United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004080
	First-tier Tribunal No: PA/54493/2023 LP/02789/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

 

 

Between

 

SH

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms. S. Akinbolu, (Counsel instructed by CK Solicitors)

For the Respondent: Mr. M. Parvar (Senior Home Office Presenting Officer)

 

Heard at Field House (hybrid hearing) on 13 February 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 the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

Introduction

1.        This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of First-tier tribunal Judge E. M. Field ("the judge") promulgated on 8 July 2024 dismissing the appellant's appeal against the respondent's decision to refuse his protection and human rights' claim. This remaking follows the setting aside of the judge's decision by an Upper Tribunal Panel, comprising of Upper Tribunal Judge Landes and Deputy Upper Tribunal Judge Welsh, for a material error of law, in a decision and reasons issued on 6 January 2025. The Panel directed that the appeal be reheard in the Upper Tribunal. The Panel also made a direction in relation to a preserved finding of fact, which is recorded below. The error of law decision is also attached in the annex to this decision.

Background

2.        The appellant is an Ethiopian national of Oromo ethnicity. He was born in 2004. At the time of the hearing before us on 13 February 2025 (referred to hereafter as, "the hearing") he was 20 years old. He left Ethiopia when he was just 10 years old (in evidence he said, "late 10, or 11"). He travelled to Germany where he claimed asylum, but his claim was eventually rejected. He left Germany, having resided there for approximately five years and he arrived in the United Kingdom on 3 June 2021. On 4 June 2021, he claimed asylum, then as a minor, aged 17. The basis of the appellant's protection claim is that he faces a real risk of persecution, or serious harm on the grounds of his political opinion, or his imputed political opinion. He claims that on return to Ethiopia the authorities will perceive him to be a supporter of the Oromo Liberation Front ("OLF"), that perception arising from the following combination of factors: (1) his attendance at a demonstration against the "Master Plan" in Ethiopia in April 2014, (2) his father's connection with OLF, and (3) his sur place activities in Germany and the United Kingdom.

Hearing

Preliminary issues

3.        At the hearing we had a bundle containing all the documents that were before the First-tier Tribunal. We also had a small supplementary bundle, which included an amended witness statement, as well as a letter from Mr. Belay, the Chair of OLF United Kingdom, and a screenshot of the appellant's Instagram account. At the start of the hearing, Ms. Akinbolu, for the appellant, provided an updated letter from Mr. Belay, which was the same as the previous letter, save that, it also referred to the appellant having donated some money to OLF, United Kingdom. Additionally, we were provided with three receipts, one from 2023 and two from 2024, showing that the appellant had made three separate donations to OLF, United Kingdom, of £10 each. Mr. Parvar, for the respondent, did not object to the admission of the appellant's updating evidence. We considered that the evidence should be admitted in the interests of justice.

4.        We have considered all of the material in the bundle and the supplementary bundle, as well as the documents provided at the hearing, when reaching this decision.

5.        At the start of the hearing, we discussed and agreed the issues with the representatives, as set out below.

Issues in dispute

6.        The parties agreed that the issues in dispute were as follows:

(a)     What are, or were, the appellant's activities?

(b)    Does the appellant's father have an adverse history with the authorities?

(c)     Would the appellant already have come to the attention of the authorities? Or would he come to their attention as part of the returns process, or on return?

(d)    If so, would the authorities take an adverse interest? Would they perceive him as having an anti-government agenda?

(e)     Does HJ (Iran), HT (Cameroon) UKSC 31 , RT (Zimbabwe) [2012] UKSC 38 apply? Would the appellant come to the adverse attention of the authorities subsequently as a result of the activities that he would carry out, or would wish to carry out?

(f)      Article 8. Whether there would be serious obstacles to his re-integration in Ethiopia? Whether it would be disproportionate to his Article 8 rights to return the appellant to Ethiopia?

7.        During our discussion with the parties, Mr. Parvar stated that, if everything that the appellant had said was accepted, then the respondent would accept that the appellant would face a real risk on return to Ethiopia. However, the respondent did not accept what the appellant had said and took issue with his credibility.

Issues not in dispute and preserved finding of fact

8.        For the avoidance of doubt, the respondent does not dispute that: (1) the appellant is an Ethiopian national of Oromo ethnicity, born in 2004, (2) he left Ethiopia in 2014 and travelled to Germany where he claimed asylum and lived for 5 years before his claim was refused, and (3) he entered the United Kingdom and claimed asylum on 4 June 2021, as a minor, then aged 17 years old.

9.        There is a preserved finding of fact from paragraph 19 of the First-tier Tribunal judge's decision, namely that, "the Appellant participated in a demonstration against the Master Plan in April 2014". For completeness, paragraph 19 stated as follows:

"[19] Overall, with regard to all the evidence before me including the CPIN, I find it credible and accept that the appellant participated in a demonstration against the so-called Master Plan in April 2014. I find the appellants account relating to the demonstration to be substantially internally consistent and, with reference to the fact that the appellant was a child at that time, I find that there is sufficiency of detail. With regard to the Country Information and the Country Guidance case of AAR (OLF - MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC), I accept that the relationship between the OLF and successive Ethiopian governments is long and complex and that there is a history of heavy-handed response to civil unrest in the Oromia region. Further, prior to 2018, the OLF was designated a terrorist organisation".

