Upper Tribunal (Immigration and asylum chamber), 2016-12-15, DA/01071/2013

JurisdictionUK Non-devolved
Date15 December 2016
Published date11 February 2021
Hearing Date29 October 2016
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberDA/01071/2013

Appeal Number: DA/01071/2013

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/01071/2013


Heard at Field House

Decision Promulgated

On 29 October 2016

on 15 December 2016





(Anonymity direction made)






For the Appellant: Ms A Benfield instructed by Roelens Solicitors

For the Respondent: Miss Isherwood Home Officer Presenting Officer


  1. This is an appeal against the refusal by the Secretary of State to revoke a deportation order made against HA.

  1. The appellant is citizen of Eritrea. It is agreed that the issues upon which the Upper Tribunal are required to make findings of fact are as follows:

a. When the applicant left Eritrea and in what circumstances

b. Is he or is he not likely to be considered as someone who has exited illegally

c. If the answer is in the affirmative, whether he faces a risk of persecution on the grounds that he existed Eritrea illegally and has evaded the draft into military service.

d. In the event of his return whether he would be conscripted into national service and whether there would be a consequential breach of Articles 3 and 4 ECHR.

e. Whether as a forced returnee he faces detention and therefore a breach of Article 3 ECHR.

f. The appellant's credibility.

  1. The last issue is, in many respects, the foundation on which the remaining issues are to be considered and so I shall consider this element first.

  1. It is my primary finding that the appellant is not a credible witness and is a person who has deliberately lied in an attempt to misled this and other Tribunals into accepting the case he chooses to advance at that particular time.

  1. The appellants appeal against the making of the deportation order was heard on the 2 November 2010 by First-tier Tribunal Judge Rintoul and Mr A P Richardson JP. The panel dismissed the appeal and in doing so made the following findings in relation to the credibility of the claim:

46. In assessing the Appellant's credibility, we take into account Section 8 of the 2004 Act, bearing in mind that it is neither determinative nor a starting point. As was noted in the refusal letter, there is some inconsistency in the Appellant's evidence as to his date of birth. Initially, he has said that he was born on 16 July 1984 but it appears in a witness statement prepared with the assistance of Refugee and Migrant Justice that he was born in 1987. This date was also given in his interview The Appellant now says (witness statement paragraph 5) that it is 16 July 1984 and that the confusion arose when his sister had come to visit him in prison and had told him, on the basis of her calculation, that his date of birth should be 1987 and that she is older than him and has left the family earlier when he was young. The Appellant's sister's evidence is inconsistent with that of her brother. She has maintained throughout that she was born on 15 January 1981 and that she left Eritrea in 1996. That would have made her 14 or 15 at the time yet she says that firstly in her oral evidence that the Appellant was some two or three years of age when she left then later that he was five or six and that she was not sure and that she was young at he time when the discrepancies were put to her. There is then the evidence of the two step sisters said to have been adopted by the Appellants mother. He makes no mention of them.

47. On his evidence, the Appellant was 12 years of age in 1996, the year it is said that his sister left the country. There would therefore appear to be only a matter of three years of age between them and whilst they may both have been relatively young at the time, it does not follow that this is an explanation as to how the appellants sister could not answer constantly regarding her bothers age at the time she left.

48. The Appellant's sisters evidence is that the Appellant did in 1996 travel to Ethiopia with his mother. He says he has no recollection of travelling there then on his own account, he would have been 12. This is, we find , a significant discrepancy and we do not accept that he would not recall being taken being taken to Ethiopia by his mother at the age of 12, had that in fact happened.

49. There are other discrepancies between the evidence of the Appellant and his sister. Mrs Seal said also that her mother had become a Jehovah's witness but that she had ceased to be so although she did not say when. This is contrary to the Appellant's evidence that he was not aware of any member of his family ever changing religion which is surprising given the relatively small gap in their ages and it appears also (and Mrs Seal has not denied the contents of the letters written on her behalf by the RLC that her father was imprisoned and subsequently killed) and again there is no mention of this. Even allowing for the fact that she was a minor at the time , there are a substantial number of differences in what she appears to have set out as her asylum claim and what is now put forward and what is put forward by the Applicant.

50.Further discrepancies arise between the evidence of the Appellants and his sister. He says that she was in contact with him wen he was in Italy. She says that he was not. We consider that these discrepancies have not been adequately explained.

51. We consider the Appellant's account of the raid on his home makes little sense in the context of his evidence that this was the sole meeting arranged at his house and that it was done without the knowledge of his parents. It is implicit in the Appellant's evidence that arrangements were put in place for the meeting which, if he was to be sure that his mother was not there, is predicted in his knowing that she would be out at a specified time and, for some period otherwise he would not have been able to fix a date and time for the meeting to take place without his mother being there. We find it improbable that he would not have known where she was going or have some indication of when she was going or how long she was going out for were, if he knew, as he must, that she was away for a specified time.

52.We note that evidence that is common for people in Eritrea to stay in school for longer than what might otherwise be necessary partly because they start education late, partly because they have to repeat years and partly also because of the incentive to remain in school to avoid military service.

53 We consider, given the unchallenged evidence of Mr. Seal in the correspondence passing between him, UNHCR and the British Embassy in Addis Ababa, that the Appellant was in Ethiopia in 2007. His evidence of other matters is dependant to a considerable extent on what he has been told by the Appellant and his sister. He was dependant on their evidence for knowing when the Appellant left Eritrea and went to Ethiopia.

54.We have no reason to doubt Mr Haile Kidaneariam's evidence that the Appellant has attended Pentecostal services, nor that the Appellants knowledge of the Pentecostal community in Ethiopia/Eritrea was detailed and that he has been involved with the church or some time, attending prayer meetings and offering other assistance to the church.

55.We have considered the documents said to show that a fine was paid in respect of the Appellant left Eritrea unlawfully, but in line with the principles set out in Tanvir Ahmed we have considered these in the round, and we note that they were issued some years after it was said that the Appellant left Eritrea, and for the date on which he did so, we are dependant upon his evidence and that of his sister.

56.Taking all these factors into account and viewing the evidence as a whole, we find that the credibility of the Appellant and his sister is wholly undermined by the serious, unexplained discrepancies in their testimony which goes to the core of the Appellant's claim and, for that matter, his sister's initial claim for asylum. We consider that their accounts of their family and when the Appellant went to Ethiopia are so different, that considerable doubt is cast on both of their accounts, but we bear in ind that the Respondent has conceded that they are related.

57.We find that the evidence of the Appellant and his sister is undermined to such an extent that we do not accept that the Appellant left Eritrea unlawfully. We are dependant upon their evidence as to when he did so, and at what age. Other than the evidence placing the Appellant in Ethiopia in 2007, we are dependant on either evidence to establish the timeline of the Appellants claim. We bear in mind also that it is for the Appellant to show that he left Eritrea illegally; the fact that as noted above, it is difficult to do so does not remove the need to show that he did so. See GM, YT and MY (Eritrea) -v- SSHD [2008] EWCA Civ 833. In this case, we have found both the Appellant and his sister's evidence to be wholly undermined. We do not accept that the Appellant's knowledge of the Pentecostal Church in Eritrea is knowledge of his presence there. As Mr Kidanemariam said, the churches in Ethiopia are, as one would expect, closely involved with churches in Eritrea; it is inevitable that...

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