HB (Ethiopia EDP/UEDP members) Ethiopia CG [2004] UKIAT 00235
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 12 July 2004
Date Determination notified: 25 August 2004
Before
Dr H. H. Storey (Vice President)
Mr Andrew Jordan (Vice President)
Mr C. H. Bennett
Between
| HB |
APPELLANT |
| and |
|
| Secretary of State for the Home
Department |
RESPONDENT |
For the Appellant: Mr P. Lewis, Counsel instructed by Otchere
Collisons, Solicitors
For the Respondent: Mr A. Sheikh, Home Office Presenting
Officer
DETERMINATION AND REASONS
- The Appellant is a citizen of the Ethiopia who
appeals against the determination of an Adjudicator, Ms Linda Freestone,
promulgated on 6 January 2004, dismissing the Appellant's appeal against the
decision of the Secretary of State to refuse both his asylum and human rights
claims.
- The Appellant was born on 27 July 1981 and is now 22
years old. He claimed to have entered the United Kingdom on 16 July 2003 using
false documents. He claimed asylum on 17 July 2003. The Secretary of State's
decision to refuse his asylum claim and to issue directions for his removal to
Ethiopia was made on 15 September 2003. This gave rise to a right of appeal
under section 82(1) of the Nationality, Immigration and Asylum Act 2002. The
Appellant appealed on 25 September 2003.
- In a statement prepared as part of his application
dated 26 July 2003, the Appellant stated that he was born and bred in Gonder,
Ethiopia, some 700 km from Addis Ababa. His father, a supporter of the Derg
regime, had been killed by forces of the EPRDF in 1990. In 1993, whilst at
college studying clinical nursing, the Appellant became involved with the
Ethiopian Democratic Party (EDP), although he did not become an "official
member" until February 2001. [See E2] The Appellant stated that he was an
active participant of the party, contributing financially to it and taking
part in meetings and demonstrations as well as in recruitment. In April 2001,
Gonder College boycotted classes in support of the student demonstrations
taking place at the University in Addis Ababa. As a result, his college was
closed for a week. The Appellant said that he was the only member of the EDP
at his college, although all of the students participated in the boycott.
- The Appellant claimed that he was arrested on 28
April 2001 in Gonder and accused of organising the demonstrations on behalf of
the EDP. He stated that he was released on 23 July 2001, some three months
later, on the basis that he signed a document promising not to continue his
involvement with EDP. He claimed that he was released on bail. During the
course of his detention, the Appellant said that he was ill treated.
- Almost two years passed. On 11 May 2003, the
Appellant claimed that the police were looking for him. He was not at home and
the information is derived from what his mother told him to the effect that
they wanted to arrest him because of their suspicions that he was still
actively involved with the EDP. The Appellant contacted his uncle who made
arrangements for the Appellant's departure from Ethiopia.
- When dealing with his arrest and detention in April
2001, the Appellant stated that he was one of 13 people arrested in Gonder and
that he was unaware of whether his fellow detainees were subsequently
released. See his answer to question 68 of the interview. In his answer to the
following question, however, the Appellant stated that they were not released
because, had they been, he would have known. The Appellant was asked why the
authorities waited until mid 2003 before seeking to re-arrest him. He
answered:
"I know they are after me and I was doing my political
activities slowly and cautiously. Maybe they were trying to collect enough
evidence."
The Adjudicator records in paragraph 21 of the determination the Appellant
explaining in evidence that, after his release, his activities were carried
out in a clandestine manner. He told the Adjudicator that he attended meetings
on a monthly basis but made sure no one was following him. In paragraph 22 of
a statement prepared by the Appellant and dated 3 November 2003, the
Appellant's account of his involvement after his release in July 2001 was
described in these terse terms:
"I continued to participate despite the governments threats. I
have got a commitment to my nation and my people and I was ready to expose
the government about its political incorrectness and about its
Administration."
It is difficult for the Tribunal to deduce from this passage what the
Appellant was actually doing.
- Since his arrival in the United Kingdom, the
Appellant has participated in the activities of the EDP, now the United
Ethiopian Democratic Party, (UEDP). In the Country Report for Ethiopia, dated
April 2004, prepared by CIPU, the UEDP is referred to on page 68. The party
was formed in July 2003, at about the same time as the Appellant left
Ethiopia, and was an amalgamation of the EDP and another Ethiopian party, the
EDUP. The current head of the UEDP is Dr Gebeyehu. It is one of a number of
political parties in Ethiopia. A full list is set out at Annex B of the CIPU
report (page 65). In the May/August elections of 2000, prior to the formation
of the UEDP, the EDP managed to gain two seats in Parliament. The Oromo
People's Democratic Organisation polled 178 seats. The Amhara National
Democratic Movement polled 134. These two parties represent over one half
(312) of the 546 seats in Parliament. The EPRDF managed 19 seats.
