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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005227
	First-tier Tribunal No: PA/01407/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 25 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RASTOGI

DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

 

Between

 

HG

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Miss Dirie (Counsel, instructed by JCWI)

For the Respondent: Miss Newton (Senior Home Office Presenting Officer)

 

Heard at Field House on 5 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and her family members are 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 and her family members. Failure to comply with this order could amount to a contempt of court.

 

DECISION AND REASONS

1.              This is an appeal brought, with permission of First-tier Tribunal Judge Sill, by the appellant against one aspect of the decision of First-tier Tribunal Judge Reed ("the Judge") dated 13 August 2024, in which the appellant's protection appeal was dismissed, and the human rights appeal was allowed. It is the dismissal of the protection appeal that is challenged in the appeal before the Upper Tribunal.

2.              The appeal before the First-tier Tribunal involved the appellant (then referred to as the second appellant) and her mother (then referred to as the first appellant). In summary, the Judge accepted that the appellant's mother was both a member and an active supporter of the Oromo Liberation Front (OLF), a political organisation in Ethiopia, that both she and her son had suffered problems including detention at the hands of the Ethiopian authorities in the past and that she would be at risk of harm on return (paragraph 75) and allowed her protection appeal. In reaching that conclusion that Judge had regard to the unchallenged witness evidence, unchallenged expert report of Mr Charles Schaefer and the Country Guidance cases of MB (OLF and MTA - risk) (Ethiopia) CG [2007] UKAIT 00030 and AAR (OLF - MB confirmed) CG [2022] UKUT 1. There is no challenge to those findings.

3.              The appellant's protection case before the First-tier Tribunal was that as the daughter of her mother, she too would be at risk of harm from the authorities on the basis of imputed political opinion. The Judge did not accept her claim was made out on the evidence. The reasons were that:

"78. Although the report of Charles Schaefer states that family associations contribute to the likelihood of persecution, I am not satisfied that the point is sufficiently proved. Firstly, the only supporting objective evidence is a single US Department of State Human Rights Report from 2016, some 8 years ago. Secondly, and more significantly, the point is not supported by the Country Guidance cases.

79. I have regard to the fact that the First Appellant's son was arrested and detained by the authorities, but there is no material evidence regarding the reason for this arrest. Although the son's witness statement refers to being asked questions regarding his mother, as stated above, I place very limited on this evidence. I also note that the First Appellant's other son did not appear to suffer any adverse attention from the authorities, despite remaining in Ethiopia until around August 2020."

4.              The Judge accepted that the appellant would at least be perceived as half Oromo given that her mother is of Oromo ethnicity but was not satisfied that this point, in addition to the other findings, would be sufficient to put the appellant at risk of harm (paragraph 80). The appellant's protection appeal was dismissed.

5.              The Judge allowed the appellant's article 8 appeal having concluded that there were very significant obstacles to integration. There is no challenge to those findings, and we need say no more about them.

Summary of grounds

6.              The appellant challenged the decision to dismiss the appellant's protection appeal on the following basis:

(1)     There were no reasons to reject the evidence of the expert Mr Schaefer on the point of risk to family members.

(2)     His expertise was accepted, and he had considerable history of living in and researching Ethiopia.

(3)     The expert relied upon his extensive anecdotal evidence to support his opinion.

(4)     There was recent evidence from Amnesty International annexed in full to the country guidance case of AAR, which details the targeting of family members. The Judge failed to take that evidence into account.

7.              There was no rule 24 response, but it was confirmed by Miss Newton that the respondent resisted the appeal. We heard submissions on behalf of both parties in respect of all grounds of appeal.

8.              Miss Dirie relied upon her grounds of appeal and took us to the relevant material within the bundle and the country guidance cases.

9.              Miss Newton submitted that the Judge had expressly reminded herself to consider the evidence as a whole (paragraph 59) and that it was clear that the Judge was aware of the expert evidence. The Judge was correct to state that there was no material evidence regarding the reason for the son's arrest and to observe that the other son had not come to the adverse attention of the authorities. The decision was adequately reasoned and therefore sustainable as to why the appellant could not succeed in her protection appeal (paragraphs 73-79).

10.          The parties agreed that if we found an error of law that we could proceed to hear submissions and remake the decision at this hearing.

11.          We briefly retired to consider our decision. We then informed the parties that we were satisfied there was an error of law in respect of the appellant's protection appeal. We provided a summary of the reasons orally and indicated that full written reasons would follow, which are set out below. We then heard submissions relevant to the remaking part of our decision and reserved our decision.

