APPEAL No. [2004] UKIAT 00074 W (Ethiopia)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 25 March 2004

Date Determination notified: 22 April 2004

Before

Mr H J E Latter (Vice President)
Mrs J Harris
Mr C P O’Brian

Between

Secretary of State for the Home Department	APPELLANT	
and	 	
W	RESPONDENT	

For the Appellant:	Mr A Sheikh, Home Office Presenting Officer
For the Respondent:	Ms A Beale of Counsel

DETERMINATION AND REASONS

1.	The Secretary of State appeals against the determination of an Adjudicator, Mr J P Cameron who allowed the respondent’s appeal on both asylum and human rights grounds against the decision made on 27 March 2003 giving directions for her removal.  In this determination the Tribunal will refer to the respondent to this appeal as the applicant.

2.	The applicant left Ethiopia on 5 February 2003 arriving in the United Kingdom on the same day.  She claimed asylum on 6 February 2003 on the basis that she had a well-founded fear of persecution in Ethiopia because of her ethnic origin and political opinion.  She said that both her parents were Eritrean although she was born and brought up in Ethiopia.  Both she and her parents were members of the ELF-CC.  Several attempts had been made on her father’s life by Eritrean government officials because of his membership.  She claimed that she had not heard from her father since he went to Sudan. She feared that he may have been killed.  On 28 January 2003 her mother and siblings were arrested by the Ethiopian authorities.  The applicant believed that this was because of their Eritrean ethnicity.  If she were returned to Ethiopia she would be deported to Eritrea.  Her application was refused for the reasons which the Secretary of State has set out in his Reasons for Refusal letter dated 20 March 2003.  The Adjudicator heard the appeal against this decision on 1 July 2003.  

3.	The applicant gave oral evidence which can briefly be summarised as follows.  She was born on 1 January 1985 in Addis Ababa.  Both her parents were Eritrean.  He father was involved as a freedom fighter with Ibdallah Idris of the ELF which was known to her as Jabbah.  Her father was summoned to go to Sudan from time to time to join his party.   The applicant and her mother were involved in the women’s branch.  She had joined about two years previously but her mother had been involved for a long time.  They had attended a public demonstration in about October 2002 in support of the ELF.  Although the meetings were secret and the party was generally tolerated by the Ethiopian government, they faced danger from Eritrean government agents.  The applicant last saw her father in about September 2002 when he went to Sudan. They heard from other fighters that he might have been killed.  Her mother made enquiries and was told that there were rumours about his death but no official confirmation.

4.	On 28 January 2003 when the applicant was making her way home from school she was told by a neighbour that the Ethiopian government had arrested her mother, four sisters and brother.  She went to her home and found that it had been ransacked.  She stayed with a friend and the following day went to stay with her friend’s family in Saris.  The applicant was able to find an auctioneer to sell the furniture and valuables from her home raising approximately $2000.  An agent was found to bring her to the United Kingdom.  She feared return to either Ethiopia or Eritrea.  The Ethiopian authorities had arrested her mother and siblings. She believed they had been deported.  She could not go to Eritrea as the ELF was illegal there and the Eritrean authorities had tried to kill her father on a number of occasions.  She herself had never been to Eritrea.  

5.	The applicant had become involved with the ELF when she was about 16.  She had not been taught the specifics about their political theory and philosophy but the party stood for freedom, peace and democracy and wanted to achieve its aims peacefully.  Its main offices were in Khartoum although she did not know the address.  She also did not know whether her father had a position in the party or whether he had reported the incident on his life to the Ethiopian authorities.  

6.	The Adjudicator has set out his analysis of the evidence in paragraphs 38-46 of his determination.  He accepted that the applicant was an 18 year old female who had lived in Ethiopia until coming to the United Kingdom to claim asylum.  She had stated that her father and mother were members of the ELF and she herself had joined when she was 16.  Her father had not returned from a trip to the Sudan in 2002 and it was the applicant’s belief that he had been killed.  