Evidence and submissions

10.    We heard evidence from the appellant who was assisted by an Oromo interpreter. The Oromo interpreter appeared over a CVP link. Everyone else was present in the hearing room. The appellant was cross-examined, re-examined and answered our questions. We also heard submissions from both advocates to whom we are grateful. We refer to the evidence and submissions as necessary when making our findings of fact.

11.    At the hearing we noted that we had not been provided with any updated background evidence, and that the most up to date information we had in relation to the OLF was the respondent's CPIN and the country guidance case of Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC) (" Roba"), both of which we refer to in our decision. However, both advocates agreed that the material conditions in the country had not changed significantly since 2022, such that we could appropriately consider the appellant's case against the CPIN and country guidance case as well as the other background information in the bundle, none of which post-dated 2023.

Legal Framework

12. The appellant appeals on the grounds that his removal from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, on the basis that he is a person eligible for a grant of humanitarian protection, and that his removal would also be unlawful under section 6 of the Human Rights Act 1998, because it would breach his right to a private life under Article 8.
13. Under section 85(4) of the 2002 Act, we are entitled to consider any matter we think relevant to the substance of the decision, including a matter arising after the date of the decision.
14. It is for the appellant to show that there are substantial grounds for believing that he qualifies as a refugee within the meaning of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, or that if returned to his own country he would face a real risk of suffering serious harm as defined in the Immigration Rules. So far as the Human Rights Convention is concerned, it is for the appellant to show that there are substantial grounds for believing the evidence.
15. In asylum cases, what is described as the "lower standard of proof" applies. This means that the appellant must demonstrate that there is a "reasonable likelihood" or a "serious possibility" that he will be persecuted for a Convention reason if he is returned to his own country ( R v Secretary of State for the Home Department, ex parte Sivakumaran [1998] AC 958, at 994). This lower standard has been described in the case law as a "reasonable possibility", a "real chance", or a "real risk", or "a real as opposed to fanciful risk" that future events will happen, and in assessing an appellant's credibility it is likewise important to conduct that exercise in the context of the lower standard of proof (see the survey of the caselaw in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, at 49 - 67). Further, in assessing an appellant's credibility in the context of a claim for asylum the tribunal must apply the "most anxious scrutiny" in its assessment of the appellant's account ( Bugdaycay v Secretary of State for the Home Department [1987] AC 514, at 531). The tribunal should also consider all the evidence in the case "in the round" ( Karanakaran v Secretary of State for the Home Department [2000] 2 All ER 449). There is no requirement in law that an appellant corroborate his or her claim MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, at 77).
16. As regards the situation of Oromos and members and supporters of the Oromo Liberation Front, we are assisted by a country guidance case: Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC) (" Roba"). The headnote to Roba sets out as follows:

"OLF members and supporters and those specifically perceived by the authorities to be such members or supporters will in general be at risk if they have previously been arrested or detained on suspicion of OLF involvement

 

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 a real risk of persecution by the authorities

 

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".

(Emphasis added)

17.    Paragraph 100 of Roba poses the question: "what is the meaning to be ascribed to the term 'significant history' which appears in the country guidance?"

18.    In paragraph 101 of Roba the Upper Tribunal noted that although the term 'significant history' was used in the previous country guidance case without an explicit elaboration about the meaning of that term, the context in which the term had been employed was the expert evidence that the Upper Tribunal in MB (OLF and MTA - risk) Ethiopia CG [2007] UKAIT 00030 had heard and accepted without qualification from country expert, Dr. Roy Love. The Upper Tribunal recalled that, "[i]t was his evidence that the modus operandi of the Ethiopian security forces was to arrest large number of civilians accusing them of OLF involvement, only to release and then re arrest them, in a cycle of harassment and ill treatment. Others were kept in arbitrary detention for prolonged periods, often without hearing or cause shown and sometimes incommunicado".

19.    In paragraph 102 of Roba the Upper Tribunal noted how the evidence was not materially different at the time as compared to when MB was considered. The Upper Tribunal stated that:

"Whilst it cannot be said that any level of support for the OLF will give rise to a well-founded fear of persecution it cannot be said that 'significant' must denote a high-level or prominent connection to the party. We note Mr. Southern's evidence on behalf of Amnesty International, consistent with other evidence placed before us, that "both formal arrest warrants and institutional as well as personal memory of individual officers plays a major role in determining who is perceived as possessing an anti-government agenda and therefore subject to suspicion." This local, and informal approach is the context in which we must place the numbers of those arrested. We therefore conclude that 'significant' should not be read as necessarily denoting a very high level of involvement for 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".

Findings and reasons

(a)     What are, or were, the appellant's activities?

20.    In respect of the first issue - what are, or were, the appellant's activities - we break our findings into five sub-topics: (i) the appellant's attendance at the demonstration in 2014, (ii) the circumstances in which the appellant left Ethiopia, (iii) the appellant's sur place activities in Germany, (iv) the appellant's sur place activities in the United Kingdom, and (v) the appellant's contact with his family since he left Ethiopia. We address each of these in turn.

(i)                  The appellant's attendance at the demonstration against the "Master Plan" in 2014

The starting point for our consideration of this issue is the preserved finding from the First-tier Tribunal judgement. This is that the appellant participated in a demonstration against the "Master Plan" in April 2014.