Error of law conclusions

12.          We are satisfied that the Judge was wrong to conclude that the only supporting evidence to support the expert's opinion that family associations contribute to the likelihood of persecution was a single US Department of State Human Rights Report from 2016 (Paragraph 78). The expert based his opinions, in part, on his own wider expertise and knowledge. His expertise and evidence was unchallenged and found to be in accordance with the country guidance cases (paragraph 67 and 69), however, the Judge failed to take into account the following relevant parts of his report

13.          At the outset of the expert report Mr Schaefer explained his personal and professional history including that he was born in Addis Ababa, he has lived cumulatively in Ethiopia for approximately 15 years and travels there frequently. He has made Ethiopia and Eritrea the focus of his academic career and has conducted interviews first-hand. He lists a number of recent books and articles that he has authored regarding history, politics and justice in Ethiopia. Importantly, Mr Schaefer states (at paragraph 3 of his report):

"I travel regularly to Ethiopia for professional and scholarly reasons, and have firsthand knowledge and personal experience of social, cultural and political events in Ethiopia as well as human rights issues in particular. I have authored or contributed to several country expert reports on the political, economic, social and other aspects of life in Ethiopia. A significant proportion of what I say below is based on firsthand observation, discussions with Ethiopians inside and outside Ethiopia, being part of Amnesty International's team for Ethiopia including working with the International Secretariat based in London from 2006 to 2009 and participating in a group of scholars and country experts on Ethiopia. (For further details see accompanying CV)."

14.    Had the Judge taken Mr Schaefer's wider experience and knowledge into account then there is much more to the passage in his report regarding family relations and likelihood of persecution than a single reference to the 2016 USSD human rights report, as set out below:

"61. Family associations and histories contribute to the likelihood of being persecuted in Ethiopia especially if they were connected with opposition politics or any of the core opposition parties. Recently, families have been targeted because of their ethnicity. In the past, under the Marxist dictatorship, known as the Derg (1974-1991), family connections were less important in determining whether a person was a political threat to the regime. In the 1980s under the Derg led by Mengistu Haile Mariam, I knew of several families where one brother was incarcerated for political activities and another held an important government position. This has changed under the EPRDF and now the Prosperity Party. In my considerable experience in Ethiopia since the EPRDF took over in 1991 and now under the Prosperity Party that was formed from the EPRDF in 2019, whole families are often harassed for the activities of one family member-”a very effective tool employed to curb government opposition. I presume the assumption of the Prosperity Party/EPRDF is that "fruit does not fall far from the tree." This pattern of harassment and persecution of family members is in fact reported in the U.S. Department of State's own "Ethiopia 2016 Human Rights Reports" which says, "Security forces continued to detain family members of persons sought for questioning by the government.'

63. It is this understanding of the kinship ties, underpinning Ethiopian society, that has shaped the Prosperity Party's and earlier the EPRDF's strategy to go after whole families. As oppression has increased-”the result of the Prosperity Party viewing itself as beleaguered by a collapsing economy, coronavirus and a civil war in Tigray plus ethnic- minority militias ruling over an ever more hostile population-”it has resorted to harsher measures. The number of incarcerated, tortured or disappeared people appear immaterial to the Prosperity Party in 2024; what is important is rooting out all opposition. Perhaps based on reality, perhaps in paranoia the Prosperity Party, like the EPRDF before it, moves against whole families. If one member is deemed an enemy of the state, the whole family is targeted."

15.          Turning to the evidence in AAR, the appellant accepts that the issue of risk to family members was not an issue before the Tribunal in AAR and so was not subject to a particular finding. However, Miss Dirie points to the evidence of Mr Southerden on behalf of Amnesty International dated 9 November 2020 which was relevant to the issue of risk to family members. This evidence was before the Tribunal in AAR, annexed to the decision in full and expressly said to be consistent with other evidence ( AAR paragraph 102). The relevant parts of Mr Southerden's evidence (at Appendix 4 to AAR) is as follows:

"...Individuals perceived as being associated with the OLF, (whether through membership, support, historic association through security agency records, or family ties) were particularly targeted...

As part of this, we would emphasise the extreme arbitrariness of the Ethiopian security services' conduct in Oromia and in its dealings with Oromo people perceived as political opponents of the government. While this is a longstanding issue, it is particularly pronounced at the present time, where mass-roundups, enforced disappearances and extrajudicial executions are regular occurrences, alongside indiscriminate violence in response to public demonstration and perceived dissent. In Oromia, the grounds on which a person can be accused or perceived of being a supporter of the OLF, and therefore a potential supporter of the OLA and a threat to the government, are broad, dependent on the whims of the officers involved and to an extent unpredictable. As discussed in our 'Beyond Law Enforcement' report, in recent months the reasons have included simply being Oromo and living in a certain location, or because a person's mobile phone rang and interrupted a public meeting. While specific individuals are certainly targeted, based on suspicion of OLF involvement, the arbitrariness of the security services' conduct has meant that in multiple instances, where security officials were not able to find the suspects they were looking for, they arrested or abducted family members including children. In one instance, the police physically assaulted an 8-year-old girl, because they couldn't find her mother at home when they came to arrest her.