- The state of the opposition parties is referred to
in paragraph 5.26 of CIPU, derived from an IRIN news report of August 2003 to
the effect that 15 Ethiopian opposition parties had formed what was called a
"rainbow coalition" to challenge the political hold of the current government.
The United Ethiopian Democratic Forces became the largest coalition opposition
within the country. Among the other main parties is the UEDP. The UEDP is
specifically referred to in paragraphs 5.40 to 5.43. It is said that the party
has some 20,000 members.
- In paragraph 35 of the determination, the
Adjudicator accepted the Appellant's account of his arrest during the student
revolt in 2001. She found it implausible, however, that, having been released
in July 2001, the authorities would show any interest in the Appellant two
years later in May 2003. Yet it was this incident, according to the Appellant,
that prompted his departure from Ethiopia. The Adjudicator recorded that the
Appellant did not provide any evidence of specific incidents of activity that
would have brought him to the attention of the authorities, as he claims, in
mid-2003. Accordingly, the Adjudicator concluded that the Appellant's
activities in Ethiopia were not such as to establish the reasonable likelihood
of persecution on return or a violation of his human rights. In addition, the
Adjudicator considered the Appellant's involvement in the UEDP in the United
Kingdom and concluded that this, too, would not engage either Convention.
- The Appellant appealed. In the grounds of appeal,
the Appellant relies upon the positive findings of fact made by the
Adjudicator as to the Appellant's involvement in the demonstrations of April
2001. In paragraph 1(vi) of the grounds, it is said that the Adjudicator
accepted the Appellant's account that in May 2003 he was informed by his
mother that the police were looking for him on account of his political
activities. This is simply incorrect. The Tribunal has considered the
Adjudicator's findings and it is apparent that the Adjudicator rejected the
totality of the Appellant's account that the authorities showed any interest
in the Appellant in May 2003, some two years after his arrest in 2001. In our
judgment, this was a substantial misstatement of the Adjudicator's findings
and one which may have influenced the grant of permission given by the Vice
President.
- It was submitted by Mr Lewis on behalf of the
Appellant that the Appellant remained and remains of continuing interest to
the authorities. Given that he had been detained, tortured and told not to
participate further, he submitted the Appellant was not simply an ordinary
member of the UEDP. In support of his submissions he relied upon a list of
essential reading. This may be summarised in the sub-headings provided by him:
Human Rights Violations. According to the US State
Department Report, 2003, the government continued to arrest and detain
persons arbitrarily, particularly those suspected of sympathising with or
being members of the OLF. There are credible reports of widespread human
rights abuses.
Treatment of Political Opposition. On 19 April 2001, one
EDP member was shot and killed by security forces at his home and "about 40
EDP members were arrested", including the Secretary-General and one
executive member. This was part of the student protests. Information on the
EDP's website indicated that in April 2002, 23 EDP members were arrested and
"some were released after they were told they will be shot in their heads if
they organise any opposition."
Restriction on Human Rights Reporting. The government
restricted freedom of the press and continued to harass, threaten, arrest
and detain journalists.
Impunity of Security Forces. Security forces guilty of
Human Rights violations were not held responsible by the
government.
Absence of Judicial Oversight. Although nominally
independent, the judicial process is subject to political pressure. The
judicial process is flawed.
- Mr Lewis sought leave to adduce fresh evidence. He
told the Tribunal that he had been informed by staff from the Tribunal on the
Wednesday before the hearing that the appeal was being considered as a country
guidance case. As a result, his Instructing Solicitors were able to seek
funding for an expert report to assist the Tribunal. The report dated 9 July
2004 has been prepared by Dr JR Campbell of SOAS, a Senior Lecturer at the
Department of Sociology and Anthropology.