21.    At the hearing, whilst accepting the preserved finding, Mr. Parvar invited us to make an adverse credibility finding against the appellant because he claimed to have scars as a result of having been hit by the authorities during the crackdown on the demonstration, but he had not provided any medical evidence to support his claim. Mr. Parvar conceded that this point had not been made in the respondent's refusal letter, or at any point prior to the hearing. Given that the appellant did not know before the hearing that the respondent was challenging what he had said about this, in our view it is not appropriate to make any adverse credibility finding in relation to this issue. Moreover, in view of the background information (also noted by the judge in paragraph 19) which refers to the authorities "heavy handed" tactics in breaking up demonstrations, and their indiscriminate targeting of both young children and older people, we accept that the appellant's account about being injured during the demonstration is plausible.

22.    The other aspect of the appellant's account about the demonstration that was challenged by Mr. Parvar, was that the appellant had been adamant in his interview and witness statements that people taking photographs at the demonstration must have been government spies and that there was no other explanation about why they would have been taking photographs. We consider that the appellant overemphasised this point and we note that he conceded, when challenged in cross-examination that they could have been other reasons for taking photographs at the demonstration. He explained that he thought that they were government spies but added that some of the people taking photographs may also have been those attending the demonstration, as well as members of the media reporting on the demonstrations. In our view, although we note that the appellant has overemphasised his case in his witness statements, this line of cross-examination likewise does not damage the appellant's credibility. He has been consistent in stating that his recollection of events is that people at the demonstration were taking photographs because his surmising that they may have been government spies is reasonable when set against the background materials, which refer to the Ethiopian government monitoring demonstrations (see further below). Thus, in our view, and bearing in mind both the appellant's young age at the time of these events, and that they now happened over a decade ago, the appellant's evidence about his experiences when attending the demonstration against the "Master Plan" is credible.

23.    However, we return below, to the issue of whether the appellant would have come directly to the authority's attention because of his participation in the demonstration against the "Master Plan".

(ii)                The circumstances in which the appellant left Ethiopia

24.    The appellant says that he left Ethiopia shortly after the authorities cracked down on the demonstration against the "Master Plan". He says that the authorities attended the homes of children who had taken part in the demonstration, and that to avoid being arrested by the authorities and out of fear he decided to flee the country. The appellant said that he left the country without his parents' knowledge. In his SEF interview he said that he left with "friends" who were about 14 or 15 years old. During cross-examination, Mr. Parvar asked the appellant how old the friends he left with were, and the appellant said that they "were over 18" and "adults". Mr. Parvar suggested to the appellant, and also made the point in his submissions, that the appellant had not been truthful about the circumstances in which he left Ethiopia because it was inconceivable that a ten-year-old boy would have been able to leave the country with only the help of other children, let alone fund such a journey without the support of his parents. Mr. Parvar also suggested (and this is another point to which we will return below) that the appellant had not been truthful about the contact he has had with his family since leaving Ethiopia, and that it is likely that they funded the appellant's journey. We have carefully considered all the evidence that we have heard about the circumstances in which the appellant left Ethiopia and travelled to Europe. We find that the appellant's explanation about why he left the country has been consistent and that it is supported by the background information about events in Ethiopia at that time. However, we do agree to some extent with Mr. Parvar, in that there is a degree of implausibility about what the appellant has said about his journey to Europe. In that regard, even making an allowance for the fact that he was "late 10 or 11 years old" when he left Ethiopia, we find that the appellant has been inconsistent and vague in his evidence about with whom he left the country, and also about how his journey to Europe was funded.

(iii)              The appellant's sur place activities in Germany

25. The appellant gave evidence that he attended several demonstrations whilst living in Germany. He provided seven photographs in support of this part of his case. During the hearing we went through each of the photographs, which we understand to have come from the grid on his Instagram (a screenshot of which was provided in the supplementary bundle). The photographs show him alongside other protesters at demonstrations in Berlin and Munich. In two of the photographs, the appellant is shown standing in front of the Brandenburg Gate, holding a sign saying, "Abiy Ahmed is a killer" and depicting Abiy Ahmed's photograph. In another photograph, which he said was taken at a demonstration in Munich, he is standing in front of a fountain with a group of youths, and he is holding up an OLF flag. There is also a photograph of the appellant draped in the OLF flag at a station, which he said was taken on his way to the demonstration in Berlin. The appellant said that the demonstrations took place in July 2020 (and this is the date recorded on some of the photographs), in response to the killing of Hachalu Hundessa. This was a very significant event, which is referred to in Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC) at paragraph 41, and in the CPIN Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army at page 28. Hachalu Hundessa was a popular Oromo singer and an activist who had been critical of Abiy Ahmed. His killing in Addis Ababa on 29 June 2020 led to widespread protests in the capital and in the Oromia Region, resulting in a repressive crackdown, in which over 100 people were killed, 9,000 people were arrested and which led the Ethiopian authorities to shut down the internet. The background materials also record that protests took place in other major cities in the United States and in Europe in July 2020. Although Mr. Parvar initially sought to challenge what the demonstrations represented, it is clear to us from the appellant's evidence, which is both internally consistent and consistent with the information in the country guidance case, the CPIN and the background materials, that the appellant attended several demonstrations in Germany in the summer of 2020, in support of OLF protests against the Ethiopian government and Abiy Ahmed, following the death of Hachalu Hundessa.