As a general statement, our organisation's assessment is that Oromo Liberation Front members and sympathisers (whether perceived or otherwise) do continue to be at risk in Ethiopia.

...

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.

While men, and young men in particular, make up the majority of those targeted by the authorities or caught up in mass arrests, gender and age do not appear to offer any significant level of protection against suspicion and targeting by the authorities. Our researchers found that women are routinely targeted for arrest, often on accusations of providing support for the 'OLF-Shene'. Likewise, older people and children have also been targeted, particularly those who have family connections to 'OLF-Shene' suspects."

16.          We agree that this evidence is relevant to the issue before the Judge. The Judge does not deal with this evidence at all.

17.          We are satisfied that there are material errors of law in the First-tier Tribunal determination in respect of the appellant's protection claim. We are satisfied that the Judge was wrong to conclude that the only evidence supporting the expert's conclusions as to risk to family members was a single 2016 USSD report. The Judge failed to take account of the expert's wider expertise and knowledge, which was unchallenged. Furthermore, we are satisfied that there was material evidence related to the risk to family members contained within the country guidance case of AAR, which the Judge failed to deal with.

18.          For those reasons, the decision dismissing the appellant's appeal is set aside. We preserve the findings of fact, and conclusions on article 8 and we remake the decision below.

Submissions relevant to the protection claim appeal

19.          We heard oral submissions from the parties and reserved our decision. Miss Dirie sought permission to provide us with a written schedule of the page references in the bundle to accompany her oral submissions. Miss Newton had no objection to this, and we allowed Miss Dirie to file and serve a written schedule of page references by 4pm on 6 February 2025 as long there would be no prejudice to Miss Newton. In the event Miss Dirie has provided a skeleton argument which includes a schedule of key documents and references. We consider that this document reflects Miss Dirie's oral submissions and does not deviate from or expand upon them. As such there is no prejudice to the respondent that this document has been received after the hearing. Furthermore, we have not received any objection to our considering the contents of this document by the respondent.

20.          Miss Dirie referred to the following preserved findings of fact from the First-tier Tribunal decision:

"65. There was also supporting witness evidence that was not before the Judge for the Previous Decision . The Respondent claimed not to have accepted the witness evidence, but the evidence of three material witnesses was not challenged. Such unchallenged evidence included details of the First Appellant's involvement with the OLF, the arrest and release of the son and the fear of harm on return. Given that the supporting witness evidence was unchallenged, was generally detailed and was consistent with the First Appellant's evidence, I do place some weight on this evidence.

67. There was a country expert report from Charles Schaefer for the First Appellant, dated 5 July 2024. The Respondent had been given the opportunity to challenge this report but declined to do so. The Respondent accepted the writer's relevant expertise.

69. Significantly, Mr Schaefer's report for the First Appellant appears to be in accordance with the Country Guidance cases of MB (OLF and MTA - risk)(Ethiopia) CG [2007] UKAIT 00030 and Roba (OLF - MB confirmed) CG [2022] UKUT 1. Having regard to this fact, in addition to the fact that the report was unchallenged and the writer is an accepted expert, I place some weight on the report.

73 . There was also a country report from Mr Schaefer for the Second Appellant. This report was not challenged by the respondent, and it is discussed further below.

...

75. However, when considering the weight of evidence in the round, I am satisfied that the First Appellant's asylum claim is made out to the lower standard of proof. I am satisfied that she was both a member and an active supported of OLF. She and her son both suffered problems in the past, and she would be at risk of harm on return.

76. In reaching this conclusion, I have regard to the unchallenged witness evidence, the unchallenged expert report and the Country Guidance cases referred to above. Regarding the latter point, I note that although the Previous Decision appeared to depart from MB, the subsequent case of Roba reiterated the MB findings."

[emphasis added]

21.    Miss Dirie also referred to the country guidance cases, particularly the conclusion in AAR at headnote (3) that those perceived to have a significant history of OLF membership or support will in general be at real risk of persecution by the authorities, and the evidence of the expert Mr Schaefer and Mr Southerden at Appendix 4 of AAR as set out above. She invited us to find that the appellant's brother's arrest and detention was politically motivated due to his mother's commitment to the OLF and that the appellant would come to the adverse attention of the authorities at the airport (by reference to paragraph 17 of Mr Schaefer's second report).

22.    Miss Newton on behalf of the Respondent referred to the appellant's own evidence that she had visited Ethiopia on numerous occasions over the years and had been able to move freely without any issues. She had stayed for 10 days at a time and there was no trigger point upon arrival as contended for by the appellant. The point being that if she was not targeted then, why would she be targeted now?

23.    Miss Newton accepted that there is evidence from the expert Mr Schaefer and in AAR regarding risk to family members, but the appellant's other brother has not been targeted and despite visiting Ethiopia the appellant has not been targeted either and therefore it is not plausible that she will be targeted now.

