Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/07196/2018
PA/07223/2018
PA/07224/2018

THE IMMIGRATION ACTS

Heard at Manchester Civil Justice Centre
Decision & Reasons Promulgated
On 23rd July 2019

On 08th August 2019

Before

UPPER TRIBUNAL JUDGE CHALKLEY

Between

HAILU Amare kesto
seid bedru
zema tefera
(ANONYMITY DIRECTION not made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Sills of Counsel instructed by J D Spicer Solicitors
For the Respondent: Mr Chris Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. All three appellants are nationals of Ethiopia. The first appellant was born on 26th October 1995, the second on 11th May, 1994 and the third on 13th May, 1990. It appears that they were members of a circus troupe which originally travelled to the Edinburgh Festival to perform in the Festival and subsequently performed at the Grenfell Memorial Concert in London.

2. They individually claim that between September and October 2016, they were each arrested by the authorities in Ethiopia as a result of being caught distributing leaflets on behalf of the Blue Party in Ethiopia.

3. They originally came to the United Kingdom on a date unknown some time on or after 23rd June, 2017 to perform as members of a circus group at the Edinburgh Festival and then subsequently at the Grenfell Tower Memorial. They returned to Ethiopia and remained there until 22nd November 2017 when they returned to the United Kingdom and made application for asylum. Their claim was rejected by the respondent on 24th May 2018, as a result of which each of them appealed to the First-tier Tribunal.

4. Their appeals were all linked and were heard jointly by the First-tier Tribunal on 12th February, 2019. In hearing their appeals, First-tier Tribunal Judge Birrell concluded that the appellants were all members and supporters of a legal opposition party in Ethiopia, namely the Blue Party, but she did not believe that they were members or supporters of PG7, an illegal party in Ethiopia. She did not believe that the appellants had been interviewed by ESAT TV channel at the fundraising event organised by the Ethiopian Community UK to raise funds for victims of the Grenfell Tower incident which took place on 15th and 16th July 2017. Neither did she accept that the first appellant had attended a meeting in London for a high profile PG7 member before having returned to Ethiopia. She did not believe the appellants were credible in relation to their claimed interview with ESAT in the absence of any evidence from the TV channel that such an interview took place, either with a narrative account of the contents of the interview, or a copy of the audio file of the interview and their comments. The company in question was based in the United Kingdom.

5. There was no evidence either from members of the Ethiopian community in the United Kingdom who organised the Grenfell fundraising, confirming that an interview with the appellants took place with ESAT and she concluded that the first named appellant had not attended a meeting in London for a high profile PG7 member because there was no evidence from Facebook to show the photograph which it was claimed had been seen by the public and published and no evidence from anybody who had attended the demonstration which apparently was organised by the Ethiopian community in Manchester. There was no evidence either that it had been posted on social media and no evidence from the organisers of the event. There was nothing to link the event to the PG7 protest in general. She concluded that the appellants were all economic migrants and while they had been supporters of the Blue Party in Ethiopia, that support had never put them at risk of persecution. She did not accept that they were perceived to be or would in future be perceived to be supporters of PG7. She did not believe that they would be at any risk on return to Ethiopia.

6. There were several challenges to the determination. The first was of an alleged failure to make reasoned findings and consider material matters in relation to past persecution; a failure to make required findings on risk on return on the basis of their accepted political membership of the Blue Party; and a failure to apply the respondent's policy guidance to the facts of the appellant's case. Mr Sills relied on the respondent's policy document: Ethiopia: opposition to the government, which states in material part,

"3.1.5 Members or supporters of non-armed opposition groups whose profile is such that the government perceives them to be active or influential in the opposition and a threat to the state may be at risk of arbitrary arrest, detention and physical abuse which is likely to amount to persecution or serious harm.

3.1.6 However, persons who have a low profile or who are not active in an opposition group may face harassment or discrimination but, in general, this will not reach the level to constitute persecution.

3.1.7 The onus is on the person to show that their position within an opposition group and/or their activities are such that the authorities are likely to view them adversely and subject them to treatment amounting to persecution or serious harm."