  7.	The Adjudicator found the applicant to be a credible witness.  He commented that she had not sought to embellish her account before him.  He found that she was a member of the ELF and involved with a branch of the party.  Her parents were members of the same party and her father used to travel to Sudan on a regular basis.  It appeared from the objective evidence that the deportation of Eritrean citizens from Ethiopia had ceased but the Adjudicator referred to a letter from the UNHCR dated 18 December 2002 confirming “UNHCR’s general understanding that although the situation had improved, the threat of deportation remains despite the signing by both parties of the Cessation of Hostilities Agreement of 18 June 2000 and the comprehensive Peace Agreement of 12 December 2000”.   The Adjudicator said that he had no reason to doubt the applicant’s evidence in relation to the detention of her mother and siblings.  There was no evidence before him to indicate that they had in fact been deported but clearly the applicant herself had had no contact with her family since leaving Ethiopia on 5 February 2003.

8.	The Adjudicator noted that the removal directions were to Ethiopia.  It was his view that the Ethiopian authorities would consider the applicant to be Eritrean bearing in mind that both her parents were from Eritrea.  There was no evidence before him to indicate that any members of the family had been granted Ethiopian citizenship.  If that was the case, then Ethiopia was likely to deport the applicant to Eritrea.  She had never been there although there was evidence that she had family in Eritrea.  It was his view that she would not be able to prove that she was of Eritrean nationality as she could not produce three witnesses to confirm that her parents were Eritrean.  Although the Eritrean government might grant her some status she was likely to be issued with a yellow card which was the equivalent of a residence permit provided to foreigners lawfully staying in the country.  

9.	The Adjudicator was referred to the Tribunal determination in Adam and Simon Amha [2002] UKIAT 08171.  In that case the Tribunal concluded that the applicants were at risk of ill-treatment and deportation and that removal to Ethiopia would lead to a risk of persecution because of their mixed ethnicity.  

10.	In the light of the evidence before him, the Adjudicator was satisfied that if the Applicant were to be returned to Ethiopia, there was a reasonable degree of likelihood that she would be detained and deported to Eritrea.  There was no guarantee that Eritrea would accept her as she could not comply with its nationality requirements.  If the authorities did accept her, she would be deemed to be a foreign national and given a yellow card.  It was clear from the objective evidence that the authorities did harass and ill-treat yellow card holders.  She was an 18 year old female who had lived all her life in Ethiopia with the support of her family but she no longer had that support.   In summary, the Adjudicator accepted that if she were returned to Ethiopia there was a reasonable degree of likelihood that she would be detained and deported.  This treatment would be persecutory for a Convention reason.  The Adjudicator went on to consider the claim under Article 3 and accepted that there would be a real risk of such ill-treatment if returned to Ethiopia.

11.	In the grounds of appeal the Tribunal was invited to note that paragraphs 33 to 40 of the Adjudicator’s determination were missing when issued. The Secretary of State had been unable to make specific reference to them.  It is argued that the Adjudicator erred in law when he found that it was not likely that the applicant would be able to prove her Eritrean nationality.  He had failed to have reference to paragraph 5.6 of the Eritrea CIPU Report which had been before him.  This stated that paying tax or voting in the 1993 referendum were not preconditions to establishing nationality.  He had failed to note that the applicant’s mother had held an Eritrean identity card.  

12.	It is further argued that the Adjudicator erred in law by not giving reasons for his findings that the Applicant would be deemed to be a foreign national or for his findings in paragraph 30 that she would be ill-treated in Eritrea.  There was no indication who would ill-treat the Applicant or why they would do so.  He had not explained why there would be a real risk that her political connections would cause her detention or how the authorities in Eritrea would be aware of her political sympathies.  The Adjudicator had found that the Applicant’s father had a significant role in the party whereas it was her evidence in answer to question 18 of her interview that he did not hold any official post.  The Adjudicator was wrong to find that her father had been killed when it was her evidence that she did not know for sure what had happened to him.  He had misapplied the objective evidence when considering her father’s activities wrongly confusing the Eritrean Islamic Salvation (EIS) with the ELF.

