H-LP-V2
Appeal Number :HX04468-2002
                            EB (Risk –Return- Ethiopian- Eritrea) Eritrea  [2002] UKIAT 06317

IMMIGRATION APPEAL TRIBUNAL

Heard at : Field House	Determination Promulgated	
on :  2nd October 2002		
Dictated : 3rd October 2002	29/01/2003.	

Before:

Mr H J E Latter (Chairman) 
Mr N Kumar JP
Mrs M L Roe

between
Eden BERHE
Appellant

and

The Secretary of State for the Home Department

Respondent

DETERMINATION AND REASONS

Appearances

For the Appellant:			Ms M Kalsi of Counsel, instructed by S Osman Solicitors
For the Respondent:		Mr I Graham, Home Office Presenting Officer

1. 	This is an appeal by Eden Berhe, a citizen of Ethiopia, born on 3rd November 1975, against the determination of an Adjudicator (Ms M J Pirotta) who dismissed her appeal against the Respondent’s decision giving directions for her removal following the refusal of her claim for asylum.

2.	The Adjudicator accepted that the Appellant was a citizen of Ethiopia.  Her father was of Eritrean ethnic origin and her mother Ethiopian.  She was born and raised in Ethiopia and had no connections with Eritrea.  She was not able to tell the Adjudicator anything about her father’s history such as his date of birth, place of origin or about any other family members living in Eritrea.  She was educated to secondary school level and then assisted her father in his business from July 1995 until 2000.  She says that her family were detained in April 2000 on suspicion of EPLF sympathies.  She was beaten and raped.  In October 2000 her mother died from the injuries sustained during the detention.  The Appellant had become pregnant following the rapes and gave birth to a baby boy in February 2001 but he died within a few weeks.  The Appellant left Ethiopia having been forced to have sexual intercourse with a man who helped her leave.  She remained in Kenya for a few weeks before coming to the United Kingdom.

3.	She had become pregnant again and wished for a termination but after counselling chose to keep the child.  She was afraid that if she returned to Ethiopia she would be arrested and tortured again because of her mixed ethnicity.  She feared that her human rights would be violated as she had not kept to the conditions of her release and would be suspected by the authorities.  She told the Adjudicator that she could not prove her Eritrean ethnicity as she had no documents or knowledge of her family's history so she would be stateless and unable to support her claim for Eritrean residence.  She had no direct connection with Eritrea and had never lived or visited there.  She had no knowledge of the whereabouts of any relations.

4.	The Adjudicator has set out her findings in paragraphs 28-35 of her determination.  She found the Appellant to be a credible witness and in the light of her evidence of the way she had been treated in Ethiopia, the Adjudicator was satisfied to the low threshold of proof required that she had a well-founded fear of persecution there.  She noted that the Appellant had throughout her application for asylum described herself as Eritrean.  This explains why on the appeal papers from the Home Office the Appellant’s nationality is given as Eritrean.  In the reasons for refusal letter dated 23rd August 2001 the Secretary of State noted that the Appellant’s problems in Ethiopia were all based on the fact that she was considered to be Eritrean.  He commented in paragraph 5 that he was aware that people are considered to be Eritrean by birth if they are born in Eritrea or abroad if their father or mother is of Eritrean origin.  In the light of this he considered that it would be possible to return the Appellant to Eritrea rather than to Ethiopia.

5.	The Adjudicator went on in her determination to find that the Appellant thinks of herself as Eritrean and this indicates she has a greater connection with Eritrea than she was prepared to acknowledge at the hearing.  Although the Adjudicator was satisfied that the Appellant’s removal to Ethiopia would cause the United Kingdom to be in breach of its obligations under the Refugee Convention, the removal directions were to Eritrea and the Appellant would not be at risk of persecution there nor would there be a risk of treatment contrary to Article 3.  In these circumstances she dismissed the appeal.