7. The judge accepted that the appellants were each of them members of the Blue Party and accepted that they had been detained for distributing leaflets. The judge found that they would not be at risk given their membership and previous detention, but failed, it is alleged, to give reasons or determine material issues arising from this acceptance. In particular it is said that the judge should have made clear findings on whether or not the appellant had suffered past persecution.

8. Next it was suggested that the judge erred by failing to consider whether their continued political activities as Blue Party members would put them at risk in future, given their previous arbitrary detention for distributing leaflets and previous persecution. Next it was suggested that the judge erred by failing to clearly determine whether the appellants fell under paragraph 3.1.5 of the respondent's policy document. Next it was asserted that the judge failed to apply Immigration Rule 339L and in particular the judge failed to consider that any information held by a media company was not at the disposal of the appellants and that significant corroboration had in any event been provided, given that the account was plausible and coherent and made promptly, once each of them realised they were at risk. It was then asserted that the judge failed to consider the evidence in the round. Other challenges were repetitious.

9. In addressing me at some length, Mr Sills suggested that without clear findings as to the appellant's past persecution during their arbitrary detention, the judge was not able to properly assess the risk to the appellants on their return. He submitted that where at paragraph 101 the judge said:-

"The appellants all claim to have been arrested for distributing leaflets. There is nothing about that which is inconsistent with background material that supporting opposition parties puts one at risk of harassment or even detention. I am satisfied however that if the authorities had genuinely believed that any of the appellants were supporters of PG7 an illegal party they would not have been released as they were they would not have been allowed to remain in their jobs and they certainly would not have been allowed to leave the country with no difficulty whatsoever. That party membership and even their detention does not place them at any risk on return as they were all clear that they intended to return after the last trip to the United Kingdom."

10. Mr Sills submitted that that was inadequate. The fact that the appellants had all been persecuted during their previous detention meant that there was a heightened risk to them on their return. The fact that they had left Ethiopia, come to the United Kingdom and then returned to Ethiopia did not necessarily mean that they did not at the time of their return have a well-founded fear of persecution. The judge should have applied the respondent's policy guidance, they were members of a non-armed opposition group and their profile was such given that they had previously been arrested and tortured have perceived to be active or influential in the opposition. The failure by the judge to make any clear reasoned finding on whether or not they had suffered persecution was he submitted a clear error of law. He suggested that there was no clear finding on whether or not given their past political activities on behalf of the Blue Party and the likelihood of them continuing their Blue Party membership activities on return whether they would be at risk of further detention. That was a material error of law and he submitted the failure of the judge to properly apply Rule 339L in relation to the evidence of their sur place activities amounted to a clear error of law.

11. Mr Bates accepted that the judge had failed to make specific findings in relation to each of the appellants' claimed mistreatment during their period of detention, but he submitted that it was not material in the context of this appeal. After the time that they had been detained they were released and they remained in Ethiopia, but nothing happened to them. They continued working in Ethiopia, but nothing happened to them and then they were allowed to leave and come to the United Kingdom as part of a circus troupe. Having been in the United Kingdom for approximately two months during the summer of 2017 they then returned to Ethiopia. There was no evidence that they had been vocal in Ethiopia or that they were of any interest to the Ethiopian authorities, either before they left Ethiopia, or when they subsequently returned, or indeed now. As to the assertion that the judge erred by finding that the appellant's credibility was significantly undermined by the absence of any evidence from the TV company such that an interview took place with either the narrative account of the contents of that interview or a copy of the audio file of the interview and their comments on whether they were aware of it having been broadcast in Ethiopia or having come to the attention of the Ethiopian authorities, he submitted that that was something which was open to the judge. She pointed out that the company was based in the United Kingdom that according to the appellants, they were supporters of PG7. There was no evidence either from the members of the Ethiopian community who organised the Grenfell fundraising who might have been able to confirm that an interview with a TV station took place and the sort of questions that were asked. The judge said at paragraph 107 that she reminded herself that the appellants bear the burden of establishing this aspect of their case and they failed to meet it. She was entitled to conclude that they had fabricated the account in order to remain in the United Kingdom. She was entitled to find that they had fabricated a significant element of their claim. Similarly, she was entitled to find that the first appellant had failed to prove that he had attended a meeting in London for a high profile PG7 member, because there was no evidence from Facebook to show that a photograph had been seen by the public, or that it was published there and no evidence from the person who took the photograph. There was no evidence either to corroborate the claim that the second appellant attended a demonstration organised by the Ethiopian community in Manchester.

