IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-005996 | |
|
First-tier Tribunal No: PA/52496/2022 IA/06406/2022 | |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 21 st of May 2025
Before
UPPER TRIBUNAL JUDGE RUDDICK
Between
KS
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Ms K. Staunton, instructed by Virgo Solicitors
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer
Heard at Field House on 12 May 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify him. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal ("the FTT") to dismiss his appeal against the respondent's decision of 17 June 2022 to refuse his protection and human rights claim, made on 1 November 2018.
2. An anonymity order was made by the First-tier Tribunal. I have considered whether it is appropriate to continue that order, taking into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private. I am satisfied that it is, because t he appellant has made an application for international protection and the UK's obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process outweigh the public interest in open justice at this stage in the proceedings.
3. The respondent accepts that the appellant is a citizen of Ethiopia born in March 2002 and that he is of Oromo ethnicity. The appellant says that he was a member of the Qeeroo youth wing of the Oromo Liberation Front (OLF) and that he fled Ethiopia around the end of March 2015 (when he was 13 years old) after having been arrested twice for his political activities. He also says that after his first arrest, he was severely beaten, and he relies on a medical report assessing his scars as either "highly consistent" or "consistent" with his account.
4. The respondent refused the appellant's asylum and protection claim on the grounds that his account was inconsistent with independent country evidence and his credibility had been damaged by his failure to claim asylum in the European countries he had passed through en route to the UK, as well as by his failure to disclose initially that he had claimed asylum in Sweden and been refused. Even if the appellant had been a supporter of the OLF in Ethiopia, his political activity had been too low-level and was now too far in the past to make him of adverse interest to the authorities. Nor was there any evidence that his limited political activity in the UK would have come to their attention.
5. The FTT heard evidence from the appellant and dismissed his appeal on credibility grounds.
The grounds of appeal
6. The appellant has been granted permission to appeal on two grounds.
7. The first ground challenges the FTT's approach to the scarring report on the grounds that
(i) at [29], it put less weight on the report because of its failure to refer to the legal guidance that applies in this jurisdiction or set out the Istanbul Protocol criteria, and thereby put form over substance, contrary to SSHD v MN and KY (Somalia) [2014] UKSC 30;
(ii) several criticisms of the report were based on clear errors of fact about its contents; and
(iii) it was procedurally unfair for the FTT not to put several of its concerns about the report to the appellant.
8. Secondly, the approach to credibility was erroneous, because:
(i) It was based in part on a clear mistake of fact at [34]-[35] about when protests such as the one the appellant says he participated in began;
(ii) The FTT failed to give adequate reasons for finding at [41] the appellant's account of being released from detention upon payment of a bribe was not plausible;
(iii) At [42], the FTT found that the appellant's credibility was damaged because he "did not initially disclose" to the Home Office that he had "previously claimed political asylum in Sweden", but he had disclosed it at his screening interview;
(iv) Also at [42], the FTT found that he appellant's credibility was damaged by his failure to lodge an appeal against the refusal of his asylum claim in Sweden, but there is no indication that it took the appellant's age at the time into account; he had been between 13 and 16 years old;
(v) The FTT failed to apply the current country guidance or give adequate reasons for departing from it when finding at [47] that the situation for OLF members and supporters had been improving since 2018;
(vi) At [50], the FTT had referred to various other discrepancies and implausibilities in the account but did not identify them. This constituted a failure to give reasons; and
(vii) Finally, the FTT had failed to take into account any factors that weighed in favour of a positive credibility assessment.
The hearing
9. At the beginning of the hearing, Mr Tufan conceded that there were multiple errors in the decision and that the respondent did not oppose the appeal.
10. It was also agreed that it was appropriate to remit the matter to the FTT, given the extent of fact-finding that would be required.
Discussion
11. Given the respondent's concession, I set out only briefly my reasons for considering that the decision must be set aside with no findings preserved.
12. As this as in every appeal, I have reminded myself of the principles of appellate restraint established in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4]. Nonetheless, I consider that the errors here are too numerous and too significant for the decision to stand.
13. Perhaps most significantly, the FTT has made two adverse credibility findings that run directly counter to the evidence in and findings of the Upper Tribunal in Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC), without even acknowledging the contradiction.
