulgated until the 11th October. In such circumstances, although the Learned Judge was not referred to the same in evidence, there was more a more up-to-date Country Guidance case on the date of his decision, and certainly by the date of promulgation. That more recent Country Guidance case should have been taken into account by him, in determining the Appellant’s risk upon return. It was not. As conceded by Mr McVeety on behalf of the Respondent, that does amount to a material error of law.
15. I further find that in fact although the Judge opined that the situation for “illegal exiters” returning to Eritrea had improved, in fact the Country Guidance in the case of MST did not accept the Danish FFM reports, and confirmed that a person of or approaching draft age; who is not medically unfit and who has accepted he has left Eritrea illegally is reasonably likely to be regarded with serious hostility upon return, subject to limited exceptions. The Judge had not therefore taken account of the latest Country Guidance in finding that things had improved for illegal exiters upon return, and in any event he has not engaged with the limited categories of people who would be considered to be able to have left illegally without risk upon return as set out within MST and the previous Country Guidance case of MO. The Judge made no findings as to in fact whether or not the Appellant has exited illegally and has simply said that he does not assume that the Appellant exited illegally and was not going to speculate that he did. However he has failed to engaged with the Country Guidance cases in that regard as to whether or not the Appellant did fit into one of the people who could be said to have exited illegally. Nor has the Learned Judge dealt with the question about whether or not the Appellant would be likely to be perceived as a draft evader upon return.
16. I therefore do find that the decision of First-tier Tribunal Judge Tobin does contain material errors of law and is set aside.
17. I further do find that in the circumstances of this case, where the Appellant’s credibility has been viewed in light of the Judge’s consideration that the situation for illegal exiters had improved in Eritrea and without the Judge having considered the Country Guidance cases as to the very limited categories of people who could exit illegally, I do find that in conducting a holistic assessment of credibility, this is not a case where it is simply that the Country Guidance case can be superimposed upon existing findings of fact made by the First-tier Tribunal Judge, but as argued by Mrs Johnrose and conceded by Mr McVeety, that the entirety of the fact finding and the Appellant’s credibility has to be considered again in light of the proper approach as set out with the Country Guidance case MST and others. I therefore do find in light of the extent of fact finding that will be required in this case, that it is appropriate for the case to be remitted back to the First-tier Tribunal for a rehearing de novo before any First-tier Tribunal Judge other than First-tier Tribunal Judge G. Tobin.
Notice of Decision
The decision of First-tier Tribunal Judge G. Tobin does contain material errors of law and is set aside;
The case is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge G. Tobin;
I make no order in respect of anonymity, no such order having been sought before Judge Tobin, or before myself.
Signed

Deputy Judge of the Upper Tribunal McGinty Dated 22nd March 2017