Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005306

First-tier Tribunal No: PA/55280/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th June 2025.

Before

DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

JE
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Doerr, Counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Ms S McKenzie, Home Office Presenting Officer

Heard at Field House on 20 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant appeals with permission of the Upper Tribunal granted on 3 December 2024 against the decision of the First-Tier Tribunal (“the FtT”) given on 19 August 2024 to dismiss the appellant’s appeal against the refusal of his asylum and human rights claim.
2. The appeal came before the Upper Tribunal at an error of law hearing on 20 March 2025. At the hearing I heard submissions from the parties and reserved my decision. For the reasons set out below, I find that there was an error of law in the decision of the FtT and set the decision aside and remit the case back the FtT to be heard anew before a different Judge.
3. The FtT made an anonymity order in this appeal, and I have considered whether it is appropriate for that order to continue pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended). Having taken into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, I am satisfied that it is appropriate to make such an order because the appellant has made an application for international protection and we consider that the UK’s obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process outweigh the public interest in open justice at this stage in the proceedings.
Background and FtT Decision
4. The appellant is a national of Ethiopia born on 10 January 2005. He is of Oromo ethnicity. The appellant alleged that he attended demonstrations in 2016 and 2020 in Ethiopia in support of the Oromo people and that on both occasions he was arrested, detained for substantial periods and tortured. On 5 February 2021 the appellant maintains that he escaped from prison in Ethiopia and made it to his uncle’s house and his uncle supported him in leaving the country.
5. He left Ethiopia shortly after he turned 16 and crossed into Sudan on 1 March 2021 with an agent and then travelled through Libya, Italy and France and arrived in the UK on 28 December 2021 clandestinely via lorry and claimed asylum on the same day. He sought international protection in the UK on the basis that he would be persecuted if he returned to Ethiopia on account of his/his father’s actual or imputed political opinion/support for the OLF and/or his ethnicity. The appellant turned 18 on 10 January 2023.
6. The respondent refused the appellants protection claim in a written decision dated 27 July 2023. The respondent accepted the appellants identity, date of birth and ethnicity and that he had participated in two demonstrations whilst in the UK against the Ethiopian government. However, the respondent rejected the claim that the appellant was at risk of adverse attention from the Ethiopian authorities on account of his perceived political activity whilst in Ethiopia as the respondent did not accept the credibility of the evidence put forward by the appellant in relation to the events in 2016 and 2020. With regard to the appellants claim that he feared persecution, if returned to Ethiopia, on the grounds of his ethnicity or his sur place activities in the UK the respondent did not accept this having regard to CPIN Ethiopia: Oromo, the Oromo Liberation Front and the Oromo Liberation Army, Version 1, March 2022 and the case law AAR (OLF – MB confirmed) Ethiopia CG [2022]UKUT 0001 (IAC) which in the respondents view clearly stated that only a person with a significant history of membership or support for the OLF, or perceived by the authorities to have a significant history of membership or support, is likely to be at risk of persecution or serious harm. The respondent did not accept that there was any evidence to support any significant membership or support for the OLF or that he had come to the adverse attention of the authorities whilst in Ethiopia or the UK.
7. The appellant appealed the respondent’s decision under sections 82 and 84 of the Nationality Immigration and Asylum Act 2002 to the FtT.
8. The FtT rejected the appellant’s appeal. In particular the FtT rejected the appellants claim that he was arrested and detained by the authorities in 2016 and 2020 in light of numerous inconsistencies in the key elements of the appellants account and the FtT rejected his account that he was beaten and tortured while in detention. In particular the FtT set out at paragraph 24 of the determination a number of inconsistencies in the appellant’s evidence that undermined his credibility.
9. In relation to the evidence that the appellant attended one demonstration and one meeting in the UK the FtT was satisfied that the appellant did not play a major role and there was insufficient evidence to show that the appellant would have come to the adverse attention of the Ethiopian authorities. In conclusion the FtT found that the appellant did not fall into the one of the risk categories in MB (OLF and MTA – risk) Ethiopia CG 2007 UKAIT 30.
