Abdi Roba v The Secretary of State for the Home Department

This matter was identified as suitable to consider the continued appropriateness of MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030 remaining as country guidance in respect of persons who are members and sympathisers, or supporters, of the Oromo Liberation Front (OLF) and those specifically perceived by the Ethiopian authorities to be such members or sympathisers.

At the hearing, the respondent conceded at the conclusion of her case that she was unable to produce cogent evidence capable of justifying departure from MB (OLF and MTA – risk).

We are satisfied that the parties drew relevant objective documentary evidence to our attention and presented detailed submissions, whether orally or in writing, to ensure that this decision is based on as full and informed an analysis as possible.

The position of OLF members and sympathisers, or supporters, was considered in the reported, but non-country guidance, decision of HA (OLF Members and sympathisers – risk) Ethiopia [2005] UKAIT 00136 where the Tribunal concluded, at para. 17:

The sole extant country guidance concerned with the OLF is MB (OLF and MTA – risk). At para. 66 of its decision, the Tribunal approved the conclusions reached in HA (OLF Members and sympathisers – risk). In respect of the OLF, the headnote confirms:

The present position of members or supporters of the Macca Tulema Association (MTA), also subject to country guidance in MB (OLF and MTA – risk), is not a consideration in this appeal as the appellant has no connection with this organisation, which has been proscribed in Ethiopia since 2004. MB (OLF and MTA – risk) remains country guidance in respect of international protection appeals concerned with the MTA.

The applicable law was not a matter of contention between the parties. The Tribunal is required to consider the following question: does the appellant have a well-founded fear of being persecuted if returned to Ethiopia for a reason specified in Article 1A(2) of the Refugee Convention? The appellant relies upon political opinion.

The burden of establishing a well-founded fear of persecution falls upon the appellant. A fear of persecution will be well-founded if the decision-maker is satisfied that there is a reasonable degree of likelihood (or real risk) that the individual would be persecuted for a Convention reason if returned to his own country: R v. Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958.

Paragraph 339K of the Immigration Rules establishes an alleviating evidentiary rule for cases where an appellant has established to the requisite standard that they have already been subject to persecution or serious harm, or to direct threats of such persecution or such harm. Such fact will be regarded as indicative of future risk, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

The appellant’s article 3 ECHR appeal stands and falls with his asylum appeal.

Findings of fact in one case will not, in general, bind any subsequent Tribunal. However, this principle is modified in one important respect. The First-tier Tribunal and the Upper Tribunal must treat as authoritative any country guidance authority relevant to the issues in dispute unless there is good reason for not doing so, such as fresh evidence which casts doubt upon its conclusions, and a failure to follow country guidance without good reason might involve an error of law.

The First-tier Tribunal concluded in July 2019 that the “significant and startling changes to the country” since the appellant left in 2016 meant that there was “a willingness on the part of his country to offer him protection” and so he could not succeed in his appeal. Reliance was primarily placed by the First-tier Tribunal upon a Danish Immigration Service report, ‘Ethiopia: Political situation and treatment of opposition’ (September 2018), which in turn relied upon interviews undertaken with sources in Addis Ababa in May 2018, some 14 months before the First-tier Tribunal’s decision. The decision of the First-tier Tribunal was set aside due to the failure to consider the guidance provided in MB (OLF and MTA – risk); country guidance not having been referred to by either party or placed before the Tribunal.

Section 107(3) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) states:

PD 12.2 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (last amended 18 December 2018) (‘the Practice Directions’) establishes:

The giving of country guidance is an important part of this Tribunal’s function, intended to promote the administration of justice through the achievement of consistent decision-making throughout the asylum process and to enable the parties to know where they stand: see PD 12.4 of the Practice Directions and BD (Application of SK and DK: Croatia) [2004] UKIAT 32*, [2004] Imm. A.R. 226, at [58]. Such guidance operates as an exception to the principle that findings of fact in one case will not in general bind any subsequent Tribunal.

As noted by Stanley Burnton LJ in SG (Iraq) v. Secretary of State for the Home Department [2012] EWCA Civ 940, [2013] 1 W.L.R. 41, at [45], there are simply not the resources for a detailed and reliable determination of conditions in foreign countries to be made on an individual basis in each decision arising on the application or appeal of persons seeking protection. Even if the resources were available, it would be wasteful to have such an investigation, involving much the same evidence, in every case. There would also be a risk of inconsistent decisions, a consideration that is particularly important as it follows from a decision that if one person requires protection, if correct, that a person in the same situation who has been returned may have risked or suffered ill treatment or worse. Stanley Burnton LJ observed, at [46]:

In HM (Iraq) v. Secretary of State for the Home Department [2011] EWCA Civ 1536, at [39], Richards LJ confirmed that country guidance decisions possess “a status and significance comparable to that which declarations can have in public law cases.”

In R (Iran) v. Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] Imm AR 535, at [90.4], the Court of Appeal held that a failure to identify and apply a relevant country guidance decision without good reason might amount to an error of law in that a relevant consideration had been ignored, and legally inadequate reasons had been given for the decision.

PD12.4 of the Practice Directions confirms that because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.

The provisions to which we have referred, coupled with the identification of a decision as ‘CG’ constitute a legal rule imposing a presumption of fact. Unless there is cogent evidence (SG (Iraq) at [47]) to justify departure from the country guidance decision, the law is that the facts must be found in accordance with that decision.

The law, and the principle, are not affected by the age of the decision. It may be that as time goes on, evidence will become available that makes it more likely that departure from the decision will be justified. But the process remains the same, and unless in the individual case the departure is shown to be justified, the guidance contained in the CG case must, as a matter of law, be adopted.

The Tribunal considered the correct approach as to departure from extant country guidance in SMO, KSP & IM (Article 15 (c); identity documents) Iraq CG [2019] UKUT 00400 (IAC), at [209]-[211]. An assessment is to be undertaken as to: (i) whether material circumstances have changed; and (ii) whether such changes are well established evidentially and durable.

