EB (Ethiopia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Longmore,Lord Justice Jacob |
| Judgment Date | 31 July 2007 |
| Neutral Citation | [2007] EWCA Civ 809 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2006/2355 |
| Date | 31 July 2007 |
[2007] EWCA Civ 809
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Asylum and Immigration Tribunal
HX133122002
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Longmore and
Lord Justice Jacob
Case No: C5/2006/2355
Nicholas Blake QC, Eric Fripp and Sandra Akinbolu (instructed by Messrs White Ryland) for the Appellant
Tim Eicke and Neil Sheldon (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 21 and 22 May 2007
Judgement
This is an appeal against a decision of the Asylum and Immigration Tribunal (“the Tribunal”) promulgated on 9 October 2006 whereby the Tribunal dismissed EB's appeal against the refusal of the Secretary of State for the Home Department (“the Secretary of State”) to grant her asylum and to allow her to remain in the United Kingdom on human rights grounds. The appellant is, at present, within the United Kingdom on temporary admission. The appeal is claimed to give rise to a general issue about the treatment of persons with Eritrean ancestral connections who have left the state of Ethiopia.
EB is 35 years old and was a national of Ethiopia. She, and her parents, were born and lived in Ethiopia, her mother being Ethiopian. Her father was of Eritrean background, his father having been born in Eritrea. She acquired Ethiopian nationality on her birth.
At the time of EB's birth, Eritrea was effectively a province of Ethiopia, having been annexed in 1962. In 1993, Eritrea separated from Ethiopia following a referendum which approved Eritrean independence. EB's father was a Captain in the Ethiopian army and a supporter of the inclusion of Eritrea within Ethiopia. The family remained in Ethiopia after 1993. On the evidence both she and her father were loyal Ethiopians.
In 1998, war broke out between Ethiopia and Eritrea. Ethiopia initiated a large scale programme of forced deportation of Eritrean nationals resident in Ethiopia and those who retained Ethiopian nationality but had an Eritrean family background. However, the situation improved in 2000 when peace agreements were reached between the two states. EB left Ethiopia in December 2001, using a forged passport, and with the help of an agent in circumstances to be considered. She sought asylum in the United Kingdom soon after arrival.
A five member Eritrean Ethiopian Claims Commission was set up in 2001 to consider, amongst other things, claims by Eritrea for loss, damage and injury suffered by Eritrean nationals and other persons resulting from alleged infraction of international laws in connection with the 1998–2000 armed conflict between the two parties. The Commission issued a partial award at The Hague on 17 December 2004. Amongst the findings on liability, it was held that Ethiopia was liable to Eritrea for a violation of international laws in “erroneously depriving at least some Ethiopians who were not dual nationals of their Ethiopian nationality.” At paragraph 75 the Commission had stated:
“Considering that right to such benefits as land ownership and business licenses, as well as passports and other travel documents, the Commission finds that this wide-scale deprivation of Ethiopian nationality of persons remaining in Ethiopia was under the circumstances arbitrary and contrary to international law”
The Commission declined jurisdiction to consider “claims regarding the alleged forcible expulsion from Ethiopia of 722 persons in July 2001”.
The appellant made a written statement in December 2001 and two further witness statements which were before the Tribunal. She gave evidence and also relied on an expert report from Professor L Cliffe, dated 30 August 2006, and other written material. A substantial amount of material about the situation in Ethiopia over the years was placed before the Tribunal.
EB was cross-examined at length. She claimed to be a Jehovah's Witness, having been baptised in Ethiopia three years before she came to the United Kingdom. There had been earlier proceedings to which it is not necessary to refer for present purposes.
The Tribunal set out and analysed the evidence in considerable detail. EB claimed that her father had been taken from the house and deported in May 2000 and that, in February 2001, armed police raided her house, accused her of being an Eritrean spy and took her ID cards and school papers and the identity card and papers of her brother. In April 2001, the garage business, which she had continued to run after her father's departure, was raided, the licence revoked and all the goods confiscated. Further documents, including EB's school documents, were taken in August 2001 and she was imprisoned, interrogated and tortured. She was released on bail on 9 November 2001 because her mother was gravely ill. Her mother died soon afterwards and her paternal uncle arranged for her departure from Ethiopia.