10. The FtT dismissed the appellant’s appeal.
The error of law hearing
11. There was no skeleton argument submitted on behalf of the appellant and Ms Doerr relied upon the grounds set out in the Grounds for Permission to Appeal dated 18 November 2024. On behalf of the appellant Ms Doerr submitted that there was essentially one ground of appeal – that the FtT credibility assessment was flawed as the Judge failed to take into account relevant evidence and failed to undertake a global assessment of the claim. Her submission focused on four key factors. Firstly, that the FtT had failed to consider the age of the appellant both in respect of his age at the time when he gave an account of past persecution in Ethiopia and in respect of his age when he was interviewed in December 2021. In relation to the interview in December 2021 Ms Doer highlighted that the appellant was only 16 years old at that time and that in her submission the FtT should not have taken into account anything said by the appellant at that interview as he was an unaccompanied child. In her submission this was contrary to both the terms of Immigration Rule 352 and the respondent’s specific policy on dealing with unaccompanied children in the asylum process. Secondly that the FtT had failed to take into account when reaching its decision on adverse credibility the terms of the Age Assessment. Thirdly that the FtT had failed to consider the plausibility of the appellant’s account in light of the country evidence. Fourthly that the FtT had failed to consider whether and to what extent the appellant’s sur place activities in the UK corroborated his claim of past political activities in the UK.
12. For the respondent Ms Mckenzie opposed all four of the points put forward by Ms Doerr.
Discussion and Conclusions
13. In deciding whether the FtT’s decision involved the making of a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114]. In particular I bear in mind the Court of Appeal’s guidance in Ullah [26] (i) the Upper Tribunal should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently; (ii) where a relevant point was not expressly mentioned by the First-Tier Tribunal, the Upper Tribunal should be slow to infer that it had not been taken into account; (iii) when it comes to the reasons given by the First-Tier Tribunal, the Upper Tribunal should exercise judicial restraint and not assume that the First-Tier Tribunal misdirected itself just because not every step in its reasoning was fully set out; and (iv) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law.
14. The appeal in this case is focussed very firmly on the credibility findings of the FtT in relation to the issue of the appellants past activities in Ethiopia. Whilst there was one ground of appeal – relating to the credibility assessment there were four separate points put forward by the appellant. I will deal with each in turn.
Age Consideration
15. Ms Doerr submitted that there was a failure by the FtT to expressly consider credibility in light of the age of the appellant. She drew attention to the fact that the appellant was only 11 years of age when he was involved with the demonstration in 2016 that led to his first arrest and detention and only 15 in 2020 when he was involved in the second demonstration that led to his arrest and detention for a 5 month period. The FtT drew adverse inferences on credibility based upon the evidence that was given by the appellant in relation to what occurred at both of these events (see in particular paragraph 24 of the determination). Ms Doerr’s position is that the FtT entirely failed to consider the age of the appellant at the time these events took place. In her submission it was important that the FtT explicitly state in their determination that they have considered credibility in light of the age of the appellant and clearly engage with that as an issue – and they fail to do this.
16. Ms McKenzie submitted that the FtT did engage with the issue of the age of the Appellant. She referenced the fact that the date of birth of the appellant was clearly referenced at paragraph 1 of the determination; at paragraph 3 there is reference to the appellant “arriving in the UK as an unaccompanied asylum-seeking child.”; at paragraph 26 there is reference to the appellant being a child and the FtT determining not to draw any adverse inferences re the failure to claim asylum in Italy or France as a consequence. Ms McKenzie also referred me to KS (benefit of the doubt) [2014] UKUT 552 (IAC) and the principle there that there is no rule of law that in assessing credibility that minors should be given the benefit of the doubt over and above the lower standard of proof.