Individual cases will turn on an assessment of their facts and appellants are not to be pigeonholed in some pre-determined classification system. Country guidance must be applied with some degree of subtlety. It cannot, and does not purport to, cover definitively every permutation of fact or circumstance which emerges. Rather, it is, by law, the starting point. It will carry considerable weight even in a case where departure from the guidance is justified, or where the question to be answered is somewhat different from that answered by the country guidance decision: SB (Sri Lanka) v. Secretary of State for the Home Department [2019] EWCA Civ 160, at [70], [75].

The treatment of country guidance as a presumption of fact means that it will be for the parties seeking to persuade the Tribunal to depart from it to adduce the evidence justifying that departure. If the existing country guidance is such as to favour appellants to a greater or lesser extent, this task will therefore be the respondent’s. There are similar burdens on the respondent in relation to other refugee issues, for example where an appellant fled their home country as a genuine refugee from Convention persecution, as established by the House of Lords in R (Hoxha) v. Special Adjudicator [2005] UKHL 19, [2005] 1 W.L.R. 1063, at [66], or where it is said that owing to change in circumstances the appellant no longer has a well-founded fear: PS (cessation principles) Zimbabwe [2021] UKUT 00283 (IAC), at [27].

PD 12.3 of the Practice Directions confirms that representatives are expected to be conversant with current country guidance determinations relating to an appellant’s country of nationality. A general duty is therefore placed upon parties and their representatives to ensure that the materials they adduce before the Tribunal include relevant country guidance decisions: KK (Unreported decisions - Practice Directions) Sudan [2006] UKAIT 00008, at [8]. Rule 2(4)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the 2008 Rules’) imposes a duty upon parties to cooperate with this Tribunal generally and so it will be procedurally proper for the Tribunal to ask the parties at the outset of a hearing as to whether there is relevant, extant country guidance and, if so, upon whom the burden of disproof falls. Such requirement is consistent with the observation of the Court of Appeal in Laci v. Secretary of State for the Home Department [2021] EWCA Civ 769, at [85].

If the parties fail to abide by their general duty in respect of identifying extant country guidance, it remains for the Tribunal to consider such guidance and to follow it, in accordance with what we have set out above. A party that before the First-tier Tribunal has failed to address extant country guidance or has failed to demonstrate proper grounds for departure from it is unlikely to have a good ground of appeal against a decision founded on the guidance.

Both Mr. Burrett and Ms. Bayoumi agreed that in the present case it was for the respondent to justify any departure from the country guidance given in MB (OLF and MTA – risk).

In light of the respondent’s concession recorded at para. 2 above, we have not found it necessary to set out the country background evidence in the detail that would normally be found in a country guidance decision. While we have read the documents named in Appendices 1 to 4, for the purpose of this appeal we confine our summary to the documents relied upon by the respondent, and two documents submitted by the appellant.

The documents relied upon by the respondent included four Country Policy and Information Notes (CPINs), all issued in 2019 and 2020, the ‘Report of a Home Office Fact-Finding Mission: Ethiopia: The political situation’ published in February 2020 (‘the Fact-Finding report’) and the ‘Response to an Information Request: Ethiopia, Oromos and the Oromo Liberation Front’ (‘the Response’) published shortly before the hearing in February 2021. Reliance was further placed on the Australian Department of Foreign Affairs & Trade ‘Country Information Report, Ethiopia’ (‘the DFAT Report’) published on 12 August 2020.

As to the documents submitted by the appellant, the first is a letter from Amnesty International, dated 9 November 2020. The author is Tom Southerden, a researcher with the organisation’s Refugee and Migrants’ Rights Programme. The second is another Amnesty International document, a report published in 2020: ‘Beyond law enforcement: Human rights violations by Ethiopian Security Forces in Amhara and Oromia’ (‘Beyond law enforcement’).

From this information we draw the following information.

The national census conducted in 2007 established the population of Ethiopia as being close to 78 million. The present population estimate is in the region of 118 million. The country is home to various ethnic groups, though no group is in the majority. Oromo are the largest ethnic group with an estimated 34 per cent of the population. Amhara are the next largest group with 27 per cent. Tigrayans constitute 6 per cent of the population.

Ethiopia’s 1994 Constitution defines the country’s structure as a multicultural federation based on ethno-national representation, establishing a federal system of ten regional states delineated according to settlement patterns, language and identity (ethnicity). Delineation essentially makes Ethiopia an ethnic federation, whereby the largest ethnic groups administer their own regional states and operate with considerable autonomy from the federal government. In addition, there are two chartered cities, including the country’s capital Addis Ababa.

The country is administratively divided into, in descending order, (i) regional states, (ii) zones, (iii) districts (woredas) and (iv) wards/neighbourhoods (kebele).

At the time of the decision in MB (OLF and MTA – risk) the ruling party in Ethiopia was the Ethiopian People’s Revolutionary Democratic Front (EPRDF), an ethnic federalist political coalition of four ethnically based political parties, including the Oromo Peoples’ Democratic Organization (OPDO), in which the leading party was the Tigray People’s Liberation Front (TPLF). The coalition came to power at the conclusion of the 1974 to 1991 civil war and dominated Ethiopian politics until 2019 when it dissolved. The present Prime Minister, Abiy Ahmed, acknowledged to Parliamentarians in June 2018 that the EPRDF engaged in the systematic use of torture against members and perceived members of the opposition prior to his accession in April 2018: “Our constitution doesn’t allow it, but we have been torturing, causing bodily damages and even putting inmates in dark prison cells ... These were terrorist acts committed by us and using force just to stay in power is a terrorist act too.”

From November 2015 onwards months of anti-government demonstrations against perceived political marginalisation, human rights abuses by the federal military and police, and federal encroachment into regional affairs resulted in more than 1,200 deaths. Civil unrest originated in Oromia Region before spreading across Ethiopia. The response was heavy-handed. In October 2016 the then Prime Minister, Hailemariam Desalegn, declared a nationwide state of emergency and by February 2017 the government acknowledged that 20,000 people had been arrested under emergency powers in Oromia Region. Opposition groups claimed that there had been 70,000 arrests.

