YT (Minority church members at risk)
| Jurisdiction | England & Wales |
| Judge | Andrew Jordan,Vice President |
| Judgment Date | 09 August 2004 |
| Neutral Citation | [2004] UKIAT 218 |
| Court | Immigration Appeals Tribunal |
| Date | 09 August 2004 |
[2004] UKIAT 218
IMMIGRATION APPEAL TRIBUNAL
Mr Andrew Jordan (Vice President)
Mr D. Parkes (Acting Vice President)
Mrs L.R. Schmitt
For the Appellant: Mr J. Bild, Immigration Advisory Service
For the Respondent: Mr A Hutton, Home Office Presenting Officer
YT (Minority church members at risk) Eritrea CG
The Appellant is a citizen of Eritrea who appeals against the determination of an Adjudicator, Mr D. G. B. Trotter, promulgated on 16 January 2004, following a hearing at North Shields (King's Court) on 10 December 2003 dismissing the Appellant's appeal against the decision of the Secretary of State to refuse both his asylum and human rights claims.
Although it had earlier been in issue, there was no substantive dispute before the Tribunal that the Appellant was born on 19 May 1985. He is now 19 years old but was aged 17 when he arrived at Heathrow on 9 September 2002 and applied for asylum. The Secretary of State made a decision on 1 November 2002 refusing to granting leave to enter and refusing to grant the Appellant asylum. This gave rise to a right of appeal under section 69 (1) of the Immigration and Asylum Act 1999. The Appellant duly appealed on 12 November 2002.
There is no cross-appeal by way of a Respondent's notice. Accordingly, the facts found by the Adjudicator are the basis of the appeal before us. The Appellant's case is that he was converted from his Orthodox faith into the Pentecostal Church as a result of being introduced to it by his sister. From an early age he was an activist in the Kale Hiwot [“Word of Life”] Church in Eritrea, the KHCE. He attended the church in Asmara. In paragraph 7 of a statement attached to his application, the Appellant stated that, from the outset, he was involved in distributing leaflets and organising meetings, alongside other members of the church. His activities included approaching non-church members in the local community, although this was done discreetly in order to avoid the attention of the authorities. The church was tolerated by the authorities in Asmara, partly because it had international members and partly because it assisted in organising local social projects. In May 2002, however, the KHCE church in Asmara was closed down by the authorities, although the elders encouraged the congregation to maintain local groups and to continue studying and teaching their religion. Although the Appellant was only 17, senior members of the church appointed him as a group leader in the neighbourhood and at his school. He arranged meetings, one of which was interrupted by the authorities. The Appellant was arrested and ill-treated. Over a period of two months in prison, he was interrogated and assaulted on approximately 9 separate occasions by different officers. The Appellant gave an account of an escape from a prison to which he was transferred that the Adjudicator rejected.
The Adjudicator was persuaded that the Appellant has maintained his interest in the Pentecostal Church whilst living in the United Kingdom. He is an active member of the church in Newcastle. The Adjudicator regarded his activities there as consistent with his genuine profession of religious adherence.
In paragraph 25 of the determination, the Adjudicator set out his findings as to the level of involvement of the Appellant in the KHCE in Asmara:
“The Appellant's case is that he was arrested as the leader of a “house church”. Perhaps that is putting the matter a little too high — what he seems to have done was for a brief period (about six weeks) to have held Bible study and prayer meetings in his home attended by perhaps a dozen or so people. For all that, however, and in the light of the evidence of the way in which the authorities treated Pentecostalists in the period after the 21 May 2002 decree I do accept on the lower standard of proof firstly that he was an active member of his congregation, secondly that part of that activity following the closure of the church involved him in the activities that he described, thirdly that these activities caused his arrest and fourthly that after his arrest in his original prison of incarceration he was interrogated and beaten. I do not think that he was beaten every day but I do not find his exaggeration of the amount of the beating in interview of great materiality. I note that in the statement which he handed over at the time of the SEF interview he says he was interrogated nine times and beaten on that number of occasions, I think that is the truth, although no doubt under the pressure of trying to convince the interviewer of the truth of the core of his account he somewhat exaggerated.”
Mr Bild, who appeared on behalf of the Appellant before us, accepted that he was not in a position to contest the Adjudicator's rejection of the Appellant's account of his escape and proceeded on the basis of the Adjudicator's findings on this issue.
The Adjudicator reasoned that the Appellant would not be of any immediate interest to the authorities on his return to Eritrea, although he would be “logged in” (to use the Adjudicator's expression) as a man who had been detained following the crack down on the “Pentes” but who had been released and was of no further interest to the authorities. As the Adjudicator had rejected the Appellant's account of his escape, he would not be treated as an escapee. See paragraph 28 of the determination. In paragraph 29 of the determination, however, the Adjudicator considered the Appellant's future on return to Eritrea:
“Even if the Appellant were of no interest to the authorities on his return to Eritrea I have to consider whether he would become of interest to them as a result of his religious convictions… It is my view almost impossible that a man with this man's religious convictions would be able on return to his native land to refrain from the manifestation of his Christian faith as he understands it or to limit his manifestation of his faith to meetings of less than five people in a house. The overwhelming likelihood is that he would, by virtue of his religious convictions, feel compelled to preach the Gospel whether it be publicly or (more likely) in an underground house church.”
There is no issue that arises in relation to this part of the determination. The following passage, however, was the subject of detailed scrutiny by the Tribunal:
“I have to ask myself whether this would place him at any risk of further ill-treatment. It is in my view highly significant that following the immediate aftermath of the decree of 21 May 2002 there is no compelling objective evidence to support the proposition that Pentecostalists continued to be persecuted in Eritrea. The up-to-date Country Assessment does not give any authoritative corroboration of such a proposition and the objective evidence tendered by the Appellant only goes to the immediate post decree period. Like the Home Office Presenting Officer I find it significant that by 2003 it was possible for the pastor of this man's own church to be in communication with the United Kingdom by telephone and by fax illustrating that even so senior an individual is no longer considered by the authorities to warrant detention or ill treatment. I am aware that since that fax was sent it has been asserted that the pastor has been arrested but this would seem to be an assertion inconsistent with the general relaxation that appears to have happened since the Spring of 2002 and I do not accept that assertion.” [Our italics.]
In paragraph 30 of the determination, we consider that there is a finding by the Adjudicator of considerable importance in the context of this appeal. He stated:
“On this basis it seems to me that the Appellant who would have been at risk had he been returned to Eritrea in accordance with the Removal Directions has been able to obtain some security from that risk by effluxion of time and a relaxation of the situation in Eritrea.” [Our italics.]
It is apparent from the passages that we have set out above that the Adjudicator found the Appellant to be an activist in the KHCE and that his religious convictions were sufficiently strong to compel him to preach the Gospel either in public or, more likely, in an underground house church. The Adjudicator also accepted that he had been arrested, detained and imprisoned for a period of two...
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