17. In my view it is clear from the determination that the FtT had in mind that they were dealing with a child. The determination does expressly state that the appellant was a child at the time he made his application for asylum. The FtT’s determination does not expressly state that in assessing credibility that the age of the appellant at the time of the incidents in 2016 and 2020 was something that was taken into consideration. In relation to the demonstration in 2016 the appellant would only have been 11 years of age. His extreme youth at that time would seem to be a highly relevant factor in relation to the credibility findings at paragraph 24.1 of the determination in respect of discrepancies as to the time of day when the shooting started. The FtT in paragraph 24.1 make no reference to his age. However I do not think that a failure to expressly reference age as a consideration is by itself an error of law in circumstances where it is clear from the determination that the age of the appellant was clearly known to the FtT.
18. Ms Doer also raised the issue of the reliance that was placed by the FtT on what the appellant said at his screening interview in December 2021 when he first arrived in the UK. The appellant was not accompanied at that interview by a responsible adult. At paragraph 24.12 of the determination the FtT state “significantly when asked at his screening interview to briefly explain all the reasons he could not return to Ethiopia, the appellant failed to mention either his detentions in 2016 and 2020 or the treatment he alleges he received while in detention. On the first occasion he says he had to be admitted to hospital and on the second he escaped from prison after eight months with severe injuries caused by torture and beatings: this led directly to him fleeing from Ethiopia. Instead he referred only to earlier incidents when his school kept him in detention during demonstrations and the police destroyed a video he was making about the Oromo people. On his own evidence the school detentions were carried out by the principal, albeit he says that school principals work with the authorities. At the hearing he said he did not mention the school detentions at his full asylum interview because they were not “formal” detentions. Even allowing for the fact the appellant was a child at the time of his screening interview, he was almost 17 and it is not credible that he would not have mentioned any of these events, however briefly, had they occurred. This is a significant omission which undermines the credibility of his claim to have been arrested and detained by the authorities in 2016 and 2020.
19. With reference to Immigration Rule 352 and the respondent’s own policy on dealing with children and asylum claims (“Children’s Asylum Claims, version 4.0 published on 31 December 2020) Ms Doerr submitted that it was wrong for the FtT to place any weight, let alone significant weight, on the screening interview and to draw adverse inferences from any alleged omissions when the appellant was unaccompanied by an adult at the interview.
20. Immigration Rule 352 provides that in relation to an asylum interview “It must be conducted in the presence of a parent, guardian, representative or another adult independent of the Secretary of State who has responsibility for the child”.
21. The respondent’s policy document goes into specific detail on how asylum claims from children should be dealt with. It states specifically that children (being those under 18 at the time they apply for asylum) should not undergo a screening interview but should instead have a welfare interview. There is a specific form for the welfare interview (form ASAL.5097(a)). The Policy document sets out:-
“The purpose of the welfare form is to obtain information that is necessary for a meaningful booking-in process, including bio data and information relating to the child’s needs and welfare concerns. It cannot be used to examine the basis of the claim for asylum. Paragraph 352 of the Immigration Rules states that a parent, guardian, representative or another adult who is independent of the Secretary of State and who has responsibility for the child must be present when a child is interviewed about the substance of their claim. Therefore, the child must not be asked to explain or elaborate on why they are afraid to return to their home country when completing the welfare form. Home Office staff must take particular care to ensure that questioning does not go beyond inviting a response to the questions on the form. The child must be informed that they will have an opportunity to explain these details at a later date. It may be that details or information relating to the substance of their asylum claim are nevertheless volunteered by an unaccompanied child on initial encounter or while the welfare form is being completed. Although this information can be recorded on the welfare form, asylum decision makers must not rely on information obtained from an interview where no responsible adult or legal representative is present unless this information has also been explored and raised with the appellant during the substantive asylum interview in the presence of a responsible adult or legal representative. The child must be given an opportunity to explain any related issues or inconsistencies.”
22. In relation to the appellant, it is clear that he was not given a welfare interview. The document that the FtT refer to as the screening interview in paragraph 24.12 of their determination is in fact headed up “Initial Contact and Asylum Registration Questionnaire.” However, based on the structure of the form it would appear to record what is essentially an interview. Whilst the reason he was not given a welfare interview is not entirely clear it may be because at the time of his arrival into the country there was still some confusion as to his actual age. I note that on the Questionnaire the answer given to question 1.2 to date of birth is 01.01.03 – which would have made him 18 as at the date of the interview on 28.12.2021 – although at question 1.3 in answer to the question “Have you ever used any other names or date of birth?” the appellant appears to have responded with the date of 01.01.2005 – that date later confirmed as his accepted date of birth.