- In paragraph 68 of the judgment of the Court of
Appeal in E and R [2004] EWCA Civ 49, it was noted that an appellate court has a discretion to admit new
evidence (CPR 52.11(2)), but it is normally exercised subject to Ladd v
Marshall principles, raising in particular the issue whether the material
could and should have been made available before the decision. In paragraph
88, the Court extracted three principles from its earlier decision in Khan
v Secretary of State [2003] EWCA Civ 530, the last of which was that:
"c It illustrates the intrinsic difficulty in many asylum
cases of obtaining reliable evidence of the facts giving rise to the fear
of persecution, and the need for some flexibility in the application of
Ladd v Marshall principles. "
The Court concluded:
"92. In relation to the role of the IAT, we have concluded
a. The Tribunal remained seized of the appeal, and therefore
able to take account of new evidence, up until the time when the decision
was formally notified to the parties;
b. Following the decision, when it was considering the
applications for leave to appeal to this Court, it had a discretion to
direct a re-hearing; this power was not dependent on its finding an
arguable error of law in its original decision.
c. However, in exercising such discretion, the principle of
finality would be important. To justify reopening the case, the IAT would
normally need to be satisfied that there was a risk of serious injustice,
because of something which had gone wrong at the hearing, or some
important evidence which had been overlooked; and in considering whether
to admit new evidence, it should be guided by Ladd v Marshall
principles, subject to any exceptional factors."
- Applying these principles, we were satisfied that
the report should be admitted. Its late production is explained by the late
designation of the appeal as a potential guideline case. It is at least
arguable that funding would not have been permitted unless and until that
designation was made known.
- The principal discussion in the report concerns
the Appellant's involvement with the UEDP in London:
"A further problem exists for the Appellant. As an active member
of the London branch of the UEDP - an electoral alliance which the EDP
entered into several years ago - his activities, and those of the UEDP will
have been monitored by a Political Councillor at the Ethiopian Embassy in
London. Embassy officials actively cultivate links with resident Ethiopians
in England and actively monitor their political activities. Until recently
this activity was co-ordinated by a Major in the Federal Police who was
appointed to the Embassy between 1998-2000.
In the refusal letter, an assumption is made (paragraph 9) that
because the EDP is a registered political party, that membership in it is
protected by the Constitution. I would point out that even a cursory
examination of human rights reports makes it clear that rank and file
members and supporters (really, those suspected of supporting a party) are
routinely harassed, arrested and detained for varying periods of time
without being charged. Furthermore, a routine outcome of detention is
mistreatment/torture."
- The Adjudicator found the Appellant's account to
be broadly consistent. See paragraph 34 of the determination. However, she
expressed one significant reservation. She did not find it plausible that, two
years after the Appellant's release, he would be approached by the
authorities. In our view, the Adjudicator was fully justified in concluding
that there was no credible evidence of any specific incident in the period
2001 to 2003. The Appellant's own statement, also found at E4, is to the
effect that he continued to participate in the EDP despite government threats
but he failed to identify any activities likely to have caused renewed
interest. In any event, according to his interview, his activities were being
carried out cautiously [question 71]. The Adjudicator recorded in paragraph 21
of the determination that everything he did after his release was done in a
clandestine manner. In which case it is unclear on what basis he considered he
was kept under surveillance.
- The only reason provided by the Appellant for his
leaving Ethiopia is contained in his statement:
"My mother informed me that they wanted to arrest me because
they suspect I was still actively involved with the EDP."
However, no information is provided as to how the Appellant's mother came
to know of the intention of the authorities or their motivation. In our view,
the Adjudicator was not obliged to attach weight to such tenuous evidence.
- Such interest as the authorities may have shown in
the Appellant in May 2003 must be assessed in the light of the events of 2001.
His arrest arose in the context of student demonstrations involving a boycott
of the college by all the students. He was one of several arrested. We
consider that it was open to the Adjudicator to conclude that the Appellant's
evidence failed to provide any clear reason why the authorities would wish to
approach him two years later.
- What are we to make of the Adjudicator's
assessment of the EDP/UEDP in the light of the further materials now before
us? Such involvement as the Appellant had with the EDP/UEDP should be
considered in the knowledge that it is a legal party, that it has participated
in elections and, in May 2000, won two seats in Addis Ababa. The April 2004
CIPU deals with the two parties in these terms:
Ethiopian Democratic Party
5.39 Political Parties of the World, updated January 2002 stated
that, "The EDP was formed in 1998 following a split in the All Amhara
People's Organization [AAPO]. It fielded 15 candidates for the federal House
of People's Representatives in May 2000, winning two seats in Addis Ababa.
Its policies included land reforms to benefit peasant farmers. EDP party
members (including candidates in current local government elections) were
among those targeted by the security forces in May 2001 in a campaign
against 'political activists' following the violent suppression of student
demonstrations in Addis Ababa".
United Ethiopian Democratic Party
5.40 IRIN news observed that the EDP has since joined forces
with the Ethiopian Democratic Union Party to form the United Ethiopian
Democratic Party (UEDP). Its leader Dr Admasu Gebeyehu said it had some
20,000 members and described it as 'one of the largest' political parties in
the country.