Prime Minister Hailemariam proved incapable of ameliorating the protracted anti-government protests and resigned on 15 February 2018. With the TPLF having descended into factionalism, for the first time since its creation the leadership of the EPRLF was handed to a non-Tigrayan, Abiy Ahmed, the then 42-year-old Oromo leader of the OPDO. Following his accession as Prime Minister in April 2018, Prime Minister Abiy tightened his grip on the party with the removal of several central committee members. The ODPO was renamed the Oromo Democratic Party (ODP) in September 2018. The EPRDF coalition was subsequently annulled, and its successor the pan-ethnic Prosperity Party was established on 1 December 2019. The new party was formed through the merger of three of the four governing coalition parties, including the ODP, with five regional allies also agreeing to be merged. Only the TPLF stood apart.

Upon assuming office in 2018, Prime Minister Abiy committed to opening the country politically and economically. In its first 100 days the government released thousands of political prisoners, lifted the state of emergency, removed terrorist designations on opposition groups including the OLF, closed a notorious detention facility, and granted amnesty to jailed dissidents. The Prime Minister replaced senior security chiefs, sacked prison officials and loosened press restrictions. He sought peace with domestic insurgent groups, initiated a rapprochement with Eritrea that brought a formal end to a decades-long border dispute, and pursued a peacemaker role in the region. His foreign affairs efforts secured him the Nobel Peace Prize in 2019. These events led to the respondent considering that there were very strong grounds supported by cogent evidence to depart from the Tribunal’s country guidance in MB (OLF and MTA – risk).

The liberalisation process slowed down with reform making limited tangible impact in the political sphere after the initial efforts to bring formerly proscribed political actors back onto the political stage. The respondent’s Fact-Finding Report acknowledges several sources as observing that after initial positive changes the situation was now “one of regression or backsliding”: para. 1.5.1.

Several factors were influential in the downturn in the political sphere, with two of particular note. The first was the attempted coup on 22 June 2019 in Amhara Region during which the President of Amhara Region and the Chief of the General Staff of the Ethiopian National Defence Force were assassinated in coordinated attacks. Though the coup attempt took place in Amhara Region, the political ramifications spread across Ethiopia with the political space that had been opened between the government and opposition beginning at this time to close, as the government openly took steps to repress the opposition, media, and dissent.

The second important event was the death of an Oromo cultural icon in 2020 which led to wide-spread protests in Oromia Region and Addis Ababa. Hachalu Hundessa was a popular Oromo singer who at the age of 17 had been imprisoned for 5 years in 2003 for participating in protests. Following the release of his first album he emerged as a powerful political voice and his songs were the soundtrack to the wave of anti-government protests that led to the downfall of Prime Minister Hailemariam in 2018. Hachalu Hundessa was shot dead on 29 June 2020 in Addis Ababa and over the following days more than 100 people were killed in protests held in the capital and in Oromia Region. In response to the protests the Ethiopian government renewed restrictions on individual rights, and its use of repressive tools in the ensuing crackdown, including arbitrarily arresting its citizens and shutting down the internet, echoed tactics employed by the previous EPRDF government. A later investigation undertaken by the Ethiopian Human Rights Commission identified over 9,000 arrests arising from the disturbances.

Federal and regional elections were held in June 2021. Voting was delayed in 111 of the 547 federal constituencies with the National Election Board of Ethiopia confirming that voting in the majority of the outstanding constituencies, including those situated in four zones in Oromia Region, would take place at a later date. Security concerns underpinned the delay. The partial results of the federal election were announced on 10 July 2021 with the Prime Minister’s Prosperity Party winning 410 seats out of the 436 contested. Voter turnout was just over 90% among the more than 37 million people registered to vote. The OLF did not contest either the federal or regional elections, citing the arrests of leaders and members of the party, as well as the closure of 108 of its offices, as having depopulated the party and deprived it of the ability to organise for the elections.

Oromia Region is the largest of the ten regional states by size and population in Ethiopia. In 2007, the most recent census conducted in Ethiopia established that it had a population of 27.1 million and it is presently estimated to have a population in the region of 38 million. Whilst most Oromo reside in Oromia Region, which surrounds the federally administered capital Addis Ababa, there are significant Oromo communities residing in Addis Ababa, Amhara Region and Southern Nations, Nationalities and Peoples’ Region.

Historically the Oromo never formed a single state but were organised in small societies of clans and villages. During the last quarter of the 19th century, the Amhara-dominated Ethiopian Empire expanded to the south, tripling its territory. During such time much of what is now Oromia Region was conquered and forcibly incorporated into the Empire. Oromo suffered exclusion, with land expropriated and institutions suppressed. There were regular efforts to forcibly assimilate Oromo and the use of the indigenous language, Afaan Oromoo, was banned in Ethiopia, including in political life and schools, from 1941 until 1991, as part of an assimilationist policy that identified the speaking of Amharic as being ‘Ethiopian’. Many nationalist Oromo identify a long, difficult and often antagonistic relationship with the Ethiopian State, with their level of political and economic influence being incommensurate to their numerical size.

Since the establishment of Oromia Region in 1992, the eight State Presidents have been members of the ODPO or its successor parties the OPD and the Prosperity Party. In the 2021 regional election the Prosperity Party won all the contested seats - 513 – with 26 seats expected to be contested later subject to improvement in the security situation.

The OLF was formed in 1973 and seeks to establish for the Oromo people “the inalienable right to national self-determination and to terminate a century of oppression and exploitation.” Whilst self-determination remains the party’s fundamental objective, there is presently no internal consensus as to whether it should be exercised as an independent Oromia, or as a political union or federation with other nations that presently form Ethiopia.

Dawud Ibsa has led the party as chairman since 1999. The party is presently subject to a debilitating power struggle between two factions caused, in part, by Dawud Ibsa’s decision that the OLF would not contest the 2021 federal and regional elections.