24.    In reply, Miss Dirie submitted that the chronology is key and that it was important to note that whilst the appellant had visited Ethiopia previously, she stopped after her brother was arrested and detained in 2018; 2020 was a pivotal year when her mother realised that she could not return, and there had been an escalation in the authorities' attitude towards the appellant's mother and therefore the family.

Conclusions on remaking

25.    In coming to our conclusions, we have attached weight to the expert reports of Mr Schaefer for the same reasons as given by the Judge (paragraph 69). Namely, that the author is an accepted expert, and the reports were unchallenged.

26.    We attach weight to the appellant's mother's written and oral evidence because although the Judge noted that there were some inconsistencies in her evidence (paragraph 61), the Judge accepted that mistakes regarding dates can arise (paragraph 63), there was supporting evidence from three unchallenged witnesses (paragraph 65) and the expert report of Mr Schaefer (paragraph 69) and ultimately the Judge accepted her evidence (paragraph 75).

27.    In addition to the submissions and materials referred to by the parties in remaking this decision, we have had regard to the following which were either facts found by the judge or matters about which we are satisfied:

Facts found by the judge:

 

(a)     The Judge accepted that both the appellant's mother and brother had suffered problems with the Ethiopian authorities (paragraph 75).

(b)    The Judge accepted that the appellant will at least be perceived as half Oromo (paragraph 80).

 

Matters about which we are satisfied:

 

(c)     The appellant's mother describes in her appeal witness statement at paragraph 161 that in March 2017, despite visits from the Tataki getting worse during her trip to the UK she did not have any issues at the airport upon her return. The harassment continued to escalate. When she left Ethiopia in 2018, she did not have any issues at the airport (appeal witness statement paragraph 174).

(d)    The appellant's mother explains in her appeal witness statement (paragraph 203) that the housemaid (who was present when the authorities arrested her son) told her that the authorities had come looking for her and was very clear about that, they searched the house and seized her laptop, some pamphlets and other documents and took her son in her place.

(e)     That the Ethiopian authorities act arbitrarily and cannot be relied upon to act consistently and predictably (see AAR para 101 and the evidence of Mr Southerden at Annex 4).

(f)      The appellant had visited Ethiopia for period of around 10-14 days roughly every 2 years.

(g)    The appellant was last in Ethiopia in 2018 before her brother's arrest.

(h)    The appellant would be returned as a failed asylum seeker and this will raise suspicion. The appellant's own political opinions will have little to do with the authorities' investigation (Mr Schaefer's second report paragraph 9).

28.    In this particular appellant's case, we are urged by the respondent to consider the fact that the appellant travelled to Ethiopia on a number of occasions and did not encounter any problems and that one of her brothers also did not have problems with authorities. However, as per 27 (e) above, we are satisfied that the Ethiopian authorities cannot be relied upon to act consistently in light of the evidence of arbitrary actions. Secondly, the appellant's mother herself was able to leave and re-enter Ethiopia without issues at the airport but nevertheless it was accepted by the Judge that she is at risk of persecution. Thirdly, the appellant was not previously returned as a failed asylum seeker, a fact that will cause the authorities to subject her situation to close scrutiny and suspicion (see para 27 (h) above).

29.    We are satisfied that it is reasonably likely that the appellant's brother was detained because of his relationship to their mother. This is not based on his evidence, on which the Judge placed little weight since he was not present for his evidence to be tested (paragraph 66). Rather it is based on the objective evidence, together with the appellant's mother's evidence about what she was told by the maid who was present when the house was raided. This evidence was unchallenged and we have accepted it.

30.    We are satisfied that the appellant is likely to be perceived by the authorities to have a significant history of OLF membership or support because of her relationship to her mother. The evidence contained within the unchallenged expert evidence of Mr Schaefer's report, together with evidence from Mr Southerden on behalf of Amnesty International in AAR leads us to conclude that there is an objective foundation for the conclusion that family members of those with significant history (as understood in AAR) of OLF membership or support are at risk being targeted and therefore risk of persecution. Accordingly, we find that the appellant is at real risk of persecution upon return to Ethiopia due to her family association with her mother.

31.    For these reasons, we conclude that the appellant is at real risk of persecution upon return to Ethiopia for a convention reason, namely political opinion. Since the appellant is at risk from the state there is no sufficiency of protection and no internal relocation alternative.

32.    The appellant is a refugee, she does not qualify for humanitarian protection, and we need not consider her claim on article 2 and 3 ECHR grounds.

33.    The Judge's findings on article 8 ECHR are unchallenged and those findings are preserved.

Notice of Decision

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

35.          The appellant's appeal is re-made and allowed on asylum and human rights grounds.

 

 

E Daykin

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

19 February 2025