(iv)              The appellant's sur place activities in the United Kingdom

26. As regards the appellant's sur place activities since he has been in the United Kingdom, we note that Ms. Akinbolu, in her submissions described the appellant as having engaged in "low level" support of the OLF. We agree with this characterisation. We note that in his evidence at the hearing, the appellant initially said that he had taken part in demonstrations in the United Kingdom. This was an exaggeration. When he was asked about this, he conceded that he had not in fact attended any demonstrations in the United Kingdom but some meetings. However, in our view this exaggeration does not undermine the core of his case. Further, we accept the appellant's evidence that he has attended meetings of the OLF, United Kingdom and that he has been able to attend some meetings in Finsbury Park, London but owing to his lack of means, not those further afield, in the Midlands and the north of England. We also accept the evidence he has provided by way of three receipts, showing that he has made cash donations of £10 each to the OLF, United Kingdom and note that these were not challenged on behalf of the respondent. The appellant said that he understood that his donations would assist the Oromo cause back in Ethiopia.
27. We were invited by Mr. Parvar not to attach any weight to the letter from Mr. Belay, the Chairman of the OLF Committee in the United Kingdom, who did not attend the Upper Tribunal to give evidence. We do not attach any weight to this letter, which we also note was somewhat contradictory in parts with the appellant's own evidence. For example, Mr. Belay referred to the appellant as having distributed leaflets during a rally, but the appellant did not say that he had done so (and as noted in the paragraph above stated that he had not attended any demonstrations in the United Kingdom). In our view, the letter from Mr. Belay does not further assist the appellant's case, but we do not find that it undermines the evidence he has given about his support of the OLF cause. As noted above, on the appellant's own case, as put by Ms. Akinbolu, his support of the OLF has been somewhat limited whilst in the United Kingdom, which he explains was due initially to not being permitted by his key workers to attend demonstrations but also due to a lack of means to attend events, and that he has also been busy with his studies until recently. We find these explanations plausible, but that they also reflect that whilst he is supportive of the OLF, he has not had a significant level of involvement with the OLF whilst he has been living in the United Kingdom.

(v)                The appellant's contact with his family since leaving Ethiopia

28. Another aspect of the appellant's case which was hotly contested on behalf of the respondent was the lack of contact that the appellant claims to have had with his family since he left Ethiopia. We agree that the appellant has been inconsistent in the evidence that he has given about the contact he has made with his family. Prior to the hearing, the appellant's evidence was that the last time he had been in contact with his family was when he was in Libya and that he had tried to contact his family whilst he had been in Germany but had been unsuccessful. However, at the hearing, the appellant said that he had contacted his family whilst he was in Germany, via some students from his local area in Ethiopia, whom he had befriended on Instagram. The appellant was unable to provide an explanation for this inconsistency in his evidence. Mr. Parvar also pointed out to the appellant in cross-examination, that in his asylum interview he had said that his parents knew where he was now - meaning that they knew he was in the United Kingdom but that if he had not been in contact with them since he has been here then they could not have known that he was in the United Kingdom Likewise, this is an inconsistency in his evidence which was not explained. In view of these inconsistencies and the lack of any adequate explanation from the appellant, we find his evidence about the contact that he has had with his family to be contradictory, and we do not accept that part of his evidence.
29. Following on from this, in his submissions Mr. Parvar suggested that the appellant has in fact been in contact with his family but that he had lied about it, as an excuse for not providing evidence to corroborate his account about the circumstances in which he left Ethiopia and about his father's support of the OLF and adverse history with the authorities. However, we do not agree with this submission, which we do not, in any event, consider would have any great weight even if we did. First, we are conscious that the appellant is not required to corroborate his claim (MAH (Egypt) applies). Secondly, even if the appellant has been in contact with his family, we are doubtful that evidence from his family members, for example, a letter in support, would provide significant assistance to his claim, and such hypothetical evidence would itself likely be criticised by the respondent as being self-serving and holding little weight.

(b)    Does the appellant's father have an adverse history with the authorities?

30. The appellant's evidence was that his father had been harassed, arrested and detained on several occasions whilst the appellant was a child living with his family in his village in Agarfa Town, Ethiopia. His understanding was that this was because the authorities suspected that he was a member, or supporter of the OLF. We accept the appellant's evidence. First, we note that the appellant has generally been consistent in his evidence. He referred to this in his SEF interview on 4 October 2022 (questions 46, 58 and 59), he referred to this in his witness statements, dated 8 July 2022 (paragraph 9 - "my father was jailed several times for supporting the OLF") and his amended witness statement, dated 31 January 2024 (paragraphs 9 -11 "my father had been jailed several times for supporting the OLF" "I was too young to understand most of the things: "but he was an active supporter" "jailed here and there"). Additionally, in his evidence at the hearing, the appellant said that his father was "harassed, detained, tortured, released several times", due to his membership and support of the OLF. In assessing the appellant's evidence, we are conscious of the fact that he is recalling events as he would have perceived and understood them as a boy of just 10 years or younger. He is also recalling events that happened more than a decade ago. We are satisfied that the level of detail that the appellant has provided about these events is consistent with that which could be expected of someone who was a boy at the time. The appellant has been broadly consistent in his interview, his witness statements and in his oral evidence. His evidence about his father being arrested and detained on multiple occasions based on his perceived (or actual) support of the OLF is also consistent with the background materials, which refer to the authorities making sweeping arrests of OLF supporters and perceived supporters, and detaining people, often without charge, to supress support for the OLF. We therefore find that the appellant's evidence is consistent with the background materials. We note that there was only a limited challenge to this aspect of the appellant's account in cross-examination, which focussed on the lack of corroborative evidence from his father. We have addressed this issue already above. For the avoidance of doubt, we do not find that the areas of the appellant's evidence where we have reached adverse credibility findings, undermine our assessment of the appellants credibility in relation to the evidence he has given about his father.

