Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10701/2019

THE IMMIGRATION ACTS

Heard at: Manchester CJC (Remote)
Decision & Reasons Promulgated
On the 6th June 2022
On the 14th July 2022

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SH
(anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

DECISION AND REASONS

1. The Appellant is a national of Ethiopia born in 1994. He seeks protection on the grounds that he faces persecution in Ethiopia for reasons of his political opinion.

2. The Respondent refused the Appellant’s asylum claim on the 22nd October 2019. It was accepted that the Appellant is an Ethiopian national who has since 20151 been a supporter of Ginbot 7. It is further accepted that in 2016 the Appellant was arrested and held in detention for 2 months as a result of this political allegiance, during which time he was subjected to torture and other ill-treatment. Protection was however refused on the grounds that the Appellant no longer had a well-founded fear of persecution. The crux of the Respondent’s position is expressed at paragraph 33 of her decision:

“Although previously it has been accepted that political opponents in Ethiopia will be at risk of persecution if they have come to the attention of the authorities, it is considered that there is enough cogent evidence to mean that it is appropriate to depart from the previous findings. The new government in Ethiopia has brought about changes designed to create a more open Ethiopia where political discourse is acceptable, to the point where it is not considered there is a general risk for political opponents, even those who have previously come to the attention of the authorities”

3. The letter went on to examine in greater detail the fate of Ginbot 7 and its apparent acceptance by the Ethiopian government led by Abiy Ahmed.

4. When the Appellant appealed the matter came before First-tier Tribunal Judge Gribble, who accepted the Respondent’s analysis that the position in Ethiopia had materially improved such that there was not a real risk of the Appellant suffering any more persecution for reasons of his political opinion. The appeal was accordingly dismissed.

5. The Appellant was granted permission to appeal to the Upper Tribunal and on the 18th August 2020 the matter came before Upper Tribunal Judge O’Callaghan. In his written decision dated the 14th September 2020 Judge O’Callaghan found Judge Gribble to have materially erred in law in failing to take a Demirkaya approach to the historical persecution suffered by the Appellant, as he was required to do by paragraph 339K of the Immigration Rules. Nowhere did Judge Gribble ask himself whether there were “good reasons to consider that such persecution will not be repeated”. Although his decision had noted that Ginbot 7 no longer functioned as a political party in Ethiopia, this was not the end of the matter. As Judge O’Callaghan puts it, “this does not necessarily mean per se that those of its supporters who have been identified by Ethiopia’s authorities as oppositionist activists are no longer at risk”. The decision would need to be remade taking into account the country background evidence on the prevailing situation in Ethiopia.

6. At the appeal before me the parties’ submissions were brief.

7. Mr McVeety acknowledged that the situation in Ethiopia could plainly not be said to be as positive as it had been hoped at the date that the refusal letter had been written. In particular he accepted that it could not at present be said that Ethiopia was “more open” or tolerant of political dissent: although the decision in Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 00001 (IAC) was not directly on point – that case relates to supporters of the Oromo Liberation Front – it was relevant to my assessment of the general human rights situation, which could fairly be described as poor. That said Mr McVeety submitted that there were nevertheless good reasons to find that this Appellant would no longer be at risk of persecution in Ethiopia. A long time had passed since his detention; he was no longer involved in politics (at least there was no evidence to say that he was); the party to whom he had shown allegiance in the past, Ginbot 7, was disbanded; its former leaders had returned to Ethiopia to participate in the political process unhindered.

8. Mr Howard asked me to have regard to the general instability in the situation in Ethiopia. At the date of the refusal letter it looked like things were markedly improving; the decision in Roba illustrates that this was unduly optimistic. Mr Howard referred me to recent country background evidence indicating that the government of Abiy Ahmed continued to target political opposition. As to the passage of time, Mr Howard submitted that there was no obvious change in the reasons underpinning the suppression of dissent in Ethiopia and to that extent the fact that the Appellant’s detention was now some years ago was not of much relevance. He had been detained for a lengthy period and ill-treated. There would have been a record of his detention. As someone returning to Ethiopia he would still be immediately identifiable as someone who had been involved in an opposition movement.

Discussion and Findings

9. My starting point must be the instruction at paragraph 339K of the Immigration Rules:

339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

10. The Secretary of State accepts that the Appellant has already been subject to serious harm. The nature of that harm was set out by the Appellant in his asylum interview and witness statements. He is from the Silt’e ethnic group and was born in Silt’e, where much of his family remain. Silt’e is a province immediately adjacent to Oromia to the south of Addis Ababa. In 2016 he was living in Yerer Garo, a suburb east of Addis Ababa. The Appellant was leaving his house in the evening when the police arrived at his door. He was seized and told that he was being arrested for being “anti-peace”. He was taken to jail. The Appellant describes the conditions in the prison as filthy – it was overcrowded and people had to defecate in the cells. He was held there for approximately two months before his uncle managed to get him out. They took him to hospital for treatment – his “body was full of wounds” and in “bad shape” - and within 4-5 days had made arrangements for him to travel to Sudan. Unfortunately the interview does not probe how it was that the Appellant came to be released from prison. The answer is found in the medical report prepared by a Home Office instructed doctor when the Appellant was held in immigration detention: he told that doctor that he contracted a severe enteric disease due to the poor hygiene in prison, was transferred to a hospital when he became very sick, and managed to get out from there.

