Yb (Eritrea) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Wilson,Lord Justice Tuckey |
| Judgment Date | 15 April 2008 |
| Neutral Citation | [2008] EWCA Civ 360 |
| Docket Number | Case No: C5/2007/1732 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 April 2008 |
[2008] EWCA Civ 360
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tuckey
Lord Justice Sedley and
Lord Justice Wilson
Case No: C5/2007/1732
AS/06016/2005
Mr E Fripp (instructed by Messrs White Ryland) for the Appellant
Mr A Payne (instructed by The Treasury Solicitors) for the Respondent
Hearing date: Friday 29 February 2008
The appellant is a 28-year-old Eritrean who came to this country in November 2004 and claimed asylum on arrival. He had entered on his own passport, which contained a lawfully obtained student visa, but for some reason he let it be taken by the agent who had assisted him to leave, via Sudan, without an exit visa. He has consistently explained that, although he had secured a place at Portsmouth University, he had not taken it up because of problems which he had begun experiencing with the Eritrean authorities and which finally impelled him to seek asylum here instead.
The Home Office rejected his application in February 2005, and he appealed to the AIT. By the time his appeal was heard, which was in May 2005, his claim to have a well-founded fear of political persecution in Eritrea stood on two footings: activities which had initially attracted the adverse interest of the authorities, and further activities sur place in this country. Immigration Judge Birt disbelieved his case in almost its entirety, but on a first-stage reconsideration the determination was held to have been shot through with error, and a full reconsideration was ordered. This took place in March 2007 before a two-judge tribunal (IJ Greasley and IJ Ross). Their decision too was adverse, but permission to appeal against it was granted by SIJ Gleeson because of the tribunal's apparent reliance on a decision of the AIT on refugees sur place which had been reversed by this court. The grant of permission to appeal does not make clear, as it should have done, whether it was intended to include a further ground relating to the tribunal's evaluation of the evidence. In fairness to the appellant we have considered both grounds.
The essence of the appellant's case was that, while employed with an Italian NGO, he had been working with a clandestine cell of the oppositionist Eritrean Democratic Party, monitoring internet traffic and circulating information about Eritrea which being suppressed by the government. When a notice was delivered to his home requiring him to report to the local governmental office, he realised that this presaged interrogation and worse, and fled to Sudan, learning on the way that his younger brother had been arrested as a hostage. Once here, he made contact with the EDP and was elected chairman of its Newcastle branch, containing some 30 members. In that capacity he had taken part in public demonstrations outside the Eritrean embassy, exposing himself to identification and ill-treatment if he were to be returned.
The evidence of EDP membership
The appellant called as a witness Mr Dawit Teweldeberhane, chairman of the UK section of the EDP, who confirmed the appellant's activity here and (indirectly) his membership of the party in Eritrea. Eric Fripp's first ground of appeal is that the tribunal did not engage satisfactorily with this testimony. This is what they wrote:
21. In relation to the facts of this case we accept the evidence of Mr Dawit that the appellant has been very active in the United Kingdom in his work for the party. However there is no evidence that the appellant was active in Eritrea. In relation to the very important letter which was allegedly sent to the appellant informing him that he would have to report to the authorities, we are not satisfied that this letter is genuine, and do not believe the appellant's account of what occurred. In relation to the letter itself, as is apparent from this determination it was produced for the first time in the course of the appellant's evidence, and was not produced for the earlier appeal hearing, it had not been translated. He stated that it had been obtained from his sister who had sent it through a courier system in June 2006. We do not find it credible that the appellant would take the trouble to obtain other documents to support his claim, such as his membership card and letter, but would not request his sister to send the document which is central to his claim for asylum, because it explains why he suddenly decided to leave the country. In relation to the narrative that he has given about these events, we do not think that it is credible that an authoritarian regime which on the objective evidence has a record of arbitrarily arresting its citizens would in effect give the appellant notice that he was about to be detained in relation to his opposition activities by summonsing him to an interview, which he claims would have been understood by anybody as effectively a declaration that he was going to be questioned and detained. If an authoritarian regime wished to detain him, in our view he would simply have been arrested, and not in effect given a warning that he was about to be arrested. We find that the appellant's account of the casual way in which he was summoned to attend is not consistent with the general objective material as to the authoritarian nature of the Eritrean government. We also consider that it is noteworthy that at the very time when he fled the country he had indicated to the University of Portsmouth that he was experiencing difficulties in obtaining an exit visa. We consider that he had decided to leave Eritrea at an earlier stage, but had experienced difficulties in obtaining the relevant travel documents, and so he decided to come as an asylum seeker instead of a student. We place little weight on the documents which were obtained from Sudan relating to his membership of the party in view of his contradictory evidence about whether the letter was faxed or not, and also in view of the fact that the appellant said that the membership card came through Mr Dawit, a fact which Mr Dawit did not agree with. We also take into account that the letter was issued in Sudan as he was passing through, and not in Eritrea. As foreshadowed by Mr Fripp we cannot place much weight on the report submitted, in view of the circumstances in which it came before us.
This passage indicates very plainly why the tribunal were prepared to give only limited weight to Mr Dawit's evidence. It formed at best a modest part of an evidential pattern which, on analysis, was unconvincing. They did not in fact reject any of Mr Dawit's evidence, but they correctly related it to the larger issue they had to decide under the refugee convention: was the appellant outside his country of origin because of a fear of persecution for political reasons? They found not, and on the evidence they were in my judgment entitled to do so.
Refugees sur place
The second ground, concerning refugees sur place, is in the first instance one of law. But it is...
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