SM v Secretary of State

The appellant claims to be a citizen of Eritrea. He is twenty six years of age.

The respondent does not accept that the appellant is a citizen of Eritrea. This is because the appellant does not speak Tigrinya and the respondent does not accept the appellant’s reasons for this. He also showed a lack of knowledge regarding Eritrea. Further, the appellant has failed to provide evidence that his mother is of Eritrean origin.

At the start of the hearing it was agreed that all of the relevant documents are in the stitched bundle. The appellant gave oral evidence using the Amharic interpreter who he confirmed they could understand. It was agreed that the central issue is the credibility of the appellant’s claim to be Eritrean; if I make this finding it is accepted that the appeal should be allowed.

I informed the parties that my decision might be published. Ms Revil submitted that the anonymity direction should remain in case to protect the appellant. I agreed.

I shall set out the evidence and submissions only as is necessary to give reasons for my findings. The hearing was recorded.

To succeed in an appeal on asylum grounds, the appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion).  The burden of proof rests on the appellant.   As the asylum claim was made on or after 28 June 2022, pursuant to s32 of the 2022 Act, in considering whether the appellant qualifies as a refugee, I must apply a two-stage test.  As per the guidance from JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100 I must first determine the following matters on the balance of probabilities: 

If so, I must go on to determine whether it is reasonably likely that:  

To succeed on an appeal on humanitarian protection grounds the appellant must not be a refugee; they must show substantial grounds for believing that they would face a real risk of suffering serious harm in their country of origin.  The burden of proof rests on the appellant. 

I am satisfied that, taken at its highest, the appellant’s claim engages a Convention reason; nationality.

The appellant’s evidence is that his mother took him out of Eritrea when he was five years of age. The reason that they left was because the family were Pentecostal Christians which was a banned religion in Eritrea and the appellant’s father had been imprisoned. The appellant’s evidence is that he was so young when he left Eritrea that he has little recollection of the country. The appellant and his mother went to Ethiopia where they lived with his mother’s friend Senay.

Senay Is an Ethiopian citizen and only spoke Amharic. This is therefore the language that the appellant grew up speaking. The appellant’s mother was often away working. She disappeared when he was thirteen years of age and the appellant’s evidence is that she was deported to Eritrea. In 2022 the appellant became afraid that he would also be deported and moved to Sudan with his wife. From there he fled to Europe.

The respondent places significant weight on the appellant’s inability to speak Tigrinya. The respondent relies on country background information that there are about eighty-six languages spoken in Ethiopia and an estimated seven million Ethiopians who speak Tigrinya. The appellant’s evidence is that his mother was afraid that if they spoke Tigrinya they would place themselves at risk, also, they were living with an Amharic speaker and so this naturally became his first language. I am satisfied that this is a reasonable explanation. Further, that although the appellant and his mother were living in the Oromo region the respondent’s “Report of a Fact-Finding Mission Ethiopia: Situation of Tigrayans Conducted between 10 to 14 June 2024 Published: December 2024” reports that “Oromo and Amhara believe only people who are ethnic Oromo or Amhara can live in those regions.”

The respondent also challenges the appellant’s evidence that he and his mother were afraid whilst living in Ethiopia. The respondent relies on a document “More Eritrean Refugees enrolled in Schools in Ethiopia” (the Migrant Project) which she says is evidence that over one million refugees were offered residency rights by the Ethiopian government in January 2019. This is not however what the article says. There is reference to the Ethiopian parliament passing a law giving almost 1 million refugees the right to live and work outside of the camps but I find that there is no evidence that any specific measures were taken towards Eritreans living illegally in Ethiopia such as the appellant and his mother. I also find that the country background information submitted by the appellant corroborates his account that more recently the Ethiopian authorities have been targeting Eritreans.

In cross examination Mr. Fearon asked the appellant how he could HAVE married in Ethiopia (to his Eritrean wife) if they were both living there illegally. I find that the appellant’s answer to this question was spontaneous and credible. His evidence is that they were unable to legally marry but a ceremony conducted by the elders in his home.

Whilst the respondent criticises the appellant for failing to provide documentary evidence to support his claim the fact is that he has produced his birth certificate. The respondent has however chosen to place little weight on the document because of her negative credibility findings, not because of any tangible issue with the document. I however find that the appellant’s evidence is credible and consequently will place weight on this document to establish his citizenship. I also find, as Ms. Revil highlighted, that at no stage has the respondent challenged the nationality of the appellant’s father. I am also satisfied that the appellant has unsuccessfully approached the Ethiopian Embassy in London to establish his entitlement to citizenship. I find it credible that the appellant has not approached the Eritrean Embassy given his subjective fear.

I have taken into account the appellant’s failure to claim asylum in France where he lived for one year. The appellant’s evidence is that he was afraid to do so because he had a forged passport. It is for me to attribute the weight to be attached to this failure (JT(Cameroon) v SSHD [2008] EWCA Civ 878) and given my positive credibility findings I am not persuaded that this is sufficient to undermine the appellant’s claim.

I am therefore satisfied that the appellant is a citizen of Eritrea. It is not disputed that the appellant would be at risk on return to Eritrea, He therefore meets the requirements for recognition as a refugee.

The appeal is allowed.

The appellant is entitled to Refugee Status.

He is not entitled to Humanitarian Protection.

His removal would be in breach of Article 3 ECHR.