In the latter years of the 1974 to 1991 civil war, the OLF forged a loose alliance with the TPLF, but they never formally affiliated and regarded each other with suspicion, which was exacerbated upon the TPLF supporting the creation of the OPDO. In 1991, the OLF joined the TPLF-led transitional government, but its leadership became convinced that it would not be allowed to compete fairly against the OPDO in the 1992 elections. Relations with the EPRDF degenerated into open conflict and OLF ministers serving in the transitional government withdrew and left the country. Soon afterwards EPRDF military forces captured thousands of OLF fighters and drove the OLF out of the country. The party’s leadership was subsequently divided between Eritrea, Europe and the United States which led to repeated splintering and the establishment of rival parties.

Despite its defeat and exile, leading to a long absence from the domestic political scene, the OLF retained its status as a symbol of Oromo nationalism. From 1992 onwards it waged an armed struggle in Ethiopia, accepting military training and assistance from Eritrea.

The OLF declared a unilateral temporary ceasefire on 12 July 2018 and on 7 August 2018 the OLF and the Ethiopian government signed a peace deal following talks in Asmara, Eritrea. They agreed to reconciliation and to form a joint committee overseeing the implementation of the agreement. In September 2018 the OLF leadership returned to Addis Ababa before a crowd of several hundred thousand people and soon afterwards some returnees took up positions offered by the Oromia Region government. In October 2018 the OLF confirmed that it was working on disarming its soldiers, though only 1500 had been disarmed by that date.

By the summer of 2019, after a coup attempt in Amhara Region, the democratic space began to be tightened, with federal and regional authorities reverting to repressive methods in order to maintain law and order. Both federal and regional authorities regularly used significant restrictive measures to address bouts of public violence, often political in nature. Such methods included significant efforts to curb political opposition, with the adverse interest of the security forces directed towards the OLF. During the crackdown after the assassination of Hachalu Hundessa, many members and supporters of the OLF were arrested, accused of orchestrating or enacting the violence and subjected to lengthy detention. The authorities replicated tactics commonly used in the EPRDF era by arresting OLF leaders, members and supporters, detaining many for extended periods without bringing them to court, and re-arresting others who entered the criminal justice system and were released by courts

The authorities have, on several occasions, imposed restrictions on the personal movements of the OLF chairman, Dawud Ibsa, amounting to house arrest. The first occasion was from 17 July 2020 following the murder of Hachalu Hundessa. He was released on 31 July 2020. On 12 October 2020, he was giving a media briefing at his home in respect of the party’s proposal that a National Transitional Government of Oromia be established. Security forces attended and interrupted the meeting. Journalists who attended the meeting were arrested, as were several other attendees. A significant number of uniformed men surrounded the residence barring entry and exit. On 2 April 2021 Dawub Ibsa was placed under house arrest and the security guards previously assigned by the government to protect him were removed. From 3 May 2021 he was held incommunicado when his house was raided by armed security forces. His computers and telephones were confiscated. On 15 June 2021 Amnesty International wrote a letter addressed to the Minister of Peace calling for his release and observing, “There is therefore serious concern over Dawud Ibsa’s wellbeing as the food and other essential items in the house have either run out or are close to doing so.” Dawub Ibsa remains under house arrest.

Several senior members of the OLF have been detained. Colonel Gemechu Ayana, a member of the OLF’s central committee, was arrested on 17 January 2019. In September 2019, he was charged along with seventeen others in relation to terrorism offences. Following his acquittal in May 2021 heavily armed persons wearing the uniform of the federal police attended Kalinto prison where the thirteen defendants were awaiting the processing of their release and took them away to an unknown location. The deputy attorney general informed the BBC that the prisoners were not under the custody of the federal police commission. Colonel Gemechu Ayana had previously accused the authorities of torture and compared his solitary confinement in a dark room as being held in a gulag. He remains in detention, his location unknown.

The Oromia Region police are engaged in the cyclical practice of arresting, releasing and rearresting OLF members and supporters, and have done so after courts have ordered their release. Two OLF members were arrested in June 2020 and detained at separate detention centres. They were charged with terrorism and granted bail by the Oromia Supreme Court in November 2020. They were rearrested later that month when they attended court. The Supreme Court dismissed the charges against the men in December 2020, but the Oromia Region police did not comply with the ruling and kept the men at various police stations over time. The Oromia Supreme Court ordered the commissioner of the Oromia Region police to appear before it in March 2021 and explain why there had been non-compliance with its order of December 2020. The commissioner failed to attend the hearing and sent no representative. The Oromia Supreme Court ordered the release of the men, who were re-arrested as they left the court premises and taken to a detention centre.

Thousands of detainees from all over Oromia Region have been transferred to rehabilitation centres located in military camps where they are forced to undergo physical training and compulsory education, the latter advancing government perspectives. Detainees are required to make incriminating statements during group sessions. The respondent’s Fact-Finding Report notes the absence of due process for those detained in these military camps: persons being held without charge; delay or failure to take those charged to court; and a lack of access to family or lawyers. The political detainees are identified as “OLF supporters, members, committee members, central committee members and even OLF affiliated non-members.” The report references the cyclical nature of arrest, release and re-arrest adopted in respect of these camps, accompanied by economic exploitation.

The OLF’s party machinery has also been targeted. In August 2020 the party’s Addis Ababa headquarters was closed by the police, with twenty-four members of the party arrested. The building remains guarded by police. Branch offices elsewhere in the capital and Oromia Region have closed at the order of the authorities.

The pressure placed upon the OLF by the authorities has enjoyed some success. First and foremost, the party did not contest the federal and regional elections in 2021, thereby denying the electorate the opportunity to cast votes for the senior Oromo nationalist party. Further, the pressure contributed to the enlarging of existing divisions within the party. The OLF has long been a fractured organisation, not only in respect of its relations with its former armed wing, but also consequent to strong disagreements within the party as to how it should move forward, coupled with significant personality differences. Against the backdrop of an upsurge in arrests and detention of its members, the fractured nature of the OLF’s leadership led to a significant dispute arising between Dawud Ibsa and deputy chairman Ararso Biqila resulting in both asserting that they run the party.