13.	At the hearing before the Tribunal Mr Sheikh applied to amend his grounds to argue that the Adjudicator had erred by finding that the Ethiopian authorities would consider the applicant to be an Eritrean and that she would be at risk on return to Ethiopia.  The onus of proof was on the Applicant to prove her case that she would be at risk if returned to Ethiopia with a real risk of then being returned to Eritrea.  If it was her case that she was stateless it was for her to prove it.  The Secretary of State had not been able to deal properly with the Adjudicator’s determination as paragraphs 33-40 were missing from the copy served on him.  

14.	Ms Beale resisted the application for an amendment.  She argued that the issues were clear and could have been put in the grounds of appeal.  The President’s Practice Direction No. 4 directed that a variation of the grounds of appeal should be made either 21 days before the date fixed for the hearing or as soon as reasonably practicable.  The Secretary of State may not have been served with all the papers but it would have been open to him to obtain the missing pages rather than wait until the day of the hearing. 

15.	The Tribunal was not satisfied that it would be right to permit a variation of the grounds at this late stage.  It is accepted that paragraphs 33-40 of the Adjudicator’s determination were missing when served on the parties.  When granting permission the Acting Vice President noted that pages 8 and 9 of the determination were missing from the appeal file.  The grant of permission and the notice of hearing were issued on 8 October 2003 with a hearing date for 25 March 2004.  No action appears to have been taken by either party until February 2004 when the applicant’s representatives made enquiries to obtain the missing pages.  As this was the Secretary of State’s appeal, it is not unreasonable to expect the Secretary of State to make an application to obtain the missing paragraphs or to consider in the light of the terms of the grant of permission whether any amendments should be made to the grounds rather then waiting until the day of the hearing.  The application to amend the grounds was refused.

16.	Mr Sheikh referred again to the fact that pages 8 and 9 of the determination had not been served on the Secretary of State.  He submitted that in these circumstances the promulgation was a nullity as the full determination had not been issued. 

17.	On the merits of the appeal he submitted that the Adjudicator had been wrong to find that the applicant would be unable to prove that she was Eritrean.  If she were returned to Ethiopia and then removed to Eritrea, there was nothing to indicate that she would be at risk of persecution there.  The Adjudicator had not made a finding that she was stateless or that she was an Eritrean national.  Even if she would have no recourse to public services in Eritrea because she was unable to prove her nationality, that did not amount to persecution or treatment contrary to Article 3. 

18.	Mr Sheikh referred the Tribunal to the determination in L (Ethiopia) [2003] UKIAT 0016.  The Adjudicator’s findings were speculative.  Even if returned to Eritrea, she would be given a yellow card and could apply for citizenship.  It had not been open to the Adjudicator to find that she would be treated in effect as a second class citizen there.   There was no reason in any event why the applicant should not have made or now make an application for Eritrean citizenship.  There was no indication as to who would ill-treat her there or why.  The Adjudicator had misunderstood the role of the applicant’s father.  In her interview she had said that he did not have any official position.  His findings that her father may have been killed were speculation.  There would be no real risk of deportation to Eritrea or of ill-treatment if she was sent there.

19.	Ms Beale submitted that the fact that two pages were missing from the determination as issued did not make all the subsequent proceedings a nullity.  The Secretary of State had applied for and been granted permission to appeal.  He had waived any rights to treat the promulgation as a nullity.  He could have sought the missing pages as the applicant’s representatives had done.

20.	She submitted that the removal directions were to Ethiopia and not to Eritrea.  Although the grounds referred to paragraph 30 of the Adjudicator’s determination, that paragraph did not record findings but was a summary of the submissions made on behalf of the applicant.  His findings were set out in paragraphs 38-46.  The grounds did not deal with the risk in Ethiopia where the Adjudicator had made a clear finding that the applicant would be at risk of detention and deportation.  It had not been put forward in evidence that she was an Ethiopian citizen.  The letter from the UNHCR confirmed that there would be a risk on return.  The Adjudicator had been entitled to find that the applicant’s mother and siblings had been detained.  She faced a similar risk on return.  There was no basis to contradict the Adjudicator’s findings that this applicant would be at a real risk of persecution in Ethiopia.  The Adjudicator had dealt adequately with any consequential risks in Eritrea.  There was no proper basis for interfering with the Adjudicator’s findings.  