23. Ms Mckenzie for the respondent made the point that the screening interview was not an asylum interview and that Immigration Rule 352 and the policy guidance really applied to the formal asylum interview. In this case that would have been the asylum interview carried out on 06.07.2023 in respect of which a responsible adult would appear to have been present. I do not think that is entirely correct as the guidance set out in the policy is clearly focussed on the welfare interview.
24. It is clear that the FtT have, at paragraph 24.12 of the determination, placed considerable reliance on the omission by the appellant to reference the events of 2016 and 2020. Whilst the policy guidance referenced by Ms Doerr strictly applies to the welfare interview it does seem clear that the overall policy position should apply to any interview that takes place with a child asylum seeker. Ms Doerr’s submission was that no weight could be attached to what was said by the appellant in the interview in December 2021 as a result of there not being a responsible adult present. I think that overstates the position. The policy guidance itself states that “asylum decision makers must not rely on information obtained from an interview where no responsible adult or legal representative is present unless this information has also been explored and raised with the appellant during the substantive asylum interview in the presence of a responsible adult or legal representative”. That would suggest that reliance might be placed upon answers given if they are explored in the later asylum interview. In AA (Afghanistan) v SSHD [2007] EWCA Civ 12 the Court of Appeal had to consider the issue of the extent to which an adjudicator could in arriving at a view on credibility take into account answers provided in an interview – where the interview took place with a child and without a responsible adult present contrary to the respondents stated policy at the time. LJ Carnwrath commented at [51] “I accept of course that the policy governing interviews of minors is of great importance. If the tribunal becomes aware that an interview has been carried out in breach of those guidelines, that fact should clearly be taken into account in considering its weight, possibly by excluding it altogether. That may not always be the right response, since in some circumstances the appellant may wish himself to rely on it, for example to show consistency. Failure by the tribunal to take account of the breach may be an error of law justifying the setting aside of the decision.” This would suggest that the answers or omissions may still be relevant – although consideration should be given to excluding it entirely.
25. I note that the FtT did give some consideration to the age of the appellant at his first screening interview [see paragraph 24.12 of the determination – “Even allowing for the fact the appellant was a child at the time of his screening interview, he was almost 17 and it is not credible that he would not have mentioned any of these events, however briefly, had they occurred. This is a significant omission which undermines the credibility of his claim to have been arrested and detained by the authorities in 2016 and 2020”]. I also take into account the guidance in Ullah that the Tribunal are not required to set out in their determination every step in their reasoning. However, given the clear policy position of the respondent it is my view that the failure by the FtT to engage with the issue of whether or not the omission by the appellant could be relied upon given that he was unaccompanied does amount to an error in law. I accept that this does not appear to have been an issue directly raised before the FtT by either the appellant or the respondent (although that is perhaps not surprising where it arises in the context of a credibility assessment). Nonetheless in light of the policy position it is an issue that in my view does require to be explicitly addressed in assessing credibility.
26. As to whether that error is material in AA (Afghanistan) referenced above LJ Keane observed “So the overall position is that the inconsistencies found by the adjudicator derived partly but not entirely from answers given in interview. The problem to which that gives rise is that it is impossible to know what finding the adjudicator would have made on credibility, had he either ignored or treated with great caution the interview material. Clearly that material had been relied on by the Secretary of State's representative and it must have had some influence on the adjudicator's assessment of credibility.” In my opinion the position is similar here. It is impossible to know what the ultimate view on credibility would have been had the FtT taken into consideration when assessing credibility the respondent’s policy on the requirement for a responsible adult to be in attendance at the screening interview. It may or may not have made a difference to the overall credibility assessment. Whilst there were a number of other material points relied upon by the FtT on the issue of credibility it is clear that the FtT did treat the screening interview “omissions” as material factors in their decision. Accordingly, I find that there has been a material error of law in the determination of the FtT in this regard.