Soon after the establishment of the OLF, it adopted armed Oromo units previously active in the Chercher Mountains as its military wing: the Oromo Liberation Army (OLA). From 1992 onwards the exiled OLF waged an armed struggle in Ethiopia through the OLA by means of guerrilla warfare. To many observers such military actions were largely ineffectual and provided no serious military threat to the Ethiopian government. However, the OLA’s military actions led to the Ethiopian authorities designating the OLF as a terrorist organisation in June 2011.

Armed members of the OLA returned to Ethiopia in September 2018 following the August peace agreement and committed to laying down arms. Integration and disarmament proved in many cases to be unsuccessful. The OLA remained its own security force, with its own leadership and strongholds. Years of unrest weakened regional government control in areas of Oromia Region such as Welega and Guji. Upon the return of the OLF and OLA to Ethiopia in 2018, returnees stepped into the security vacuum in these areas, sometimes working with the police to enforce order. However, there were accusations that the regional government had reneged upon promises to employ OLA fighters as police officers and were singling them out for arrest and beatings. In turn, the regional government accused the OLA of keeping their weapons. By late 2018, members of the OLA had returned to the forests and were killing officials and attacking army convoys. In 2019 the federal government reported that the national air force was bombing OLA training camps.

In April 2019 the OLA separated from the OLF, issuing a statement detailing that it no longer had any relationship with the party or its leadership. The OLA stated that despite having previously agreed to a ceasefire in 2018, the government had continued to arrest its members and wage war upon it. It accused the government of failing to abide by the ceasefire agreement and recommenced military activity in Oromia Region. The authorities assert that the OLA is also active in Amhara Region.

The extent and nature of separation between the political and military wings continues to be questioned. The Ethiopian and Oromia Region governments regularly refer to the breakaway armed group as ‘OLF-Shene’ (or OLF-Shane), not as the OLA, seeking for public consumption to identify continuing close links between the OLF and the ‘terrorist’ OLA. However, in recent times the OLA has been referred to pejoratively by the authorities simply as ‘Shene’. The government opted to use ‘Shene’ alone in the Parliamentary resolution of May 2021 designating the OLA to be a terrorist organisation.

The number of fighters and technical support under OLA command is presently unverified. Most observers refer to numbers as being in the low thousands.

Consequent to OLA activity, command posts – committees run by military personnel - have been established in various zones of Oromia Region, operating under a declared state of emergency and resulting in administrative rule by the Ethiopian National Defence Force. Their creation is confirmation that the federal government considers regional and local authorities to have failed in guaranteeing the security situation. Such zones include Borena, East Guji and West Guji in the south of the Region and East Welega, Horo Guduru Welega, Kelam Welega and West Welega in the west. The aim of the command posts is to coordinate the operations of federal and regional security forces against the OLA.

In its May 2020 report Beyond Law Enforcement, Amnesty International identifies the command posts in East Guji and West Guji as conducting multiple arbitrary arrests and detention of people alleged to be supporting, feeding, and sharing intelligence with the OLA. The report details the extrajudicial killings of thirty-nine people, three of whom were in security force custody.

There are reliable reports of the OLA committing grave human rights violations in Oromia Region, including targeting and killing minorities such as Amhara, villages subjected to plunder with cattle stolen accompanied by houses being set on fire, Christian religious sites being attacked and looted, and the targeted murder of bus passengers. The OLA denies its involvement in such attacks. The authorities also accuse the OLA of engaging in assassination, with targeted killings of numerous local administrators. There have also been regular reports of deaths consequent to OLA ambushes. The decision to attack government officials and police officers in small towns and villages forms part of a strategy to make areas of Oromia Region ungovernable for the federal and regional governments. The OLA has claimed responsibility for some deaths on social media, though it has also engaged in correspondence with the Addis Standard magazine addressing allegations made against it and declaring that “our troops face stiff penalties for killing civilians; there is no tolerance for such acts.”

The appellant’s written case was that the decision in MB (OLF and MTA – risk) should not be departed from, there being insufficient durable change in circumstances existing in Ethiopia to displace the risk factors set out in the country guidance.

The appellant placed reliance upon the Amnesty International letter, dated 9 November 2020, which details that despite the encouraging signs in the early months of Abiy Ahmed’s Premiership, “which, along with many others, [Amnesty International] praised at the time, we are increasingly concerned at what appears to be a downward spiral for human rights in the country.” The letter observes, “it is increasingly apparent that the security apparatus has used the rise of a relatively small OLA as a pretext for a widespread crackdown on supporters and perceived supporters of Oromo nationalism in general and the OLF in particular, who are viewed as a threat to the territorial integrity of the state and an obstacle to the current government and its agenda.” Regional and federal security forces are identified to have overseen a campaign of mass arbitrary arrests and detentions; the routine use of torture and other serious ill-treatment; and the use of extrajudicial executions and enforced disappearances in the Oromia region.

In its ‘Beyond law enforcement’ report Amnesty International conducted research into communal violence that took place in Oromia Region in 2019. Following investigations conducted in the zones of East Guji and West Guji Amnesty International concluded that members of the Ethiopian National Defence Force, regional police special forces, local administration officials and allied militia armed youth and vigilante groups carried out serious human rights violations. The report’s introduction observes that “while initial first steps had been taken towards improving the human rights environment in the country, a persistence of old-style patterns of violence perpetrated by the security forces threatens to derail sustained long-term gain.” In its conclusion, the report’s authors state:

Detainees held in police stations and Sanqale Police Training College were identified by the report as being held in dire detention conditions characterised by, among others, lack of sufficient food, bedding, and outdoor activities.