12. He submitted that the appellants may very well have been mistreated in the past, but they came to the United Kingdom having been released and remained in Ethiopia until travelling to the United Kingdom in the summer of 2017. They continued with their jobs and having performed in their circus troupe for two months at various events they then returned to Ethiopia. The judge has given clear reasons why she rejected the appellants' sur place element of their claim.

13. Mr Sills invited me to allow the appellants' appeal, set aside the determination and remit it to the First-tier Tribunal for making afresh. I reserved my determination.

14. It is clear from the determination that the judge was satisfied that each of the appellants were members and have been supporters of the legal opposition party in Ethiopia, known as the Blue Party. Their evidence was consistent with those who were long term supporters of the party. She noted that they all claim to have been arrested and mistreated as a result of their activities on behalf of the Blue Party, but she said at paragraph 104 of the determination that she was satisfied that if the authorities had genuinely believed that the appellants were supporters of PG7 an illegal party (as opposed to the Blue Party which of course is legal), then they would not have been released as they were and would not have been allowed to remain in their jobs and not have been allowed to leave the country with no apparent difficulty. They did leave the country as part of a circus group. The judge pointed out that their party membership and even their detention did not place them at risk on return as they had all been clear that they intended to return after the last trip to the United Kingdom and in fact of course they all did return and nothing happened to them. The judge went on to find that the appellants' accounts of attending demonstrations were largely consistent with the background material but there was no suggestion that they had got into any trouble for that or that it prevented them from travelling abroad on a regular basis. They claimed however that a significant change in their circumstances arose from their participation in the interview with ESAT TV channel and the audio of that interview and a photograph coming to the attention of the Ethiopian authorities. She believed it was unclear why it had taken from July 2017 when the interview was alleged to have taken place, until September, 2017 for the material to come to the attention of the Ethiopian authorities, but noted that it meant that the appellants, conveniently, were able to return to Ethiopia after the interview and then return to the United Kingdom without being detained.

15. Given the ease with which it would have been possible for the appellants to have obtained some corroborating evidence from the TV channel or from members of the Ethiopian community in the United Kingdom who organised the Grenfell fundraising event, she concluded that the appellants' credibility was significantly undermined. I believe that she was perfectly entitled to find that the appellants' credibility had been damaged by that lack of evidence. There was no indication that any attempt had been made to obtain it. But an approach to the tv company for evidence would not have caused any risk to the appellants. The judge was entitled to conclude that the appellants had fabricated a significant element of their claim and that the first and second appellants had attempted to bolster their claim with modest engagement in political activities in the United Kingdom. It was said that the first appellant attended a meeting for a high profile PG7 member, but again nothing to corroborate that and that the second appellant attended a demonstration organised by the Ethiopian community in Manchester and no evidence of the person who took the photograph and no suggestion that the photograph had been posted on social media and no evidence from organisers of the event. Again, an approach to the community in Manchester would not have caused the appellant's to be put at any risk. As it was, it appears that no attempt to obtain such evidence was ever made. The standard of risk in a low one, but there still is a standard the appellants have to reach. The judge found that the appellants had failed to prove the truth of the facts upon which they relied and had therefore failed to prove that they were entitled to be treated as credible witnesses. She was satisfied that they were all economic migrants and whilst they may have been supporters of the Blue Party in Ethiopia, that support never put them at risk of persecution. She did not accept that they were perceived to be or would be in future perceived to be supporters of PG7 and did not believe they would be at any risk on return. I have concluded that the determination does not contain any material error of law on the part of the judge. She very clearly did consider all the evidence in the round. As to the appellants' policy, given her findings it is clear that the appellants did not meet the requirements of that policy. I uphold the judge's determination. The appeals are dismissed.

No anonymity direction is made.

Richard Chalkley

Upper Tribunal Judge Chalkley

I have dismissed the appeal and therefore there can be no fee award.

Richard Chalkley

Upper Tribunal Judge Chalkley

Dated 30 July 2019