21.	The Tribunal will deal firstly with the consequences of the appellate authority serving the determination with pages 8 and 9 (paragraphs 33-40) missing.  To this extent the promulgation was defective but it does not render a nullity all that follows.  The Secretary of State applied for permission to appeal making the point that these paragraphs were missing.  Permission to appeal was granted. The Acting Vice President noted the omission of pages 8 and 9 and commented that this may well have an effect upon the possibilities as to the outcome of the appeal.  His determination was issued to the parties on 8 October 2003.  It was open to either party to contact this authority to obtain the missing pages.  In fact nothing happened until February 2004 when the applicant’s representatives made enquiries and the missing pages were supplied.  In our judgment any right to treat the promulgation as a nullity was waived by the application for and subsequent grant of permission.  

22.	The grounds focus to a large extent on the contents of paragraph 30 which in fact record submissions made on behalf of the applicant rather than the Adjudicator’s findings but insofar as these submissions are reflected in the findings it is properly open to the Secretary of State to challenge them.  It is argued that the Adjudicator was wrong to find that it was not likely that the applicant would be able to prove her Eritrean nationality and that he had failed to have regard to the requirements for citizenship set out in the CIPU Report for Eritrea.  This report records that the requirement imposed by the Eritrean authorities for three citizens to confirm a claim to nationality is used because it is not always possible to check a person’s identity by use of a birth certificate.  For these reasons an applicant for Eritrean nationality is required to call on any three witnesses to verify that she is an Eritrean national: see paragraph 5.10 of the CIPU report.  It may be arguable that this should not provide an undue obstacle for the applicant but this was a question of fact for the Adjudicator to resolve on the evidence before him.  He came to the view that, as the applicant did not know where her mother and siblings were and even if they had been deported to Eritrea she would have no way of contacting them, she would not be able to prove that she was of Eritrean nationality and that she could not produce three witnesses to confirm that her parents were Eritrean.  In our judgment this finding of fact was properly open to the Adjudicator on the evidence. 

23.	It is argued that the Adjudicator was wrong to find that if the Applicant were returned to Eritrea, there was no guarantee that the authorities would accept her.  He found that she would undoubtedly be deemed to be a foreign national and given a yellow card.  She would be ill-treated there.  In paragraph 40 of his determination the Adjudicator accepted that there were instances of people holding yellow cards who had been arrested and ill-treated.  The Applicant was an 18 year old female who had lived all her life in Ethiopia with the support of her family.  The Adjudicator’s findings on these issues were being made in the context of whether removal to Eritrea from Ethiopia could properly be regarded as persecutory.  The Adjudicator found that in the applicant’s particular circumstances it would be.

24.	The grounds also take issue with the Adjudicator’s findings about the role of the applicant’s father.  His findings are set out in paragraphs 38 and 39 of the determination.  The Adjudicator accepted the applicant’s evidence about her father’s trips to Sudan and that her belief about what had happened to him was genuine.    In this context whether he held an office in the ELF or not was a relatively insignificant factor. The Tribunal are also not satisfied that the Adjudicator confused the ELF and the EIS or, even if he did, that it has any material bearing on the outcome of this appeal.  At the heart of the Adjudicator’s determination was an acceptance that the Applicant was a credible witness.  He accepted her evidence that her mother and siblings had been detained because of their Eritrean ethnic origin.  He did comment that there was no evidence before him to indicate that they had in fact been deported but he also took into account the fact  that the Applicant had had no contact with her family since leaving Ethiopia in February 2003.  It was for the Adjudicator to assess what inferences could properly drawn from this evidence.