Before the First-tier Tribunal the respondent submitted that following the appointment of Prime Minister Abiy in April 2018 members and supporters of the OLF no longer possess a well-founded fear of persecution at the present time because the government they feared when they left Ethiopia had been replaced by one that had reconciled with the OLF. Express reliance was placed by the respondent upon her CPIN ‘Ethiopia: Opposition to the government’ (July 2020) (‘the Opposition CPIN’) where the country guidance in MB (OLF and MTA – risk) is noted, but it is observed at para. 2.4.22:

The respondent’s view as to the present situation in Ethiopia and the guidance in MB (OLF and MTA – risk) is set out at paras. 2.4.26 and 2.4.27 of the Opposition CPIN:

Ms. Bayoumi confirmed before us that the Response constituted the high point of the respondent’s case. In setting out the respondent’s initial position, we were taken to section 2.2. which is entitled ‘legal position and state treatment’, which in turn references paras. 3.1-3.3, and 3.6-3.8 of the DFAT Report. The conclusions drawn from the DFAT Report are that ethnically-motivated societal violence is rare though it has increased since 2018; official discrimination based on race and/or ethnicity is rare; Oromo influence at the federal level has expanded significantly since the accession of Prime Minister Abiy; Oromo form the single largest ethnic group in the federal cabinet; Oromo political prisoners have been released; and whilst there was widespread violence against - and detention of – protesters across Oromia Region between 2014 and 2018, this was not ethnically motivated but simply reflected the then federal government’s sensitivity to political opposition.

In addition to the paragraphs identified above, paras. 4.1.3, 4.2.15 and 5.4.1 of the Response reference the following paragraphs from the DFAT Report:

Ms. Bayoumi expressly requested that we uphold the conclusion at para. 3.8 of the DFAT Report:

Ms. Bayoumi accepted that there were identifiable problems of ethnic tension and resulting violence developing in Ethiopia at the time of the hearing before us. However, she contended that the present evidence does not establish that anyone with a connection to the OLF is at real risk of being targeted by the federal or regional authorities. She confirmed the respondent’s position to be that only if a person holds a high profile within the party will they be subjected to the adverse attention of the authorities. She drew our attention to paras. 4.2.11 and 4.2.13 of the Response, detailing an OLF press release of 20 December 2020 addressing recent arrests of OLF leaders, members and journalists, and subsequent coverage of the press release by an Ethiopian newspaper as evidencing the respondent’s position that only the senior echelons of the party are targeted by the authorities.

Ms. Bayoumi asked us to note that the OLF remains a lawful political party and whilst it may face administrative and organisational difficulties at the hands of the authorities, this alone did not amount to persecution.

She also directed us to paras. 3.3 and 3.4 of the DFAT Report which states that inter-ethnic relations have deteriorated since 2018 but concludes that such ethnic discrimination as occurs is predominantly in the form of positive discrimination. Consequently, she asked us to consider the ongoing violence with its attendant arrests and detentions as flowing from inter-ethnic tensions, and not from the targeting of the nationalist political opposition.

Ms. Bayoumi placed reliance upon paras. 4.3.2 to 4.3.5 of the Response, where reference was made to the DFAT Report, a report from Human Rights Watch and articles from the BBC and the Addis Standard addressing the activities of the OLA, or OLF-Shene, in western and southern Oromia Region. She informed us that this section of the Response clearly illustrated the distinction now to be drawn between, on the one hand, the OLF and, on the other, the OLA along with ‘other OLF factions’, the latter having yet to disarm and engaging in armed clashes with federal and regional forces. She contended that at the present time it is only individuals who are part of, or who have links to the OLA, or OLF-Shene, including those engaged in criminal activities and clashes with government forces, that are likely to be of interest to the Ethiopian authorities.

Ms. Bayoumi relied upon paras 4.1.2 and 4.1.3 of the Response, which in turn referenced the DFAT Report, detailing that there was freedom of political expression in Ethiopia and tolerance of political dissent.

Consequent to questions from the panel Ms. Bayoumi conceded, on instructions, that the significant difference in opinion proffered by sources relied upon in the Response as to the present risk for OLF members and supporters in Ethiopia meant that the respondent was unable to produce cogent evidence capable of justifying departure from MB (OLF and MTA – risk) on the grounds advanced. Therefore, by the conclusion of the hearing before this Tribunal the respondent had resiled from her stated position as advanced both in writing and at the outset of the hearing.

We take this opportunity to say that Ms. Bayoumi presented the respondent’s case with considerable skill, but we agree that the concession was the only appropriate course open to the respondent upon careful consideration of the objective and expert evidence before us and so we allowed the appellant’s appeal at the conclusion of the hearing. We give our reasons below.

As we note above, for the purposes of our decision we have only found it necessary to refer to a small number of documents relied upon by the parties, the Amnesty International documents to which we have referred, the CPINs, the Fact-Finding Report and the Response.

CPINs are published by the respondent in respect of over 40 countries identified as the most common countries of origin of persons seeking asylum in the United Kingdom. They evidence the respondent’s position at the date of publication on identified issues concerned with protection. Several are themed and at present there are three themed CPINs concerned with Ethiopia: the Opposition CPIN, ‘Ethiopia: Oromos’ (October 2019) (‘the Oromos CPIN’) and ‘Ethiopia: Actors of protection’ (September 2020) (‘the Actors of Protection CPIN’). A fourth CPIN is concerned with general background information and internal relocation (September 2020). Each CPIN provides country information as well as policy analysis drawn from the country information and operational guidance providing direction on deciding claims. Our summary of the country background situation above has drawn significantly on the source material set out in these documents.

COI reports, including the country information element of CPINs, whether originating from this country or from European countries such as Denmark, the Netherlands, Norway and Sweden, are not themselves evidence but identify the position adopted by a government department. They serve two other functions. They set out, in summary form, evidence from other sources. To that extent they might be secondary, or even tertiary, sources of information. They may also serve to reflect the policy position of the relevant government.

In LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 the Upper Tribunal held that the weight to be given to expert evidence (individual or country) and country background evidence is dependent upon the quality of the raw data from which it is drawn and the quality of the filtering process to which that data has been subjected. The Tribunal observed at para. 43 that while the evidence upon which COI reports rely is filtered, it is – importantly - sourced. Consequently, these reports are to be treated in the same way as any other background evidence. We adopt the same approach to the country information element of CPINs.

