MA v Secretary of State for the Home Department
| Jurisdiction | Scotland |
| Judgment Date | 12 March 2019 |
| Neutral Citation | [2019] CSIH 13 |
| Date | 12 March 2019 |
| Docket Number | No 26 |
| Court | Court of Session (Inner House) |
[2019] CSIH 13
Extra Division
Upper Tribunal (Immigration and Asylum Chamber)
Danian v Secretary of State for the Home Department [2000] Imm AR 96; [1999] INLR 533
MB (OLF and MTA – Risk) Ethiopia CG [2007] UKAIT 00030
YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360
Home Office, Country Policy and Information Note — Ethiopia: Opposition to the government (Home Office, London, October 2017), paras 3.1.1, 3.1.3, 3.1.4, 8.1.11, 8.1.13 (Online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/650909/ethiopia_opp_to_the_government.pdf (5 April 2019))
Immigration — Asylum — Evidence — Assessment of risk arising from opportunistic political activities sur place
MA appealed against a decision of the Secretary of State for the Home Department to refuse her asylum claim. In July 2017, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed her appeal. In January 2018, the Upper Tribunal (Immigration and Asylum Chamber) dismissed an appeal against the decision of the FTT. The appellant appealed to the Inner House of the Court of Session.
An asylum-seeker, a national of the Federal Democratic Republic of Ethiopia, claimed to have a well-founded fear of persecution arising from her and her husband's political activities in Ethiopia relating to a banned opposition party and further activities carried out by her in the United Kingdom. Her claim was refused and her appeals against that refusal were unsuccessful. The First-tier Tribunal (‘FTT’) disbelieved the appellant's claims, finding that she was not a genuine oppositionist, that her activities in the United Kingdom were self-serving and that she did not have a public profile such as might attract the adverse attention of the Ethiopian authorities. The asylum-seeker was granted permission to appeal.
Before the Upper Tribunal (‘UT’), the asylum-seeker relied on the observations of Sedley LJ in YB (Eritrea) v Secretary of State for the Home Department to the effect that where a foreign government engages in suppression of political opponents, there was no need for evidence to establish the probability that the authorities record their nationals who demonstrate in public against the regime, that they will have informers among expatriate oppositionist organisations, and that they will monitor the internet for information about oppositionist groups, with the real question being what follows for an individual asylum-seeker. The UT refused the appeal, holding that: “In the unlikely event that any information were to reach the authorities, it would be that the appellant is a hanger on with no real commitment to the oppositionist cause.” The asylum-seeker was granted permission to appeal to the Court of Session.
Held that: (1) given that the asylum-seeker was not a genuine oppositionist, either in Ethiopia or in the United Kingdom, if she did come to the attention of the Ethiopian authorities, she would be of no interest to them (para 15); (2) the FTT and UT had avoided the mistake of treating opportunistic activity sur place as an automatic bar to asylum, but a finding that a claimant was not genuine remained relevant to the scrutiny of their asylum claim (para 18); (3) there was no identifiable error of law in the decisions of the tribunals (para 19); and appeal refused.
YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 applied.
The cause called before an Extra Division, comprising Lady Paton, Lord Drummond Young and Lord Malcolm, for a hearing on the summar roll, on 9 January 2019.
At advising, on 12 March 2019, the opinion of the Court was delivered by Lord Malcolm—
Opinion of the Court—[1] The appellant is a citizen of the Federal Democratic Republic of Ethiopia who has made a claim for asylum in the United Kingdom. The claim was refused. An appeal was taken under sec 82(1) of the Nationality, Immigration and Asylum Act 2002 (cap 41). In July 2017 that appeal was refused by a judge of the First-tier Tribunal. A further appeal to the Upper Tribunal was refused in January 2018. Subsequently this court granted leave to appeal to the Court of Session.
[2] The background circumstances are as follows. The appellant travelled to Sudan, and from there by air to France. Having hidden in a lorry she then travelled to the United Kingdom. The core of her claim is that in Ethiopia both she and her husband were sympathisers with a banned political opposition party, then called Ginbot 7 (now AGUDM). She states that she was a supporter and that her husband was a full member. She also relies on political activity carried out by her after her arrival in the United Kingdom.
[3] The judge of the First-tier Tribunal did not believe the appellant's claims as to her and her husband's political activities in Ethiopia. Her evidence as to being detained and tortured was rejected. At no stage has any challenge been made to these findings. The appeal to the Upper Tribunal, as now to this court, concentrated on the appellant's conduct since arriving in the United Kingdom. The First-tier Tribunal judge dealt with this aspect of the claim as follows:
‘37. … The appellant claims to be an active participant in Ginbot 7 in the UK. She claims to hold a specific position of power and authority in the Glasgow association and maintains links with higher members of the party in the United Kingdom. It might reasonably be expected that enquiries could have been made and vouching produced in respect of her husband's claimed membership and circumstances. The appellant's failure to provide any such material undermines her claims.
38. The appellant's claim to be the party secretary of...
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