Ejerssa v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE LAWS: This is an application for permission to appeal against the decision of the Asylum Immigration Tribunal ("AIT") promulgated on 27 May 2005. The AIT dismissed the applicant's appeal, which was based on asylum and human rights grounds, against the Secretary of State's refusal of asylum and the removal directions which had been set in consequence of that refusal. The AIT were dealing with the matter by force of transitional statutory provisions because the Immigration Appeal Tribunal (the IAT under the previous appellate regime) had allowed the appellant's appeal from an adjudicator and remitted the case for a re-hearing. So it was that it went to the AIT comprised by Mr Freeman (a senior immigration judge) and Mrs Lloyd (an immigration judge).

2. In pursuing the application this morning, Mr Ejerssa was accompanied by a friend Dr Sidji Kaballo. Mr Kaballo is not a lawyer and has no rights of audience. But as a matter of grace I allowed him to address me in support of Mr Ejerssa's application. He has done so very throughly and with great courtesy.

3. The applicant is a citizen of Ethiopia, born on 21 November 1968. The AIT set out the background of the case at paragraphs 11 to 24 of their determination as follows:

"11 The appellant claimed asylum in the UK on 6 August 2002, having arrived in the UK the day before as a seaman on a ship operated by the Ethiopian Shipping Lines.

12 A screening form was completed in which he stated that he was a member of the Oromo ethnic group, employed as a mechanic on a ship and born in Addis Ababa where he had left his pregnant wife when he left Ethiopia in April 2002.

13 He set out his claim in his statement at annex B in the Home Office bundle. He joined the OLF, an organisation established in 1973 by Oromo nationalists, in September 1994. He contributed money, recruited members and promoted the OLF cause.

14 In January 1996 he changed his workplace from Addis Ababa to Debrezeit and also changed his OLF position. He said at paragraph 11 of the statement: 'I was promoted from being an ordinary member to an active member of the information and instigation department.' H was assigned to a senior party member whom he worked for secretly. He had to protect and safeguard members of the OLS from dangerous situations by obtaining information early on.

15 On 1 February 1999, he was detained at Debrezeit police station, interrogated about the OLF and very badly treated. (His hand was fractured and later required hospital treatment). He disclosed no information over a six day detention and was finally released on 7 February 1999, having signed a form in which he promised to cease his political activities.

16 However, he continued his secret activities for the OLF.

17 In June 1999 he joined the Ethiopian Shipping Lines as a seaman which he described as 'a really good chance to advocate my political aims on behalf of the innocent Oromo people.' He said he travelled to many countries an did his best for the people of Oromo.

18 He reported no difficulties from his release in February 1999 until August 2002.

19 He went away to sea in April 2002. When we spoke to his wife on the telephone on 5 August 2002, she told him his father and brother had been taken away by the security forces on 28 July 2002, detained and beaten; his home had been ransacked; his wife was interrogated. It seems that his father was suspected of involvement in the OLF and his wife had been questioned about the appellant's involvement. She warned him not [to] come home as he would be arrested, persecuted or killed.

20 the appellant was interviewed by the Home Office on 3 December 2002. He confirmed that he telephoned home on August 5 2002 and was told by his wife that it was three days before his telephone call that the security forces detained his father and brother (Q7). He thought they were arrested because his father was a member of the Oromo nonpolitical Mecha Tulama; his brother was, wrongly suspected of OLF membership.

21 The appellant gave information about his own political activities: he joined in September 1994, becoming an active member in 1996. His role in Debrezeit was to inform his local branch leader, by the name of Getu Dabi, if members were due to be arrested - he had a contact in the security service (Q 21-26, 29)

22 He was now in fear for his own safety because his local branch leader had been arrested on an unknown date which meant the appellant would be arrested and was on the wanted list (Q 27). He thought the authorities had resumed their interest in him because his household was generally suspected of an OLF association and it was the regular practice of the government to arrest those suspected of an OLF link, whether or not there had been any recent incident. The appellant produced the document at annex E in the Home Office bundle which asserted that he was a member of the OLF who had been order to report back to the police station three years after his detention in February 1999.