The Fact-Finding Report was prepared following a visit to Ethiopia by three officials from the respondent’s Country Policy and Information Team (CPIT) with support from the British Embassy in Addis Ababa between 16 and 20 September 2019. The team was based in Addis Ababa and visited Ambo in Oromia Region. The purpose of the mission was identified as gathering accurate and up-to-date information from a range of sources about the political situation in the country since April 2018 and the changes that had occurred under Prime Minister Abiy. As the written conclusion of an information gathering visit to Ethiopia the Fact-Finding Report offers illumination as to a snapshot in time, providing information as to knowledge and perceptions held by persons on the ground, but the inherent nature of a fact-finding mission report results in it being deleteriously affected by material changes in the country situation post-dating the conclusion of the mission.

It was no doubt developments on the ground in Ethiopia that led Ms. Bayoumi to place the greatest reliance on the Response, the most recent of the documents she relied upon. The document expressly identifies its focus as being upon events occurring after the publishing of the Oromos CPIN in October 2019. It runs to twenty-two pages and is divided into two sections: (i) Is Ethiopia safe for Oromos to return given recent unrest and protests? and (ii) Is there a risk to previously detained OLF supporters and those who have protested abroad? The bibliography cites twenty-seven sources with a further five sources consulted but not cited. Several sources are media outlets: including the BBC, Addis Standard, Reuters and The Economist. Human Rights Watch’s World Report of 2021 is cited as a source of information, as is one press release from Amnesty International. The Response cites COI reports originating from the Norwegian Country of Origin Information Centre (Landinfo) and the Swedish Migration Agency (Migrationsverket). However, the most cited source is the DFAT Report, with express reference to nineteen paragraphs of this report as well as fifteen references in the fifty-two footnotes. The BBC follows with four news reports referenced in eight footnotes.

In considering the DFAT Report we note that it is a statement of position, not evidence, as confirmed by the self-declaration that it is the department’s ‘best judgment and assessment’ as to a country overview for use in protection status determinations. Consequently, we consider it appropriate to assess the methodology adopted by the report’s authors identified at para. 1.4:

News sources are not named. Beyond general reference to NGOs as sources, no detail is provided as to which NGO press releases, news articles or reports have been considered. No detail is provided as to the substance, title and age of country of origin and international organisation information relied upon. Sources are rarely identified in the body of the report even in respect of uncontroversial matters. There are no footnotes.

The European Court of Human Rights in Sufi and Elmi v. United Kingdom (2012) 54 E.H.R.R. 9, at [230]-[234], expressed concern as to the reliance upon unidentified sources in the preparation of COI reports. Whilst it noted that there may be legitimate security concerns for sources who wish to remain anonymous, the Strasbourg Court held that an absence of information about the nature of sources’ operations in the relevant area results in it being virtually impossible for a court or tribunal to assess their reliability unless the information provided accords with other, verifiable, information.

We note the recent observation by this Tribunal in KK and RS (Sur place activities; risk) Sri Lanka CG [2021] UKUT 0130 (IAC), at [302]:

The DFAT Report relied upon by the respondent in this matter gives rise to the same concerns identified by the Tribunal in KK and RS. We consider the methodology adopted by DFAT to be unsatisfactory for the reasons expressed in KK and RS. We are unable to adequately assess the reliability of the report’s sources, and this adversely impacts upon the weight that we can properly place upon the conclusions reached unless supported by other corroborative evidence.

The merits of the positive conclusions drawn in the DFAT Report are properly to be assessed by our considering the political situation existing in Ethiopia as at the date of its publication in August 2020. At that time the chairman of the OLF, Dawud Ibsa, had been subjected to house arrest; several leading members of the party had been arrested, detained and in some cases held for several months without charge; and several thousand people had been arrested in June and July 2020 following violent disturbances in Oromia Region and Addis Ababa, many of whom were - or were suspected to be - members and supporters of the OLF. Many thousands were to remain in detention for long periods of time in poor detention conditions or were subjected to cyclical arrest, release and re-arrest. Re-education was conducted upon detainees held in military camps. Further, the OLF was subject to significant obstruction in respect of opening and running party offices, including the occupation of its office in Addis Ababa by police officers on 1 August 2020 and the resulting bar upon party officials and members from entering the premises. Such circumstances are either given limited weight in the report or simply not referenced.

We conclude that the optimistic assessment adopted by DFAT of the situation for the OLF in Ethiopia was one that failed to adequately engage with significant, and adverse, developments then arising in the country. We have some sympathy for the report’s authors as its publication coincided with fast moving regression in the political space existing in Ethiopia consequent to events in June and July 2020 and an accompanying increase in the obstruction of the OLF’s on-the-ground activities. Such regression has become clearer with the passage of time but there were significant, adverse indicators as to the deterioration in the political sphere for the optimistic conclusion drawn by the report to be difficult to justify at the date of publication. Our concerns further impact upon the weight that can properly be given to the report.

We are satisfied that the considerable deterioration in the government’s rapprochement with the OLF was much clearer at the date of the publication of the respondent’s Response in February 2021. We conclude that the respondent should have been mindful of the adverse targeting of the OLF by both federal and regional authorities at the time of the publication of the DFAT Report, as well as the continuation of such targeting in the months afterwards, when considering the weight to place upon the report’s conclusions.

We are satisfied that the optimistic conclusions advanced by the DFAT Report could not properly be relied upon by the date of the publication of the Response. We note that Ms. Bayoumi candidly, and quite correctly, drew our attention to para. 4.1.4 of the Response, which considered a report issued by Landinfo - ‘Politisk utvikling og menneskerettighetssituasjon i 2019- 2020, med fokus på Oromia-regionen' (January 2021):

We further note the reference at para. 4.2.1 of the Response to a May 2020 information report authored by Migrationsverket, ‘Etiopien - Säkerhetsläget, politisk utveckling och utsatta grupper’ (May 2020), detailing, inter alia, that consequent to a conflict between the federal army and the OLA in parts of Oromia Region, “This has led to arrests of OLF affiliates under current command posts in Oromia, and members of the group can be considered at risk of mistreatment and apprehension by local, regional and federal authorities.” Whilst noting that this reference to the Migrationsverket report is concerned solely with certain zones in Oromia Region, we conclude that neither Landinfo nor Migrationsverket outwardly project the same confidence as the respondent as to there being a positive change in the situation on the ground.

