DA
| Jurisdiction | England & Wales |
| Judge | Ms D K Gill,The Rt Hon. Countess of Mar |
| Judgment Date | 16 March 2004 |
| Neutral Citation | [2004] UKIAT 46 |
| Date | 16 March 2004 |
| Court | Immigration Appeals Tribunal |
[2004] UKIAT 46
IN THE IMMIGRATION APPEAL TRIBUNAL
Ms D K Gill (CHAIRMAN)
The Rt Hon. Countess of Mar
For the Appellant: Mr. W. McCarthy, of Counsel, instructed by Ziadies Solicitors.
For the Respondent: Mrs. A. Holmes, Senior Home Office Presenting Officer.
Ethiopia — recent tension in border (CG)
DA (Ethnicity — Eritrean — Country Conditions) Ethiopia CG
The Appellant (a national of Ethiopia) has appealed, with leave, against the determination of Mr. A M Baker, an Adjudicator, who (following a hearing on 11th June 2003 at Bradford) dismissed her appeal on asylum and human rights grounds against the Respondent's decision of 22nd October 2001 to give directions for her removal as an illegal entrant.
The Presenting Officer who appeared before the Adjudicator withdrew the certificates with regard to the Appellant's asylum and human rights claims.
We are reporting this decision because we consider the recent tension in the border between Ethiopia and Eritrea and whether, in the light of this increased tension, there is a real risk of persons of Eritrean ethnicity being interned and deported to Eritrea (see paragraphs 30 to 33 below).
Basis of claim: The Appellant experienced problems in Ethiopia because of her father's ethnicity. In June 1999, she was arrested in Addis Ababa by the Ethiopian security forces, pursuant to the government's policy of deporting all ethnic Eritreans back to Eritrea. Her father and brother had been arrested 3 weeks earlier. She was detained for almost 2 years, during which time she was forced to work in slave-like conditions within military wash-houses and kitchens. However, after being moved to a new location at Gondar, she escaped with 2 others and took refuge in the nearby house of a family friend who then contacted her mother to provide funding for an agent to be engaged to enable her (the Appellant) to leave Ethiopia. In July 2001, the Appellant left Ethiopia via Sudan en route to the United Kingdom. She has never been a member of any political organisation. Before the Adjudicator, she did not pursue her original claim of being currently stateless (paragraph 13 of the Determination).
The Adjudicator's Determination: The Adjudicator considered that there were several aspects of the Appellant's account which were contradictory or incredible. He noted as follows:
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(a) he did not consider it credible that the Appellant was never threatened with deportation nor that any steps were taken leading to deportation, notwithstanding the fact that the cessation agreement ending deportations took place halfway through her allegedly lengthy period of detention.
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(b) he considered that the Appellant's claim as to the reason for her final movement to the camp at Gondar (i.e. that it was because of a government decree forbidding the release of young persons who would be liable to join the Eritrean militia against the interests of Ethiopia) “rather odd” because the Appellant had “no past military/political affiliation/involvement/training” and since her group which had been so transported were all females;
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(c) he also considered it “equally odd” that, within a few hours only of her arrival at Gondar, and despite her having already formed the view that Major Mohammed in charge of the camp treated the women very well, she had been able to assess the security arrangements so as to permit her escape due to the guard's dinner break on the very first evening of her being there.
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(d) he found it wholly incredible that, despite the fact that her only visit in the past to this area had been some 20 years previously as a mere 9 year old girl and the fact that she was in the middle of a forest at night and did not know his address, she was able to find the family friend of her mother and seek refuge with him along with her co-escapees.
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(e) the Adjudicator noted that, although the work required of the Appellant was arduous, she was never subjected to mistreatment or violence, save for once having her thumb trapped in a door when her cleaning of a uniform was deemed not to be up to standard. He did not consider that this was consistent with a period of 2 years' detention without charge or deportation in the context of the simultaneous political developments in the region.
Accordingly, the Adjudicator found that:
….. if [the Appellant] was indeed initially detained at all, it was certainly not for the length of time, or in the manner claimed and that she most certainly did not eventually escape in the manner described.
The Adjudicator was not persuaded that there was a real risk of the Appellant's detention in Ethiopia in the future. He then stated: “As such, allied to the lack of credibility in the Appellant”, the appeal must fail.
The issues before us are:
Issue 1: Whether the Adjudicator had made adequate findings of fact.