14. The first is that the FTT found at [34] that protests for Oromo rights only began in November 2015, which was inconsistent with the appellant's account of being arrested at a protest in March 2015. In fact, a letter from Amnesty International which was included as annex to Roba states:
"Moving to the years 2014 and 2015 [...] youth in the Oromia and Amhara regions launched a wave of what would become large scale and sustained street demonstrations [....]"
The DFAT report excerpted at [74] of Roba similarly refers to "violence against, and detention of, protesters across Oromia state between 2014 and 2018".
15. The second is at [47], where the FTT found that the appellant's credibility was damaged because "The objective evidence indicates that the situation has improved for the Oromo people, which is contrary to the evidence of the appellant who claims that it has worsened." The judge here relied on the statements in the respondent's March 2022 CPIN that in 2018 the Ethiopian government removed the OLF from its list of terror organisations and that it "remains a political party." The FTT thus fell into exactly the same error as in the FTT whose decision was overturned in Roba. As set out at [99] of Roba:
"At its heart, the decision of the First-tier Tribunal in this matter was to adopt the position of the optimists who consider the progression of the political reforms initiated by Prime Minister Abiy in 2018 to be on-going and succeeding. The respondent had successfully persuaded that Tribunal to reject the more pessimistic view that the Ethiopian government has reverted to its authoritarian and repressive past. However, save for the optimistic conclusions reached in the DFAT Report, the expert and objective evidence points to there being significant regression in both the federal and regional authorities conduct towards the OLF. Whilst the party continues to enjoy lawful status, its ability to operate is being significantly impeded by the arrest of various ranks of its leadership and general membership."
16. The fact that the situation for OLF members and supporters was not improving is, moreover, clear from the headnote in Roba:
"(1) MB (OLF and MTA - risk) Ethiopia CG [2007] UKAIT 00030 still accurately reflects the situation facing members and supporters of the OLF if returned to Ethiopia. However, in material respects, it is appropriate to clarify the existing guidance.
(2) OLF members and supporters and those specifically perceived by the authorities to be such members or supporters will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement.
(3) Those who have a significant history, known to the authorities, of OLF membership or support, or are perceived by the authorities to have such significant history will in general be at real risk of persecution by the authorities.
(4) 'Significant' should not be read as denoting a very high level of involvement or support. Rather, it relates to suspicion being established that a person is perceived by the authorities as possessing an anti-government agenda. This is a fact sensitive assessment."
17. I also agree that there were a number places in which the FTT made findings based on clear mistakes of fact about the evidence before it. These include:
(i) That the author of the scarring report failed to refer to the ageing of the scars ([30], [51]). In fact it was mentioned; the grounds refer to it being acknowledged in the "History from client" section of the report, but it was also mentioned in the first sentence of the "Opinion" section: "The injuries which [the appellant] describes happened when he was 13 years old - now approximately eight years ago."
(ii) At [42], the FTT found that the appellant's credibility was damaged because he "did not initially disclose" to the Home Office that he had "previously claimed political asylum in Sweden". In fact, his screening interview record shows plainly that he was asked "Were you issued any status (permission to stay) or documents in the third country?" and he answered, "I applied for asylum in Sweden in 2015 it was refused."
18. With regard to the FTT's failure to raise various criticisms of the expert report with the appellant, the decision of the Supreme Court in TUI UK Ltd (Respondent) v Griffiths (Appellant) [2023] UKSC 48 confirms that whether this was unfair depends on all of the circumstances. Here, one of the FTT's criticisms had not only never been raised but was also based on doubts about something that was entirely within the appellant's knowledge, namely, whether the expert had examined the appellant in person. This should have been put to the appellant.
19. I consider that these reasons are in themselves sufficient to require that the decision of the FTT be set aside. I therefore do not need to decide whether the other grounds of appeal are also made out.
Notice of Decision
The FTT decision dismissing the appellant's appeal involved multiple material errors of law and is set aside.
The appeal is remitted to the FTT for a fresh hearing on all issues, before any judge other than Judge Cohen.
E. Ruddick
Judge of the Upper Tribunal
Immigration and Asylum Chamber
15 May 2025