11. The background to that arrest was that the Appellant and his friends had been working for the pan-ethnic political party Ginbot 7 for about a year. They had been distributing leaflets and encouraging people to support the party. Some of his friends had been detained before him, and he believes that he was given up by one of them. He believes that because after his own arrest he was put under pressure to give the police names of others involved. The Appellant states that he joined Ginbot 7 because he disagreed with the way that politics in Ethiopia was arranged on ethnic lines – once one group gets power they just privilege their own. There is corruption so that even graduates of the ‘wrong’ ethnic group cannot get work. Ginbot 7 were fighting against this system, and for human rights.

12. After the Appellant arrived in the UK he did have some contact with another Ginbot supporter from Birmingham but then they lost touch. At interview he is asked why he has not continued his involvement and he said that after he arrived here he was detained for a long time because the government wanted to send him to Italy, and he ended up sat at home for a year after which he “could not think properly”. Also he did not have the money to travel (I understand this to mean to get to meetings etc). The Appellant said that he follows the situation in Ethiopia via the media and that if returned to Ethiopia he would not be able to stand by and just watch – he would feel the need to be involved again. The government are still displacing and killing people.

13. These are the accepted facts. Now I must determine whether there are good reasons to consider that the persecution suffered by the Appellant will not be repeated.

14. The parties before me agree that the recent country guidance in Roba is relevant insofar as it speaks to the prevailing human rights situation in Ethiopia, and in particular to the Respondent’s original case that the government of Abiy Ahmed have opened up the political discourse (see above).

15. Mr Roba was a supporter of the Oromo Liberation Front whose claim for asylum had been rejected on similar grounds to those expressed in this appeal. The First-tier Tribunal had accepted that there had been material improvements in the human rights situation under Abiy Ahmed and had dismissed the appeal. Before the Upper Tribunal the Respondent accepted that whilst there had been a window of improvement in 2018-2019, things had now taken a significant turn for the worse. The government responded to an attempted coup in June 2019 by closing down political debate and targeting media outlets which failed to comply. In June 2020 the prominent Oromo singer and cultural icon Hachalu Hundessa was assassinated: hundreds of people were killed, and thousands arrested, by government forces suppressing the protests that followed. As a result of these developments, the Respondent accepted that the existing country guidance on OLF members and supporters had to be maintained. The resulting country guidance was that OLF supporters who had been previously arrested or detained, or an otherwise significant history of involvement, would in general be at risk of persecution. The Tribunal clarified that:
'Significant' should not be read as denoting a very high level of involvement or support. Rather, it relates to suspicion being established that a person is perceived by the authorities as possessing an anti-government agenda. This is a fact sensitive assessment.

16. Mr McVeety acknowledged this evidence but submitted that for this Appellant, three significant factors should lead me to find that there is today no risk. The first is that the political party that the Appellant was associated with – Ginbot 7 – is no longer banned, and in fact has formally disbanded. The CPIN from which this information is derived has now been withdrawn, but the salient points are set out in the refusal letter. Pursuant to Proclamation 652 of 2009 the Ethiopian cabinet rescinded the designation of Ginbot 7 as a terrorist group. Parliament approved an amnesty law and Andargachew Tsege, former Ginbot-7 second-in-command was made subject to a “pardon under special circumstances” enabling him to return to Ethiopia. The second is that a significant amount of time has passed since the Appellant was detained on suspicion of anti-government activity: it is approaching 7 years. Finally there is no indication that the Appellant has continued his involvement in oppositionist politics since he arrived in the UK.

17. I have considered all of these submissions in light of the country background information on Ethiopia but I have concluded that taking the approach set down in the rules there are not good reasons to find that the risk to the Appellant will have abated to the extent that he no longer requires protection.

18. The primary focus of the Respondent’s decision was the unbanning of various political parties in 2018 as part of Abiy Ahmed’s short lived liberalisation policy. Ginbot 7 was one of those groups. I must look at that edict in context. This was a party whose members and supporters had suffered serious harm under the EPRDF regime and who had openly protested about that party’s stranglehold on power in Ethiopia. It was declared a terrorist organisation in 2011. Today the EPRDF, the governing party who oversaw the Appellant’s detention, has itself been dissolved but as the background information cited in Roba explains, its structures, ideology and vested interests have largely survived the transition to the Prosperity Party who are now officially in power. In short the personnel, particularly in the security services, have remained constant: they continue to commit human rights abuses against those who oppose them. It is relevant to note that in Roba the Tribunal accepted that such abuses continue to be reasonably likely to be perpetrated against perceived supporters of the OLF – also an organisation ‘unbanned’ in 2018. As the Appellant explained in his interview, the defining feature of G7’s ideology was that it was opposed to the factionalisation of Ethiopian democracy along ethnic lines. That remains a particularly sensitive issue, given the open warfare now being waged by the government against certain ethnic groups.

19. Thus while Mr McVeety is right to point to the passage of time as a potentially relevant factor, I cannot be satisfied that in this case it will have obviated risk to the extent that the Appellant does not require protection. He was subject to a lengthy detention because of his association with a party who opposed EPRDF rule. Many of the former EPRDF cadres, in both the political and military spheres, remain in power. Notwithstanding his lack of sur place activity it is the Appellant’s accepted evidence that he remains committed to pluralist democracy and is ideologically opposed to the way that politics is run in Ethiopia. The human rights situation in Ethiopia is at present extremely poor. All of those factors lead me to conclude that this appeal must be allowed.

Decisions

20. The decision of the First-tier Tribunal is set aside.

21. The appeal is allowed on protection and human rights grounds.

22. Having had regard to the new Presidential guidance on anonymity orders Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private I bear in mind the importance to be attached to the principle of open justice. I have nevertheless decided to make an anonymity order in this matter, in light of the fact that the Appellant still has family members in Ethiopia. Accordingly I make an order for anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in the following terms:

“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, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Upper Tribunal Judge Bruce
17th June 2022