5.41 The US State Department Human Rights Report 2003 noted
that, "On September 30 [2003], six policemen removed the national flag from
the office of the United Ethiopia Democratic Party (UEDP) in Masha Woreda,
Sheka Zone, Southern Region, and detained UEDP representative Berhanu Hailu
in Masha police prison for 3 weeks. He was released after posting $580
(5,000 birr)".
5.42 The US State Department Human Rights Report 2003 noted
that, "Some opposition political parties charged the Government with
deliberately obstructing their attempts to hold public meetings. Local
government officials granted the UEDP permission to conduct a conference in
Mekelle on June 29 [2003]; however, on the day of the conference, UEDP
officials were told that the regional government needed the hall for an
urgent meeting, and UEDP was denied its meeting venue".
5.43 The US report further noted that, "Two teachers in Masha
Woreda were dismissed [from their jobs] for being members of UEDP".
- It is apparent from these passages that EDP party
members were targeted by the security forces in May 2001 following the
suppression of the student demonstrations in Addis Ababa. Thereafter, as
paragraphs 5.41 and 5.43 make clear, the incidents of harassment against UEDP
members were specific events: in one case, following the removal of the
national flag from the UEDP office in Mashe Woreda; in the other (in the same
location), the dismissal of two teachers who were members of the party. These
two events do not reveal widespread or routine harassment against the UEDP.
- We were also referred to the documents at page 203
of the bundle from the Research Directorate, Immigration and Refugee Board,
Ottawa, dated 27 August 2002. Amongst other things, this records the arrest
and detention for 50 days of 4 EDP members, one of whom was rearrested. The
arrests were reportedly because opposition parties had been implicated in
trying to destabilise the government. Further, according to Human Rights
Watch, of 100 or so EDP members arrested during the course of 2001, 90 were
released without charge and four others were released on bail. The seven
others, however, were still in custody without charge in November 2001.
- The Adjudicator's overall assessment is set out in
paragraph 36 of his determination:
"I do not find that the objective evidence supports the
Appellant's claim that grass roots members of the UEDP are now being
routinely harassed and targeted by the authorities. The only objective
evidence in this respect that I have been referred to is at paragraph 5.20
of the CIPU report that states that there had been credible reports of
violence against opposition members. This is a very general risk to all
members of opposition parties. I do not find that this establishes that the
Appellant with his particular profile, attending monthly meetings of the EDP
clandestinely and giving financial support, is a real risk of
persecution."
- In our judgment, even in the light of more recent
materials, the Adjudicator's conclusion remains sustainable insofar as
conditions in Ethiopia are concerned.
- Dr Campbell in his recent report of 9 July 2004
states on page 2:
"The Appellant describes a pattern of arbitrary arrest and
detention in which the focus of the authorities concern his membership in
the EDP; the Appellant's political activities would have been known to
security officials. There are numerous cases of security officials
repeatedly visiting the home of a "suspect" at which time they harass and
threaten (sometimes they also beat and arrest) the person and his/her
family. Thousands of supporters of registered opposition political parties
had been picked up, detained without charge, and released on warning/ bail.
Frequently officials return to harass former detainees and their families,
making life extremely difficult for such persons (in addition to detention,
salaries and bank accounts are frozen, and individuals may be dismissed from
government jobs, etc)."
- We do not find that we can attach significant
weight to Dr Campbell's report. Principally, that is because the description
of the Appellant's history given to Dr Campbell does not accord with the
Appellant's own account. The Appellant speaks of a single arrest and detention
following a student demonstration. Thus it is improper to describe his case as
evincing "a pattern of arbitrary arrest and detention in which the focus of
the authorities concerns his membership in the EDP." Furthermore, the
Appellant's claim that his activities were carried out in a clandestine manner
is contrary to Dr Campbell's note that the Appellant's political activities
would have been known to security officials. Mr Lewis informed us that he
advised his Instructing Solicitors to supply Dr Campbell with the Appellant's
statement, the refusal letter and the Adjudicator's determination. None of
these documents refers to a pattern of arbitrary arrest and detention of this
Appellant. Furthermore, whilst over the years, a headcount of those supporters
of registered opposition parties detained without charge may run into
thousands, the specific incidents of harassment involving members of the
EDP/UEDP do not establish widespread abuses.
- We now turn to whether the risk faced by the
Appellant is altered, substantially or at all, by reason of his involvement
with the UEDP in London. At page 10 of the Appellant's bundle, we find a
letter dated 5 November 2003 from Mr Lemma, the Chairman of the Support
Committee of the UEDP in London. This confirms that the Appellant has been a
member of the Support Committee in the United Kingdom since August 2003. It
continues:
"During this time, he has been actively involved in the
activities of the Support Committee by discharging his responsibilities by
way of attending meetings and paying his membership
contribution."