(c) Would the appellant already have come to the attention of the authorities? Or would he come to their attention as part of the returns process, or on return?

31. As regards the appellant's participation in the demonstration against the "Main Event" in 2014, it is difficult to assess whether the appellant came to the authorities' attention at the time. We accept that he fled from Ethiopia after participating in the demonstration because he feared being arrested by the authorities. However, we will never know whether, had the appellant remained he would in fact have been arrested and detained. The appellant's evidence that he was "on a list" is entirely speculative. It is possible that photographs may have been taken of the appellant at the demonstration. It is possible that the authorities may have been (or become) aware of the appellant's participation in the "mini media" group at his school (his evidence being that the "mini media" group made placards for the demonstration) but likewise, that is a matter about which we have not heard any evidence and so can only speculate. Consequently, although we accept that the appellant was injured by the authorities during the demonstration, we cannot conclude that as an individual he came to the authorities' attention back in 2014.
32. However, at the hearing, Ms. Akinbolu submitted that should the appellant be returned to Ethiopia, he would come to the attention of the authorities in view of his history of attending demonstrations in Germany, his continued, albeit "low level" support of the OLF in the United Kingdom, and because of his family history of connection with the OLF, specifically his father's history of arrest and detention as a result of his support, or perceived support of the OLF. We agree with Ms. Akinbolu's submission and we find that the appellant would be likely to come to the Ethiopian authorities' attention for the reasons that we set out below.
33. In our view, that the authorities would be likely to look into the appellant, should he be returned to Ethiopia, is supported by the most recent CPIN relating to Ethiopia. Whilst the "CPIN Ethiopia: Tigrayans and the Tigrayan People's Liberation Front, version 1.0, December 2024" is directly concerned with Tigrayans, rather than Oromos, it contains information about returns, which the parties agreed, was of general application to returning Ethiopians. At 19.2.2 the CPIN provides that:

"With respect to treatment of returnees the UKHO FFM expert 2024 'had no experience of this' but noted: 'An ordinary person might be ok, but someone who had a profile, for example someone who had been involved in demonstrations against the government in another country might face problems. Asked if the Ethiopian government monitors the diaspora, the expert noted Ethiopia was a high security state, everything is monitored - and demonstrations in other countries might be monitored too."

34. Then at paragraph 19.2.8 the CPIN states as follows:

"DIS report 2024 noted:

 

Information about the treatment of failed asylum seekers upon their return from Europe was scarce among the sources consulted in Addis Ababa, as the majority of those Ethiopians who return from Europe are migrants, not rejected asylum seekers. A large number of Ethiopian migrants have returned from the Middle East region.

 

'...Bole Airport has the capacity, including staff, to maintain and operate an electronic system in place to collect later about passengers who enter Ethiopia via the airport.

'The degree to which the Ethiopian federal authorities monitor arrivals to Ethiopia varies.

 

According to one source, a person who has been denied asylum in a foreign country would not automatically be of interest to the Ethiopian government upon their return. [...] However, one academic researcher opined that there still might be fear of maltreatment and negative attention among those who return. If the authorities perceive a person as affiliated with any opposition group, the authorities will not detain the person on arrival at Bolle airport unless it is a 'clearly known person'. However, the authorities will 'follow- up' at a later point. The follow up will include questions about the person's identity, place of residence and cohabitants. This follow up may be undertaken in an informal way by a uniformed police officer rather than officially..."

35. In view of the CPIN, we conclude that although the appellant would not be at risk on return solely on the basis of being a failed asylum seeker, and might not be at a risk upon arrival at the airport because he is not a 'clearly known person', there is a real risk that the authorities might 'follow-up' at a later date and that this 'follow-up' would include questions about his identity and his background both in Europe and in Ethiopia.

(d)    If so, would the authorities take an adverse interest? Would they perceive him as having an anti-government agenda?

36. Following on from the above, we must go on to consider what the authorities would find out about the appellant if they did - and we have found that there is a real risk that they will - 'follow-up' on him. In view of Roba, we must also ask ourselves whether there is a real risk that the authorities would regard the appellant as someone who has a "significant history of membership or support of the OLF", which, as explained in paragraph 101 of Roba "should not be read as necessarily 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" which is a "fact sensitive assessment".
37. As regard the appellant's own activities, we find that there is a real possibility that the authorities would become aware that he had participated in OLF demonstrations in Germany in the summer of 2020. We are mindful of what is said in the CPIN quoted above at 19.2.2, that Ethiopia is a high security state which monitors demonstrations abroad by the diaspora. Additionally, in her submissions, Ms. Akinbolu drew our attention to a letter from Amnesty International, dated 9 November 2020, which was relied upon by the Upper Tribunal in Roba and is set out in Annex 4 to the judgment in Roba. The letter explains that:

"While, in our view, individuals being returned to Ethiopia from the UK with a known history of OLF support whether that be an arrest history or otherwise, face a significant risk for that reason alone, individuals who go on to continue their activism with the OLF on return will inevitably face an even greater risk. Likewise, individuals who have engaged in significant recent activism on behalf of the OLF, or other Oromo nationalist groups, while in the UK may also face a greater risk. This would include participation at the large-scale, and at times disorderly, demonstrations that have taken place outside the Ethiopian embassy in London over the summer of 2020. These demonstrations were closely monitored by the Ethiopian authorities, who reportedly raised diplomatic complaints with the British government over what they perceived to be the British police's failure to appropriately protect the Embassy and its staff. The events have also been widely reported in Ethiopian media and videos have been circulated online amongst both supporters and opponents of the OLF's cause.