6.	In substance the grounds of appeal argue that there is no adequate evidence to show that the Appellant is a citizen of Eritrea.  It is unlikely that she would be able to acquire Eritrean citizenship.  It would be wrong to remove her to Eritrea and the Secretary of State would have no power to do so.  If she were removed there, she was at risk of being deported to Ethiopia. 

7.	Ms Kalsi adopted these grounds in her submissions.  The evidence showed that the Appellant would not be able to obtain Eritrean citizenship: see paragraph 5.69 of the CIPU Eritrea Country Assessment April 2002.  The Appellant’s father had disappeared.  It was the Appellant’s understanding that her father was born in 1950 in Asmara.  She  would not be able to verify her claim for Eritrean citizenship.

8.	Mr Graham submitted that there was no reason to believe that the Appellant would not be able to acquire Eritrean citizenship even if she were not presently entitled to it.  There was no reason to believe that if returned to Eritrea that she would be deported to Ethiopia.  The evidence showed that forcible deportations had ceased and in any event the Eritrean authorities would not deport someone who was of Eritrean ethnic origin.

9.	The Secretary of State has made the removal directions for Eritrea because he considers the Appellant to be Eritrean: see paragraphs 5 and 9 of the Reasons for Refusal Letter.  If the Appellant is a citizen or national of Eritrea the Secretary of State is entitled to return her there: paragraph 8(1)(c)(i) of Schedule 2 of the 1971 Act.  So far as the Appellant’s claim for refugee status is concerned the Appellant will only be entitled to asylum if she is unable to look to her country or countries of nationality for protection.  It is accepted that the Appellant is a citizen of Ethiopia and is at risk of persecution there.  If she is a citizen of Eritrea, she would have to show that she had a well-founded fear of persecution in Eritrea before she is entitled to be recognised as a refugee.

10.	The initial issue therefore is whether the Appellant is a citizen of Eritrea.  The evidence before the Tribunal relating to Eritrean citizenship is set out at paragraph 5.69 of the CIPU Country Assessment.  This provides that people are Eritrean by birth if they are born in Eritrea or if born abroad their father or mother is of Eritrean origin which is defined as meaning any person resident in Eritrea in 1933.  Through her Counsel the Appellant told the Tribunal that her father was born in 1950 in Asmara.  The Appellant’s date of birth is 1975 and therefore it is not unlikely that her father was born in 1950.  It is certainly unlikely that he was born before 1933 and would be able to comply with the requirement to show residence in 1933.  On the basis of the evidence before the Tribunal, we are not satisfied that the Appellant is an Eritrean citizen.  It may be that she is entitled to apply for citizenship but that is an entirely different matter.  In his submissions Mr Graham raised the issue of whether it would be reasonable to expect the Appellant to apply for citizenship of Eritrea.  In the Convention of the Status of Stateless Persons (1954) it is provided that a stateless person means a person who is not considered as a national by any state under the operation of its law.  In these circumstances an individual can be regarded as under an obligation to make an application to a state which might consider him to be its national.  However, the Appellant is not asserting that she is stateless.  It is accepted that she is a citizen of Ethiopia but removal to Eritrea is proposed on the basis that the Appellant is in fact a citizen of Eritrea.  The evidence does not satisfy the Tribunal that this is the case.

11.	It follows that the Appellant is entitled to asylum within the provisions of Article 1(A)(2).  The Tribunal agree with the Adjudicator that there is no reason to believe that if the Appellant were to be admitted to Eritrea that she would either be at risk of persecution there or at risk of being returned to Ethiopia.  However, the Respondent fails to satisfy the Tribunal that there is any power to return the Appellant to Eritrea in the absence of clear evidence that she would be accepted by the Eritrean authorities.  The Tribunal are not satisfied that Eritrea is a country of which the Appellant is a national or citizen.  She did not embark from Eritrea for the United Kingdom.  She does not hold an Eritrean passport or document of identity.  On the evidence before us there is no reason to believe that she would be admitted to Eritrea.

12.	For these reasons, this appeal is allowed.

H J E LATTER
VICE PRESIDENT