- The Chairman of the Support Committee, quite
properly, does not seek to express an opinion on whether the Appellant is at
risk in the United Kingdom or on return to Ethiopia.
- We have already set out Dr Campbell's assessment
of the risk faced by those involved with the UEDP in London in paragraph 15,
above. On the basis of his assessment, we are prepared to accept that the
Ethiopian Embassy in London monitors the political activities of Ethiopian
citizens resident in England. However, we are unable to accept that this means
that the Embassy's officials are capable of monitoring the activity of every
Ethiopian citizen. Simple constraints of resources must inevitably mean that
the Embassy will concentrate upon the more important or the most active
opposition figures. It cannot be inferred that the Appellant, described by the
organisation itself as "discharging his responsibilities by way of attending
meetings and paying his membership contribution" is an obvious target for
surveillance. There are also, of course, significant difficulties in an
Embassy official identifying an individual, even if his photograph is taken.
Short of having a database with which the photograph can be compared,
surveillance by the Embassy is unlikely to lead to identification without
further information being supplied. Bearing in mind the Appellant's relatively
minor role in the UEDP in London, the Tribunal is not satisfied that the fresh
material establishes that the Appellant's activities in London will place him
at risk on return. We consider that it is speculative to say that he is
monitored in the way suggested by Dr Campbell:
"As an active member of the London branch of the UEDP… his
activities… will have been monitored by a Political Councillor at the
Ethiopian Embassy in London."
- We have also considered the statement made by Dr
Campbell on pages 2/3 of his report to the effect that all individuals who are
repatriated to Ethiopia are detained and questioned at the port of entry. He
goes on to say that if the authorities determine the person left the country
illegally i.e. without a valid exit visa and/or using an illegally obtained
passport, the person will be indefinitely detained. At page 18 of the
US State Department Report for Ethiopia, 2002, we find:
"The law requires citizens and residents to obtain an exit visa
before departing the country."
The Appellant stated at page 9 his statement of 3 November 2003 that he
entered the United Kingdom using a false passport because he could not obtain
a legal passport from the Ethiopian authorities. He also said that he did not
know the details of that passport because the agent held that passport at all
times. In the course of his Screening Interview, however, the Appellant gave a
somewhat different account:
"I did not see the name in the passport. The agent told me in
case I was stopped to give my name. [Question: Was your picture in the
passport?] Yes, because I have already given my picture. The agent told me
to give my name and date of birth in case I was stopped. If the passport
control ask your name, you can give them your name and date of
birth."
- On this material we consider that the passport
used by the Appellant contained his correct biographical details and his
photograph. There is little to suggest that the passport did not also contain
an exit visa, as one would be required on departure. In these circumstances,
it is difficult to understand what the Appellant meant by its being a false
passport. Be that as it may, the material before the Adjudicator and the
Tribunal is insufficient to establish that the Appellant left the country
illegally, that is without a valid exit visa or using an illegally obtained
passport.
Conclusions
- In our judgment, the Adjudicator reached a
sustainable conclusion in rejecting the Appellant's account that the
authorities demonstrated any interest in the Appellant two years after his
arrest in April 2001, following his involvement in a student demonstration.
Almost the sole basis for the Appellant's claim to be of continuing interest
is the Adjudicators reference in paragraph 21 of her determination to his
evidence that, after his release, he acted in a clandestine manner, even
though he was being kept under surveillance. Nevertheless, this did not
prevent him attending meetings on a monthly basis as "he would make sure no
one was following him." In our judgment, the Adjudicator was entirely
justified in placing little or no weight on the Appellant's own assertion,
without more, that he was under surveillance. This aspect of his claim is not
referred to elsewhere. Furthermore, the objective evidence does not support a
claim that members of the UEDP are subjected to routine persecution.
- We are also satisfied, having considered the fresh
material, that the report of Dr Campbell does not establish to a reasonable
likelihood that the Appellant's activities with the UEDP in London place him
at risk. In particular, we consider the Appellant's limited involvement as one
who attends meetings and pays his contributions is not reasonably likely to
result in his being monitored or identified. Nor do we consider that the
circumstances in which the Appellant left Ethiopia have been demonstrated as
likely to result in his detention (whether or not indefinitely) on return. For
these reasons, we are satisfied that the Adjudicator reached a sustainable
conclusion. The appeal is dismissed.
Decision: The Appellant's appeal is dismissed.
Andrew Jordan
Vice President
13 August 2004
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