(Annex 4 at page 51-52 of Roba , in response to 'Question 2').

38. Given that the demonstrations in the summer of 2020 in London were closely monitored by the Ethiopian authorities, we consider it highly likely that demonstrations in other European cities, including Berlin and Munich, were likewise closely monitored by the Ethiopian authorities. As set out above, the appellant has provided photographs picturing him at demonstrations in Germany during the summer of 2020. In some of the photographs he is either draped in, or holding up an OLF flag. These photographs are on his Instagram. In our view, in light of monitoring carried out by the Ethiopian authorities, there is a real possibility that he will already have come to the attention of the Ethiopian authorities as a result of his participation in these demonstrations. Further, there is a real possibility that if he were returned to Ethiopia and the authorities investigated him, they would discover that he had participated in OLF demonstrations in Germany.
39. As regards the appellant's support of the OLF, United Kingdom, in our view this is also something that the authorities may discover if they investigated him. Furthermore, if questioned by the authorities, the appellant cannot be expected to lie about his support of the OLF, United Kingdom. We add that, had the appellant only presented evidence of what is rightly conceded by Ms. Akinbolu to be "low level" support of the OLF in the United Kingdom, we would not have concluded that this was enough to demonstrate that he would face a real risk on return. We are mindful that at paragraph 102 of Roba, the Upper Tribunal stated that "it cannot be said that any level of support for the OLF will give rise to a well-founded fear of persecution". However, what Roba calls for is a "fact sensitive assessment" and relevant to the appellant's case is that he attended demonstrations in Germany in the summer of 2020, as well as the crucial aspect of his case to which we now turn - his family history of OLF support, or perceived support.
40. We conclude that the appellant's family history - specifically his father's - membership, or support, or perceived support of the OLF, would be known to the authorities. We also conclude that this would increase the risk that the appellant - as someone who himself has participated in OLF demonstrations and has supported the OLF in the United Kingdom - would be perceived by the authorities to be an OLF supporter and as having "a significant anti-government agenda". We note that the letter from Amnesty International at Annex 4 of Roba explains that:

"[...] both formal arrest records and institutional as well as personal memory of individual officers play a major role in determining who is perceived as possessing an anti-government agenda and therefore subject to suspicion.

 

This makes a history of arrest for OLF or other Oromo nationalist activity an important risk factor in the current context. It also makes a family history of OLF or other Oromo nationalist activity a significant risk factor. This institutional and personal memory at the local level routinely extends to identifying whole families as supporters of the OLF, based on the political activities of one or two members, or holding the whole family responsible for the activities of one or two members."

(Annex 4 at page 49 of Roba , in response to 'Question 2').

41. In our view, should the Ethiopian authorities investigate the appellant on return, they are likely to become aware of his family history and to associate the appellant's father's history of membership or support of the OLF, with the appellant. The authorities are also likely to become aware of the appellant having attended OLF demonstrations in Germany in the summer of 2020. We find that these factors result in a real risk that the appellant would be regarded by the authorities as having a "significant anti-government agenda". Additionally, there is a real possibility that owing to local knowledge, or by questioning the appellant, that the authorities would also learn that he participated in the demonstration against the "Main Event" in 2014. Further, that the appellant has continued to support the OLF whilst in the United Kingdom, albeit at a low-level, could be perceived as demonstrating a long-standing anti-government agenda, in the context of a family history of OLF support. Looking at the case "in the round" and applying "anxious scrutiny" to the evidence presented in support of the appellant's case, as set against the background materials, we conclude that he has demonstrated that there is a "real risk" that he will be perceived by the authorities as someone with a "significant anti-government agenda". We therefore conclude that he would be at risk of persecution for a Convention reason if he is returned to Ethiopia.
42. The respondent's case, which was put very clearly by Mr. Parvar, was that the appellant's overall lack of credibility meant that we should find the appellant had not shown that he faced a real risk of persecution. Whilst we found that some parts of the appellant's account lacked credibility, we have concluded that the appellant was credible in relation to the core parts of his claim (his participation in demonstrations in 2014 and 2020 and his father's arrest and detention for supporting the OLF). Applying the lower standard of proof to our assessment of his credibility, we are satisfied that there is a real risk that the appellant would be subjected to persecution on account of his political opinion, or imputed political opinion if he were returned to Ethiopia.

(e)     Does HJ (Iran), HT (Cameroon) UKSC 31 , RT (Zimbabwe) [2012] UKSC 38 apply? Would the appellant come to the attention subsequently as a result of the activities that he would carry out, or would wish to carry out?

43. In view of our conclusion that the appellant qualifies for refugee status based on his political opinion, or his imputed political opinion, we do not need to make a separate finding in relation to HJ (Iran), HT (Cameroon) UKSC 31, RT (Zimbabwe) [2012] UKSC 38. However, for completeness, we would have found as a matter of fact that should the appellant be returned to Ethiopia, that his activity would continue on a low-level and that he would be likely to attend major OLF demonstrations, in view of his participation in demonstrations in 2014 in Ethiopia, in 2020 in Germany and given his support of OLF, United Kingdom.

(f)      Article 8. Whether there would be serious obstacles to his re-integration in Ethiopia? Whether it would be disproportionate to his Article 8 rights to return the appellant to Ethiopia?