23 In his oral evidence the appellant adopted his statements of 20 August 2002 and 30 April 2004 together with his Home Office interview record. With regard to the affidavit from the OLF, he said he was a member of the OLF political wing. He said his father died on 24 January 2003. His father was in detention when the appellant requested asylum in the UK (this was in August 2002). The full duration of his detention was 3-4 months. He died about one month after his release. (At the time of his Home Office interview on 3 December 2002, (Q57) the appellant said his father had been released).

24 The appellant raised a new matter in his oral evidence in that he described his pro-Oromo activities in the UK. He said he participated in protest rallies, demonstrations and meetings organised by the OLF which he believed were infiltrated by Ethiopian government agents; he had seen individuals taking video film. The government therefore knew of his activities in the UK."

The AIT indicated (paragraph 26) that they accepted some aspects of the applicant's evidence, his Oromo ethnicity, his ability to speak an Oromo language, the fact that his family traditionally supported the Oromo cause, the fact he was imprisoned in February 1999 and then released without charge. But otherwise they disbelieved him. In particular, they did not believe that he was a member of the OLF. They gave detailed reasons for this conclusion (see paragraphs 29 to 32 which I will not set out).

4. The AIT proceeded to specify a number of further matters on which they disbelieved the applicant. They stated at paragraph 38:

" ..... we find that this appellant has changed the emphasis of his claim in order to 'improve' it."

Having stated also (paragraph 42) that they rejected the core of his claim, they went on to consider the objective evidence relating to conditions in Ethiopia. As they themselves indicated at paragraph 48, they dealt with objective evidence in summary form only because, in effect, they had comprehensively rejected the applicant's case on the facts.

5. The grounds and the skeleton argument set out a series of complaints about the AIT's credibility findings which have been, in essence, followed by Dr Kaballo this morning. He grouped the submissions under two broad heads. First, in particular, it is alleged that at paragraph 30 the AIT misunderstood what had been meant in a letter from the applicant's solicitors where it had been stated:

"You cannot officially register as a member of the Oromo Liberation Front."

It is said that this really was referring to registration with the State rather than with the party. Dr Kaballo says that the AIT failed to follow well known case law to the effect that in approaching matters of fact of this kind the decision-maker has to have regard to cultural facts and situations prevailing in the society in question.

6. In broad terms, of course, I agree entirely with that. But I see no trace of any error here by the AIT upon any point that was argued before them at the time. They adopted what seemed to me to be the natural reading of the solicitor's letter. Even if that is wrong, given the whole content of the AIT's reasoning on the credibility issue, I greatly doubt whether this point could have affected the consequence. It seems to me that there is no error of law by the AIT.

7. The AIT are also accused of having held against the applicant the fact that he had not given all the facts of his account in a single statement. UNHCR guidance is relied on. This is to accuse the tribunal of a defect of which it seems to me they are not guilty. References to paragraph 34 of the determination simply indicates that a particular statement made by the applicant dated 20 August 2002 contained omissions which the AIT described as curious, and they then gave reasons for taking that view. That is not offensive to anything suggested or stated by the UNHCR or to any principles of law.

8. Some other points are taken. Complaint is made, for example, in relation to one point concerning the Ethiopian Shipping Lines. It is said that as regards that the AIT (see paragraph 36) merely went on impression and not evidence. That is not right. The AIT are commenting at paragraph 36 about the applicant's own evidence, and it seems to me they were entitled to do so. In relation to another matter, it is said in the written grounds that reliance on a particular discrepancy was a "weak argument" for rejecting the applicant's credibility. That is really a comment rather than a submission. One has to look at the credibility findings made by the AIT here in the round. Looked at in that way, it seems to me there is really no way in which they can be properly assaulted.

9. There is also a point made about the background material. It is said that insufficient account was taken of that. Indeed, it was submitted that on the background material, even on the limited findings in the applicant's favour which the AIT made, he would still have had a proper asylum case. I do not think that is established at all. The AIT were dealing with the case put to them and they dealt with that case thoroughly and fairly and in the round.

10. Lastly Dr Kaballo submitted that the AIT made an error in relation to the standard of proof that was applicable. The standard of proof in these cases is very well known and has been ever since the House of Lords decided Sivukamaran nearly 20 years ago. I see no trace of any error of that kind in this decision.

11. In my judgment, the grounds here are without substance. The AIT have, as I said, looked at the entirety of the applicant's account in the round. They have done so in a balanced and conscientious manner. There is no error of law in their conclusions. It is my duty to dismiss the application.

Order: Application dismissed