Issue 2: Whether the Adjudicator's assessment of the risk on return was safe. In the grounds of application, it is that the Adjudicator had failed to consider the risk on account of the Appellant's Eritrean ethnicity.
With regard to Issue 2, the grounds of application refer to various documents. Since Mr. McCarthy relied on the grounds of application, it is appropriate for us to refer to the documents mentioned in the grounds of application. They are:
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(a) the UNCHR's letter of December 2002, which refers to “ instances where … Ethiopians with Eritrean links have faced serious risks from the Ethiopian authorities”. Examples of such risks include arbitrary deprivation of their Ethiopian nationality, summary expulsion to Eritrea and internment as enemy nationals. UNHCR's general understanding is that, although the situation has improved, the threat of deportation remains.
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(b) the Human Rights Watch Report for 2003 (page 28 of the Appellant's bundle) which states: “ As of October 2002, the Ethiopian Government continued to hold about 1,300 Eritrean POWs despite its pledge to release them…” At the hearing, the Adjudicator had indicated that the term “Prisoner of War” (POW) would not cover the Appellant even if her story was believed. It is asserted in the grounds of application that this is wrong by definition, because the Appellant was a prisoner for reasons only of her ethnicity combined by her place of residence during a time of war and by sole reason of the nature of that war.
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(c) the UNHCR's letter dated 4th June 2001 (page 10 of the Appellant's bundle, final sub-paragraph of paragraph 3), which states that “ the practice of deportation from both countries persists despite the signing by both States of the Cessation of Hostilities Agreement of 18th June 2000, and the Comprehensive Peace Agreement of 12th December 2000”.
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(d) a January 2003 report (page 19 of the Appellant's bundle, final paragraph), which states that: “ despite all the international assistance, since the war's end, they still have no resolution ….. many now have no nationality”;
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(e) the Human Rights World Watch Report 2002 (page 35 of the Appellant's bundle, final paragraph), which states that, even post cease-fire, Eritreans were forcibly expelled from Ethiopia.
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(f) the Human Rights Watch Report for 2003 (page 44 of the Appellant's bundle, penultimate paragraph) which states that the issue of nationality of those expelled during the war has been “largely overlooked”. The same report also refers to arbitrary deprivation of nationality in the case of Ethiopian citizens of Eritrean origin (page 94 of the Appellant's bundle).
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(g) the USSD Report for 2003 (page 126 of the Appellant's bundle, penultimate paragraph) which states: “ The law requires citizens and residents to obtain an exit visa before departing the country. Eritreans and Ethiopians of Eritrean origin were able to obtain exit visas but often were not permitted to return to the country”. The same report also states (page 129 of the Appellant's bundle, penultimate paragraph) that “ Ethiopians of Eritrean origin were not permitted to vote”.
Accordingly, the grounds of application assert that the Adjudicator was wrong to state that there was no sufficient evidence of a recent nature showing a future risk to the Appellant. In any event, it is asserted in the grounds that the real question was returnability on the hearing at, and not at some notional future date.
The grounds of application assert that the risks to the Appellant upon return would be:
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(i) internment or detention by reasons of her ethnicity;
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(ii) not being permitted to enter Ethiopia and Eritrea due to her lack of nationality and/or the stance of the authorities;
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(iii) lack of a right to vote.
At the commencement of the hearing before us, we asked Mr. McCarthy to address us on the focus of his submissions – namely, whether he was asserting that the Adjudicator had made inadequate findings of fact or had erred in his assessment of credibility or whether he was saying that the Adjudicator had erred in his assessment of the risk on return. Mr. McCarthy informed us that this was essentially a matter for the Tribunal. However, if the Appellant's accounts of her historical experiences n Ethiopia were taken at their highest, then the Appellant fears a real risk of persecution on return to Ethiopia on account of:
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(a) her Eritrean ethnicity;
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(b) the fact that the peace process seems to have disintegrated;
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(c) that, accordingly, she is at risk of being interned or of being deported from Ethiopia to Eritrea.
In response to our enquiry as to whether the Appellant was asserting that the Ethiopian authorities would not regard her as an Ethiopian national, Mr. McCarthy submitted that, following the Tribunal's Determination in [2003] UKIAT 00016L (Ethiopia), it is a moot point whether the Appellant is stateless, because, if she...
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