The appellant said that she had twice visited the Ethiopian Embassy in the United Kingdom. Ms W.A. Woldearegay gave evidence that she had accompanied the appellant on one of those occasions. The appellant was refused a passport. She did not have the documents necessary to obtain a passport. These had been taken from her in Ethiopia.
The Tribunal found that there were serious inconsistencies in the appellant's account of her claimed detention and threatened deportation which undermined her credibility. Reference was made to alleged implausibilities and discrepancies. They found that she was vague and evasive on occasions when giving evidence.
The Tribunal accepted that the appellant's father had been detained and deported but held that it was much more likely that the events, including the closure of the business, had taken place in 1999 or early 2000. They added, at paragraph 52:
“We have also accepted her evidence that her father was deported. If that were the case it is also likely that the children's identity documents, birth certificates and the like were removed from the home at the time of her father's deportation or shortly thereafter. Again, the objective material clearly shows that this was the way that the Ethiopians were operating and that it was specifically directed to people like the appellant so that she would have difficulty in the future proving her Ethiopian nationality”.
The Tribunal accepted the appellant's evidence of her visit to the Ethiopian Embassy. At paragraph 55, they stated:
“We will accept that the appellant is most likely to have lost her Ethiopian nationality … On this basis all the expert and objective evidence seems to indicate that the appellant has lost her Ethiopian nationality”.
As to Eritrea, the Tribunal stated, at paragraph 57:
“We therefore find that the evidence shows it is reasonably likely the appellant could not prove Eritrean nationality. She is stateless”.
The Tribunal also considered the appellant's treatment in Ethiopia. At paragraph 50, the Tribunal found:
“For all the reasons and looking at the evidence in the round we do not accept that the appellant was ever detained or targeted for deportation by the Ethiopian authorities. We reject that evidence as a fabrication.”
The Tribunal concluded:
“58 Having made these findings of fact we must now consider whether they form the base of a claim that the appellant has a present well-founded fear of persecution if returned to Ethiopia. We accept that this is a largely hypothetical exercise as the appellant has lost her Ethiopian nationality and may not be admitted to that country. However jurisprudence shows that the question of actual returnability to a country is not one that should be considered by this Tribunal but merely the likelihood of persecution if she returns.
59 Our findings of fact show that the appellant did not suffer persecution in Ethiopia in the past. On the basis of our findings the appellant and her family continued to live in Ethiopia from the date of her father's deportation in 1999 until the end of 2001. They appear to have survived notwithstanding the closure of the father's business. We do not accept that any of them were arrested or harassed by the authorities. It may well be that the appellant suffered the sort of discrimination and rejection by her neighbours that she claims. However such discrimination does not constitute persecution. Furthermore we do not accept that this is an appellant who was ever at risk of forcible repatriation to Eritrea. We do not accept her account of being targeted for deportation. The objective evidence does not show any wide scale deportations of persons in her circumstances. Therefore we do not find that when she left Ethiopia she was at risk of ill treatment”.
The Tribunal purported to rely on the decision of a differently constituted tribunal in MA (Ethiopia) and another v SSHD; SSHD v RG (Ethiopia-Eritrea-Mixed ethnicity-dual nationality) [2004] UKIAT 00324. They did so, at paragraph 60, to reject the submission that “the mere deprival of her nationality in the context of the Ethiopia/Eritrea situation in itself constitutes persecution”. They stated, at paragraph 60, that loss of nationality on its own is not sufficient: “There must be other treatment which would lead to persecution”.
The Tribunal expressed their general conclusion at paragraph 63:
“In this case we find that the appellant's deprivation of nationality actually arises because of her having left Ethiopia. Although we accept that to be exacerbated by the appellant's inability to provide documents about her nationality because those were taken by the...
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