Upper Tribunal (Immigration and asylum chamber), 2016-08-31, AA/11161/2015
| Jurisdiction | UK Non-devolved |
| Date | 31 August 2016 |
| Published date | 08 March 2018 |
| Hearing Date | 19 August 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/11161/2015 |
Appeal Number: AA111612015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11161/2015
THE IMMIGRATION ACTS
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Heard at Glasgow |
Decision Promulgated |
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On 19 August 2016 |
On 31 August 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
[E Y]
(Anonymity Direction Not Made)
Respondent
Representation:
For the Appellant: Mr M Matthews, Senior Home Office Presenting Officer
For the Respondent: Mr N Barnes, solicitor, of Neil Barnes, Solicitors
DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Secretary of State for the Home Department brings this appeal but in order to avoid confusion the parties are referred to as they were in the First-tier Tribunal. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Kempton, promulgated on25 May 2016, which allowed the Appellant’s appeal.
Background
3. The Appellant was born on [ ] 1990 and is a national of Eritrea. The Appellant arrived in the UK on 17 March 2015 and claimed asylum the next day. On 6 August 2015 the Secretary of State refused the Appellant’s application.
The Judge’s Decision
4. The appellant appealed to the First-tier Tribunal. Judge Kempton (“the Judge”) allowed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 22 June 2016 Judge Andrew gave permission to appeal stating inter alia
“It is arguable that in coming to his conclusion the Judge did not apply the guidance in MA(Ethiopia) v SSHD [2009] EWCA Civ 289. Further, the Judge did not consider and make any findings in relation to the time spent by the Appellant in Sudan which may have affected the Judge’s decision in relation to overall credibility had this been done.”
The Hearing
5. (a) For the Respondent, Mr Matthews moved the grounds of appeal. He told me that the Judge made a material misdirection in law, and failed to follow the guidance given in MA (Ethiopia) v SSHD [2009] EWCA Civ 289 when considering evidence of the appellant’s visit to the Ethiopian embassy in London. He referred me to documents 13 and 14 of the appellant’s bundle, which appears to be an untranslated application for an Ethiopian passport. He took me to [31] of the decision, where the Judge summarises the appellant’s evidence, and told me that the Judge had placed undue weight on evidence which was bordering on inadmissible because the passport application is written in a language other than English. He reminded me of rule 7(5) of the Tribunal Procedure (FTIAC) Rules 2014.
(b) Mr Matthews told me that on the evidence placed before the Judge she could not have concluded that the appellant has taken all reasonable steps to make a bona fide application for the right to return to Ethiopia.
(c) Mr Matthews turned to the second ground of appeal and told me that the Judge failed to make findings on a material matter which is in dispute. He told me that it is an important part of the appellant’s claim that he lived in Sudan for 12 years. That part of the appellant’s claim was challenged by the respondent, yet nowhere in the determination does the Judge deal with that area of dispute.
(d) Mr Matthews told me that the decision is tainted by a material error of law. He urged me to set the decision aside.
6. (a) For the appellant, Mr Barnes told me that the decision is a well-reasoned and carefully considered decision which does not contain errors, material or otherwise. He told me that the Judge carefully summarises the evidence at [31] before reaching evidence based conclusions at [35] and [36]. He told me that at [36] the Judge takes account of the language spoken by the appellant (Amharic) and accepts the additional witness as a credible and reliable witness, so that the Judge gives three reasons for accepting the appellant’s evidence. He argued that the Judge adequately followed the guidance in MA, and that, in any event, the Judge did not view the appellant’s visit to the Ethiopian embassy as the factor which is solely determinative of this case. Instead, the Judge considered all of the evidence in the round, and found that for three reasons the appellant was a credible and reliable witness
(b) Mr Barnes told me that the Judge considered each strand of evidence and clearly came to the conclusion that the appellant’s account of life in Sudan was not determinative of this case. What was determinative was the appellant’s nationality and religion, and it was on those determinative matters that the Judge focussed. He asked me to dismiss the appeal and allow the Judge’s decision to stand.
Analysis
7. This case turned on the question of the appellant’s nationality. The appellant claims to be Eritrean. The respondent believes that the appellant is Ethiopian. The respondent emphasises the guidance given in MA (Ethiopia) v SSHD (2009) EWCA Civ 289, in particular the requirement to take all reasonably practical steps to seek the necessary documents to enable return.
8. In MA (Ethiopia) v SSHD (2009) EWCA Civ 289, the Court of Appeal said that to make attempts at de jure and de facto nationality was likely to obscure the questions in issue. Where, as here, the essential issue before the Tribunal was whether someone would or would not be returned, the Tribunal should in the normal course require the claimant to act bona fides and take all reasonably practical steps to seek to obtain the requisite documents to enable return. There was no risk of ill treatment if an application for a passport was made from within the UK. The evidence in that case indicated that the appellant, of dual Ethiopian/Eritrean nationality had gone to the Embassy and asked for a passport but told Ethiopian embassy staff that she was Eritrean. That could not constitute a bona fides attempt by that appellant to obtain an Ethiopian passport and her appeal was dismissed.
9. In ST (Ethnic Eritrean- nationality- return) Ethiopia CG [2011]UKUT 00252 (IAC) the Tribunal held that (i) There is nothing in MS (Palestinian Territories) [2010] UKSC 25 that overrules the judgments in MA (Ethiopia) [2009] EWCA Civ 289. Where a claim to recognition as a refugee depends on whether a person is being arbitrarily denied the right of return to a country as one of its nationals, that issue must be decided on an appeal under section 82 the Nationality, Immigration and Asylum Act 2002 (paragraphs 69 to 72); (ii) Although the question of whether a person is a national of a particular state is a matter of law for that state, the question whether a national of a particular state has been lawfully or unlawfully deprived of the nationality of that state is a legitimate issue for a court or tribunal to determine, in the course of deciding a person’s entitlement to international protection (paragraph 74); (iii) Whether arbitrary deprivation of nationality amounts to persecution is a question of fact. The same is true of the denial of the right of return as a national; although in practice it is likely that such a denial will be found to be persecutory (paragraphs 76 and 82 to 89).
10. At [35] the Judge records that the appellant initially said that he would not go to the Ethiopian embassy, but, after accepting advice from his solicitor, travelled to London and applied for an Ethiopian passport. Mr Matthew’s criticisms of the evidential quality of the untranslated application for an Ethiopian passport reproduced in the appellant’s bundle were well made, but from a fair reading of [35] it is the respondent, and not the Judge, who places undue emphasis on that document.
11. At [35] The Judge makes it clear that she accepts the appellant’s account of travelling to the Ethiopian embassy in London, not just because an untranslated passport application form is produced, but because (a) The appellant says that that is what he did; (b) His witness (Mr Hagos) says that that is what the appellant did, and (c) the bus ticket for the journey to London is produced together with photographs of the appellant within the Ethiopian embassy.
12. The first sentence of [36] is, perhaps, a little careless, but a fair reading of the decision as a whole makes it clear that for clearly specified reasons the Judge found the appellant to be a credible and reliable witness. Neither MA nor ST say that nationality is determined exclusively on the quality of a trip to the Ethiopian embassy. What they say is that an appellant entitled to nationality of both Ethiopia and Eritrea should use his/her best efforts to obtain the necessary travel document to enable return to Ethiopia. This appellant’s position is that he is not a national of Ethiopia, and (as if to prove a negative)...
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