44. As regards Article 8, we have considered the submissions made by both parties. We agree with Mr. Parvar's submissions on behalf of the respondent in relation to Article 8. In our view, the appellant would be able to re-integrate into Ethiopian society if he were returned to Ethiopia. He speaks Oromo and he has maintained an interest in Oromo culture and the political movement, as demonstrated by his membership of the OLF, United Kingdom. We do not consider that it would be disproportionate to return him to Ethiopia on Article 8 grounds. He has no family life in the United Kingdom. Although he has a private life, it is of a limited duration, having only been in the United Kingdom for the last three years and during which time he has studied and made friendships. We would not allow this appeal based on Article 8.

Notice of Decision

45.    We allow the appeal on the ground that the appellant's removal from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.

 

Kathryn Howarth

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

21 February 2025

Annex

 

A black and white emblem with lions and unicorns AI-generated content may be incorrect.

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004080
	First-tier Tribunal No: PA/54493/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

.......................................

 

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

DEPUTY UPPER TRIBUNAL JUDGE WELSH

 

 

Between

 

SH

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Akinbolu of Counsel

For the Respondent: Mr Parvar, Senior Home Office Presenting Officer

 

Heard at Field House on 6 November 2024

 

 

DECISION AND REASONS

Anonymity Order:

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 the Appellant. Failure to comply with this order could amount to a contempt of court.

Introduction

1.              This is an appeal against a decision of First-tier Tribunal Judge E M Field ("the Judge"), promulgated on 8 July 2024. By that decision, the Judge dismissed the Appellant's appeal against the decision of the Respondent to refuse his protection and human rights claim.

2.              We continue the anonymity order made below because the potential risk to the Appellant if his identity and circumstances are unknown outweighs the public interest in open justice.

Factual background

3.              The Appellant is an Ethiopian national of Oromo ethnicity, born in 2004. He left Ethiopia when he was 10 years old, travelling to Germany where he remained until his arrival in the United Kingdom ("UK") on 3 June 2021.

4.              The basis of his protection claim is that he faces a real risk of persecution or serious harm on the grounds of his political opinion/imputed political opinion. In summary, the factual basis of his claim is that, on return to Ethiopia, the authorities will perceive him to be a supporter of the Oromo Liberation Front ("OLF"), that perception arising from the following combination of factors:

(1)     his attendance at a demonstration in Ethiopia in April 2014;

(2)     his father's connection with OLF; and

(3)     his sur place activities in Germany.

The decision of the Judge

5.              Having made findings of fact in relation to the three strands of the Appellant's protection claim, the Judge then considered those findings in the context of the Country Guidance case of AAR (OLF - MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC) before concluding that the Appellant had not demonstrated that there is a real risk that he will be perceived by the authorities as possessing an anti-government agenda [30].

Grounds of appeal and grant of permission

6.              In summary, the grounds plead that the Judge erred as follows:

(1)     The Judge misapplied AAR and/or reached an irrational conclusion. If the guidance had been applied properly then, on the findings of fact made by the Judge, the Appellant would have been found to be at risk by reason of the authorities perceiving him to have significant history of OLF support [ground 1(i)].

(2)     In concluding that the Appellant's social media activity was unlikely to have come to the attention of the authorities, the Judge failed to take into account the country evidence that demonstrated that the State closely monitors the activities of the diaspora [ground 1(ii)].

(3)     In concluding that the evidence did not demonstrate that the Appellant's father was perceived by the authorities to be someone possessing an anti-government agenda, the Judge has misapplied AAR and/or reached an irrational conclusion [ground 2].

7.              Permission to appeal was granted, on 2 September 2024, by First-tier Tribunal Judge Mills. The grounds upon which permission was granted were not restricted.

Upper Tribunal proceedings

8.              We heard oral submissions from both advocates, to whom we are grateful. During the course of this decision, we address the points they made.

Discussion and conclusion

9.              For the reasons set out below, we conclude that the Judge has erred as pleaded in both grounds of appeal.

Ground 2

10.          We address ground 2 first because, if the Judge has erred in her finding in relation to the Appellant's father's political profile, this will inform our view on the merits of ground 1.

11.          At [26] the Judge found as follows:

It is submitted that the Appellant's father was a supporter of the OLF who has previously been arrested. At interview, when asked whether any of his family are part of a political group, the Appellant explained that his father "was accused of being part of the OLF, he used to be detained now and again, they just suspected him" (AIR 46). When asked about incidents between the authorities and his family, the Appellant explained that his father "was being following (sic) and they were harassing him" (AIR 59). At interview, the Appellant did not go as far as to state that his father was actually a supporter of the OLF but in his witness statement he now states that his father "had been jailed several times for supporting the OLF". No further details have been provided but by the Appellant's own account at interview, his father was suspected of OLF involvement only, there is no cogent evidence that his father was an active opponent of the government. The Appellant has further been consistent that his father was a supporter rather than a member of the OLF. I find that there is insufficient cogent evidence before me to indicate that his father was perceived as possessing an anti-government agenda or that he actively participated in any political activities. In this regard, I note that by his own account, the Appellant does not assert that either the Appellant's father or any other member of his family was involved in or participated in the demonstration in 2014 or any other demonstrations or political activities. There has been no claim by the Appellant that his father was targeted was subject to adverse attention from the authorities in the aftermath of the 2014 demonstration. I find this to be consistent with a lack of established suspicion of the family.