25.	He accepted that if the applicant were returned to Ethiopia there was a reasonable degree of likelihood that she would be detained and deported.  He found that this treatment would be persecutory for a Convention reason agreeing with the Tribunal’s findings in Adam and Simon Amha.  The Adjudicator commented in paragraph 40 of his determination that there was no evidence before him that any members of the applicant’s family had been granted Ethiopian citizenship and if that was the case then the Ethiopian Authorities were likely to deport her to Eritrea.

  26.	Dealing with the question of the Applicant’s citizenship, the Tribunal find it hard to accept that the Applicant was not at least entitled to Ethiopian citizenship.  She was born in Addis Ababa at a time before the state of Eritrea existed.  Even though her parents may have been of Eritrean origin, there is no reason to believe that they would not have been Ethiopian citizens.  

27.	The importance of citizenship when assessing asylum claims is apparent from the wording of the Refugee Convention and is more fully explored in the Tribunal Determination in L (Ethiopia).  A refugee is defined as someone who is outside his country of nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country.  If an applicant does not have a nationality, his claim is assessed in relation to his country of habitual residence.  If someone has more then one nationality, the county of his nationality shall mean each of the countries of which he is a national.   A person shall not be deemed to be lacking the protection of the country of his nationality if without any valid reason based on a well-founded fear he has not availed himself of the protection of one of the countries of which he is a national.

28.	If the Applicant is a citizen of Ethiopia her fear of persecution must be assessed in relation to Ethiopia.  If in fact she is stateless her claim must be assessed in relation to her country of habitual residence which is also Ethiopia.   It is only if in fact the applicant is a citizen of Eritrea that she must look to the Eritrean authorities for protection before becoming entitled to refugee status.  It is in this context that the issue arises of whether an asylum claimant can reasonably be expected to apply for citizenship to a country if he is or appears to be entitled to nationality.  As the Tribunal properly commented in paragraph 44 of L (Ethiopia), to leave this as an optional matter would make it possible for bogus claimants to benefit from international protection simply by the device of not making an application even though in law they had or were entitled to nationality of a country where they would not be at risk of persecution. 

29.	The Tribunal went on to comment that in asylum cases the principles set out in Bradshaw [1994] Imm AR 359 had to be qualified to take account of whether there were valid reasons for a claimant not approaching his Embassy or Consulate or the authorities of the country direct about an application for citizenship or residence.  In some cases such an approach could place a claimant or his family at risk: it may alert the authorities to the fact that he had escaped pursuit by fleeing the country.  There could be no blanket assumption that such approaches would create an increased risk for claimants.  Each case must be looked at on the evidence in its own particular circumstances.  As the Tribunal rightly observed, paragraph 93 of the UNHCR Handbook clearly contemplated a case by case approach.

30.	In our judgment this is just what the Adjudicator has done in the present appeal.  He was not satisfied that the applicant would be able to establish that she was Eritrean.   This was a decision of fact properly open to him on the evidence.   It follows that he could not be satisfied that she would be able to look to the Eritrean authorities for protection.  Putting it at its simplest, the Adjudicator had to consider what would happen to the applicant if returned to Ethiopia.  Was there a real risk that she would suffer treatment of such severity that it amounted to persecution for a Convention reason.  He was satisfied on the basis of the evidence before him that her mother and siblings had been detained because of their Eritrean ethnicity despite the fact that they had lived all their lives in Ethiopia.  The Adjudicator was entitled to conclude that there was a similar risk for this applicant, whether she was an Ethiopian citizen or not. There is evidence to confirm that mass deportations have ceased but nonetheless the Adjudicator was entitled to rely on the UNHCR evidence which he has referred to in paragraph 39 of his determination that a threat of deportation did remain despite the signing by both sides of the Cessation of Hostilities Agreement.  It was for him to assess whether that risk applied on the facts as they related to this particular applicant.  Even though the Tribunal may not necessarily have come to the same conclusion, in our judgment the Adjudicator’s findings were properly open to him for the reasons he gave.

31.	In these circumstances, the appeal by the Secretary of State is dismissed.

									H J E Latter
									Vice President