Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10752/2018

THE IMMIGRATION ACTS

Heard at Leeds Combined Court Centre
Decision & Reasons Promulgated
On 15 July 2019
Decision given at hearing
On 08 August 2019

Before

THE HON. MR JUSTICE LANE, PRESIDENT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

EG
(ANONYMITY ORDER MADE)
Respondent
(Claimant)

Representation:

For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent (Claimant): Mr Sills, Counsel, instructed by JD Spicer Zeb Solicitors

DECISION AND REASONS

1. This is an appeal brought by the Secretary of State against the decision of First-tier Tribunal Judge Cox who, in a decision that followed a hearing on 1 November 2018, allowed the claimant's protection appeal.
2. The claimant is a national of Ethiopia. He arrived in the United Kingdom at some point in 2018 and claimed asylum. In August of 2018, the Secretary of State refused the claimant's asylum and protection claims. The judge heard evidence from the claimant and had regard to the country materials and submissions of the parties.
3. In essence, the claimant is an Amharic Ethiopian who in June 2016 started supporting an organisation known as Ginbot 7. He was inspired to do so by his sister, who had been a supporter since 2015. The claimant attended secret monthly meetings at Ginbot 7. There were five members of his particular cell. Meetings were held in different houses. The claimant contributed financially to the cell. He also distributed leaflets in support of Ginbot 7.
4. In December 2017, whilst a meeting at the cell was occurring, the police raided the house. The claimant was arrested, along with other cell members, and was taken to the police station, where he was detained for about fifteen days and interrogated. He was also ill-treated by the police during that time. The claimant was then released after his father had paid a bribe. The claimant was taken to his father's and arrangements were then made for the claimant to leave Ethiopia with the assistance of an agent.
5. Since arriving in the United Kingdom, the claimant had become a member here of Ginbot 7, having joined a branch of the organisation in May 2018.
6. The Secretary of State accepted that the claimant was a national of Ethiopia; that he was a supporter of Ginbot 7 in Ethiopia; and that he is also now a low-level member of that organisation in the United Kingdom. The Secretary of State, however, rejected the claimant's claim that the authorities had arrested and detained him in Ethiopia.
7. Having heard evidence, the judge came to the conclusion that the claimant's account of what had happened to him in Ethiopia was reasonably likely to be true. In so doing, the judge undertook what can only be described as a painstaking and careful exercise in analysing the evidence. There is nothing remotely wrong with the judge's conclusions. Having made those findings of fact, the judge then considered the evidence regarding Ethiopia and the attitude of the authorities there to Ginbot 7.
8. At paragraph 45 the judge considered the CIPN summary. That summary was in the judge's view significant in that it remained on the Secretary of State's website notwithstanding the changes in Ethiopia that the judge mentioned in paragraph 46. The CIPN summary stated that those who had been arrested in connection with being a member of various groups or who had previously come to the adverse attention of the authorities through activities connected to such a group were likely to be at risk of persecution or serious harm on return. The judge considered that that was relevant to the appellant's case. He did so notwithstanding the finding at paragraph 46 that in July 2018 the government removed Ginbot 7 from its list of banned groups.
9. The judge noted the submissions of the Presenting Officer that the situation in Ethiopia continued to improve. In that regard, the judge noted at paragraph 49 that in September 2018 the exiled leader of Ginbot 7 had returned to Ethiopia. Nevertheless, the judge recorded at paragraph 50 the submission by Counsel for the claimant that, notwithstanding the above events, the situation was "fluid". In that regard, the judge noted evidence from Human Rights Watch which suggested a more equivocal position on the ground than might otherwise be assumed.
10. The judge also noted that there had been recent violence and tension in Addis Ababa, caused in part by the return of some exiled previously banned politicians. In this regard the judge referred to an Amnesty International Report of September 2018. There was also reporting to the same general effect in the Guardian newspaper. Overall, the judge recorded the appellant's Counsel's submissions as being that the evidence did not suggest there had been a lasting change in the situation in Ethiopia.
11. In paragraph 57, the judge explained why in essence he agreed with that conclusion. At paragraph 60 the judge noted paragraph 339K of the Immigration Rules which provides as follows:-
"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."
12. At paragraphs 62, 63 and 64 the judge said:-
"62. I have found this appeal difficult to determine. On the one hand, the new prime minister has clearly taken significant steps in seeking to reform the oppressive and repressive nature of the regime. In particular, he removed Ginbot 7 from the terrorist list and welcomed back leading members of the organisation to Ethiopia. On their part, Ginbot 7 has announced that they have suspended its armed resistance against the government. These factors all suggest that the Appellant is unlikely to be harmed on his return to Ethiopia.
63. However, these changes have all occurred within a relatively short period and I do not know if they represent a meaningful change in the authority's attitude to political activities. Although it is probable that the Ethiopian authorities no longer have an adverse interest in the Appellant, it is my view, I cannot exclude the possibility that they still have an adverse interest in him. Especially as I have found that his release from detention was secured by bribery.
64. On the totality of the evidence, I am satisfied that the Appellant has a well-founded fear of the Ethiopian authorities persecuting him and I allow the asylum appeal."
13. The Secretary of State's grounds of application to the First-tier Tribunal for permission to appeal to the Upper Tribunal asserted that the First-tier Tribunal Judge had materially erred in determining future risk. Despite finding that the evidence is not indicative of future risk, the judge was said to have allowed the claimant's appeal on the basis that his previous persecution is accepted as credible: "therefore the FtT Judge has erred in finding that past persecution is determinative of the risk the claimant now faces rather than simply indicative of any future risks". With respect to the draft of those grounds, which is not by Mrs Pettersen, that is in my view a serious mischaracterisation of the judge's decision.
14. The First-tier Tribunal granted permission to appeal on the basis that the finding at paragraph 63 of the judge's decision - that it was probable the Ethiopian authorities no longer had an adverse interest in the claimant but that the possibility could not be excluded - does not sit with earlier findings at paragraph 62 of the decision where the judge had referred to the steps that the Prime Minister was taking to reform the oppressive and repressive nature of the regime. Being with respect I disagree. The judge in my view has plainly applied the law correctly. The judge has concluded that the claimant suffered ill-treatment at the hands of the authorities recently. He has considered the changes that have occurred in Ethiopia but, although finding that those changes mean it is more likely than not that the claimant would not be persecuted on return, the judge does not consider that those changes have a sufficient degree of robustness to make it no more than fanciful that the claimant would suffer harm.
15. That was an entirely permissible approach to take. Regrettably, in my view the First-tier Tribunal has been all too ready to grant permission to the Secretary of State on grounds which, on analysis, simply do not cohere.
16. For these reasons this appeal is dismissed.

Signed Date: 08 Aug. 2019

The Hon. Mr Justice Lane
President of the Upper Tribunal
Immigration and Asylum Chamber

Direction Regarding Anonymity - rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the claimant 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 claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of court proceedings.