12.          Ms Akinbolu submitted that the Judge "appears to accept that the Appellant's father had been a supporter of the OLF who had been detained on multiple occasions". Given such a finding, the conclusion that the Appellant's father was not perceived to possess an anti-government agenda is irrational when considered in the context of AAR. Further, the Judge has taken into account an irrelevant factor, namely the absence of any evidence that the Appellant's family were the subject of any adverse attention following the 2014 demonstration. There was no such evidence because the Appellant has had no contact with his family since leaving Ethiopia in the aftermath of the 2014 demonstration.

13.          Mr Parvar submitted that the Judge did not make any findings favourable to the Appellant in relation to his father's activities. At [26], the Judge sets out the Appellant's various accounts about his father but then concludes that his father was neither an active opponent of the State nor perceived by the State to be an opponent. It is implicit from this finding that the Judge rejected the Appellant's account that his father had been detained. This finding was supported by the absence of evidence that the Appellant's family had been targeted after the 2014 demonstration.

14.          In our view whilst the finding at [26] is clear, it is either irrational or inadequately reasoned. If If the Judge was accepting the Appellant's account, either in whole or part, then the conclusion was undoubtedly irrational. If Mr Parver is right, and [26] should be read as the Judge setting out the Appellant's account before reaching a conclusion, then there is a complete absence of reasoning and a lack of clarity as to which parts of the Appellant's account have been accepted and which parts rejected.

15.          There may well be circumstances when the reason for a conclusion is so obvious that it need not be stated but this is not such a case. For example, if the parties are meant to infer that the Appellant's evidence has been rejected because he has given inconsistent accounts, then the inconsistency needs to be identified precisely and an explanation given as to why the inconsistency is one that adversely affects the judge's view of the Appellant's credibility or reliability. We remind ourselves that the evidence before the Judge was that the Appellant left Ethiopia when he was 10 years old. Consequently, if he has given a truthful account, then his understanding of what happened to his father was formed when he was a child. In these circumstances, he might well use the words "harassed", "detained" and "jailed" interchangeably

16.          This was an important plank of the Appellant's case and it called for clear findings as to which aspects of the Appellant's account were accepted or rejected and clear reasons as to why they were accepted or rejected.

17.          The error is compounded by the Judge taken into account what we consider to be conclusions on the evidence that were not open to the Judge. Ms Akinbolu is correct in her submission that the evidence before the Judge was that the Appellant had not spoken to his family - the evidence was that he last spoke to them when he was in Libya on route to Germany (pdf 416). It was not suggested to us that it put to the Appellant that he was lying about having no contact with his family in order to avoid having to answer difficult questions about any on-going adverse interest by the State. In these circumstances, it was not open to the Judge to find support for her conclusion about the Appellant's father's political activity in the absence of evidence of any on-going adverse interest.

18.          We conclude, for the following reasons, that the error is material. In AAR, the Upper Tribunal stated:

Those who have a significant history, known to the authorities, of OLF membership or support, or perceived by the authorities to have such significant history will in general be a real risk of persecution by the authorities. [103(2)]

 

'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" [103(3)].

19.          A finding that the Appellant's father had been detained as a result of a perception that he was a supporter of OLF is capable of being relevant to the fact sensitive assessment of the likelihood that the Appellant would be perceived to be a supporter of OLF. Consequently, the error in relation to the assessment of whether the State perceived the Appellant's father to be a political opponent is a material error.

Ground 1

20.          The substance of the complaint in this ground is the application of AAR to the Judge's findings of fact and it follows, from our conclusion in relation to ground 2, that the Judge erred as pleaded in ground 1.

21.          We note that within ground 1 a discrete point was raised in relation to the Judge's assessment of the likelihood of the social media postings of the Appellant coming to the attention of the authorities. We do not need to determine this issue because this finding of fact cannot stand given the error in relation to the Judge's assessment of the Appellant's father's profile: if the Appellant's father is found to be somebody who has been detained on suspicion of OLF support, then this is capable of affecting the assessment of the likelihood of the State being aware of any sur place activities by the Appellant.

Notice of Decision

22.           The decision of the First-tier Tribunal involved the making of a material error of law and we set aside the decision.

Remaking decision

23.          We conclude that the appropriate forum for remaking is the Upper Tribunal because the necessary findings of fact are broadly limited to the nature and extent of the Appellant's father's perceived connection to OLF. In reaching this decision, we apply paragraph 7.2 of the Senior President's Practice Statement and take into account the submissions of both advocates.

24.          We preserve the following finding of fact: that the Appellant participated in a demonstration against the Master Plan in April 2014 [19].

Directions

25.          The following directions apply to the future conduct of this appeal:

(1)             The Resumed Hearing will be listed at Field House (before UTJ Landes) with a time estimate of 4 hours.

(2)             The Appellant has permission to rely on evidence that was not before the First-tier Tribunal.

(3)             The Appellant shall notify the Upper Tribunal and the Respondent within 14 days of the date this decision is sent whether any witnesses are to be called and, if so, must identify the witnesses and confirm whether they need the assistance of an interpreter.

(4)             The parties shall file and serve any up-to-date evidence they wish to rely on at least 21 days before the next hearing.

(5)             The Appellant shall file and serve a skeleton argument no later than 21 days before the hearing.

(6)             The Respondent shall file and serve a skeleton argument no later than 7 days before the hearing.

 

C E Welsh

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

7 December 2024