The Age Assessment
27. Ms Doerr submitted that the FtT failed to take relevant material from the Age Assessment report into account when determining the credibility issue. Specifically, that there were comments in that report from the social worker who completed the form to the effect that the appellant struggled with his memory and that on the issue of his age the social worker had found the appellant to be credible.
28. Ms Mckenzie‘s position was that the document was in the respondents bundle and was before the FtT. If the appellant had wanted to refer to it then that should have been done at the hearing. It was not an issue that was raised at the hearing before the FtT and per SSHD-v- Lata [2023] UKUT 00163 (IAC) paragraph 31 of that decision it was not something which the FtT can be criticised for not expressly making reference to.
29. I accept that it is not incumbent upon the FtT to address every piece of evidence placed before it in the bundle, particularly if it is not something that the appellant’s counsel specifically took the FtT to. On the specific issue of the Age Assessment I do not think that in any event the views of a third party as to credibility should necessarily be a material point for the FtT who have to assess credibility based upon the evidence given by the appellant and the objective evidence that it has available before it. I do not accordingly see how a failure to expressly reference the Age Assessment is an error of law.
Country Guidance
30. With reference to MM (DRC-plausibility) Democratic Republic of Congo [2005] UKIAT 00019 Ms Doerr submitted that in assessing credibility it was important to consider the background evidence and the FtT failed here to consider the plausibility of the appellant’s account in light of the country evidence.
31. The FtT determination does reference both the CPIN “Ethiopia:Oromos, the Oromo Liberation Front and the Oromo Liberation Army” Version 1, March 2022 at paragraph 14 and both AAR (OLF-MB confirmed) Ethipia CG [2022] UKUT 00001 (IAC) [paragraph 15] and MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 30 at paragraph 28. Whilst it is correct that the FtT do not expressly set out that they considered credibility in light of what was contained in the country evidence I do not consider that there is an error in law in failing to expressly state that. That the country evidence was before the FtT and was considered is, in my view, clear from the determination. In any event I do not think that the country evidence played a material part in the credibility assessment one way or another. The fact that there were demonstrations in 2016 and 2020 was not in dispute. The contested issues of credibility arose in relation to the involvement of the appellant and his father in those events. I appreciate that Ms Doerr raised this as an aspect of the overall credibility assessment, however I do not consider it to be a material point.
Sur place activities
32. In relation to the sur place activities in the UK whilst it is correct, as Ms Doerr submits, that the FtT would appear on the face of the determination to only have considered this as a stand alone issue and not to have expressly taken it into account in determining credibility overall I would hesitate, as with the country evidence, to draw the conclusion that this amounts or contributes to a material error of law. There may have been many reasons as to why the appellant participated in the sur place activities. The FtT had the benefit of hearing the evidence first hand and as set out in Ulla they are not obliged to set out in writing every step in their reasoning.
Conclusion
33. On the issue of the interview process we do not accept Ms Doerr’s submission that it was wrong to place any weight on the screening interview. We consider that the position is not as definitive as that having regard to the comments from Lord Carnwath in AA (Afghanistan). However, we do accept that there was a requirement for the FtT to engage with the policy issue and assess the evidence in light of the fact the appellant was unaccompanied. It was a factor that had to be taken into account in the credibility assessment. We accept that it was difficult for the FtT to consider the policy point when it appears it was not expressly put to them – but in my view it still results in an error of law not to expressly have taken the policy position into account.
34. The issue in this appeal turned on a credibility assessment and as there was a material error of law in arriving at that credibility assessment, I consider that the most appropriate way forward is for the case to be reheard anew before a different judge of the FtT.

Notice of Decision
The decision of the FtT involved the making of a material error on a point of law and that decision is hereby set aside. The appeal is remitted to the FtT to be reheard anew, by a different judge, with no findings preserved.

S NEILSON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23.05.25