The Dutch Ministry of Affairs COI Report on Ethiopia (February 2021) details at para. 3.2.4 that “the situation has deteriorated recently and that practices such as the arbitrary arrest of (alleged) supporters of the OLF are again the rule rather than the exception.” The same paragraph further notes, “In March 2019, more than 1,000 people had been arrested for alleged links to the OLF, according to Ethiopia Insight. A year later, in February 2020, the same news channel cited sources who spoke of the arrest of between 5,000 and 10,000 (alleged) members of the OLF since July 2019. The youngest detainee known to Ethiopia Insight was 13 years old and the oldest 76.”

At its heart, the decision of the First-tier Tribunal in this matter was to adopt the position of the optimists who consider the progression of the political reforms initiated by Prime Minister Abiy in 2018 to be on-going and succeeding. The respondent had successfully persuaded that Tribunal to reject the more pessimistic view that the Ethiopian government has reverted to its authoritarian and repressive past. However, save for the optimistic conclusions reached in the DFAT Report, the expert and objective evidence points to there being significant regression in both the federal and regional authorities conduct towards the OLF. Whilst the party continues to enjoy lawful status, its ability to operate is being significantly impeded by the arrest of various ranks of its leadership and general membership. Ms. Bayoumi was correct to accept that the respondent was unable to rebut the evidential presumption placed upon her.

Before concluding, it is appropriate that we address one issue that did arise before us: what is the meaning to be ascribed to the term ‘significant history’ which appears in the country guidance?

The requirement that a claimant prove a significant history of membership or support for the OLF can be traced to the 2005 decision in HA (OLF Members and sympathisers – risk) Ethiopia where it appears, for the first time, in the penultimate paragraph. No elaboration is given as to the meaning of ‘significant history’, but we note that the Tribunal accepted the evidence set out in a Country Information and Policy Unit (CIPU) report of April 2004 as to the arbitrary detention and ill-treatment of ‘thousands of OLF members and sympathisers’. In 2007, the evidential finding in HA was converted into formal guidance by the Tribunal in MB (OLF and MTA – risk). Again, the term is not defined. In that case the Tribunal accepted, without qualification, the evidence of country expert Dr Roy Love. It was his evidence that the modus operandi of the Ethiopian security forces was to arrest large numbers of civilians, accusing them of OLF involvement, only to release, then re-arrest in a cycle of harassment and ill-treatment. Others were kept in arbitrary detention for prolonged periods, often without hearing or cause shown, sometimes incommunicado. The Tribunal also considered a range of evidence identifying the use of torture by the authorities. We note that this accords with Prime Minister Abiy’s subsequent admission to Parliament that the EPRDF engaged, for many years, in the systemic use of torture against perceived opponents. This was the context in which the previous Tribunal, whose guidance we are invited to uphold, employed the term.

We do not find the evidence before us to be materially different today. As the evidence outlined in the CPINs illustrate, many thousands continue to be arrested in sweeps, such as that which occurred in the aftermath of the murder of Hachalu Hundessa. These civilians are then subject to the same cycle of arrest/release/re-arrest as that identified by Dr Love over 15 years ago. Whilst it cannot be said that any level of support for the OLF will give rise to a well-founded fear of persecution, it cannot be said that ‘significant’ must denote a high-level or prominent connection to the party. We note Mr. Southerden’s evidence on behalf of Amnesty International, consistent with other evidence placed before us, that “both formal arrest warrants and institutional as well as personal memory of individual officers plays a major role in determining who is perceived as possessing an anti-government agenda and therefore subject to suspicion.” This local, and informal, approach is the context in which we must place the numbers of those arrested. We therefore conclude that ‘significant’ should not be read as necessarily denoting a very high level of involvement or support. Rather, it relates to suspicion being established that a person is perceived by the authorities as possessing an anti-government agenda. This is a fact sensitive assessment.

In broad terms, MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030 still accurately reflects the situation facing members and supporters of the OLF if returned to Ethiopia. However, in material respects, it is appropriate to clarify and supplement the existing guidance.

We proceed to consider the appellant’s appeal, having considered the evidence relied upon by both parties. The parties agreed as to the appellant’s personal history.

The appellant is a national of Ethiopia, ethnically Oromo and presently aged 21. He hails from a farming family residing in the Oromia Region. His father is a supporter of the OLF. The Ethiopian authorities attended the family home twice in 2013 looking for the appellant’s father but he was not at home on either occasion. His absence led to the property being ransacked. Eventually the appellant’s father was arrested by the authorities in February 2014, and he was detained in prison for some 22 months before being transferred to hospital in 2016, consequent to injuries suffered through torture.

When the appellant was aged 14, an OLF flag was found at his school, and this led to the authorities rounding up students and beating them. As a result of his beating the appellant sustained an injury to his right eye which led to impaired vision. He was subsequently arrested after his beating and detained in prison for 10 days. To secure his release he was required to sign a declaration that he would not in future be involved with the OLF.

Following his release from prison the appellant attended OLF meetings and distributed leaflets on the party’s behalf. In February 2016, aged 15, he attended a demonstration seeking greater rights for the Oromo people. He was again arrested and detained for 28 days. Whilst in detention he was beaten on four separation occasions leaving him with scarring. He was released following the payment of a bribe by his uncle on the understanding that he was to be listed as an escapee. He subsequently left Ethiopia.

The appellant left Ethiopia on 25 March 2016 and travelled to this country via Libya, Italy, Germany and France. He clandestinely arrived in the United Kingdom on 8 September 2017. He attended a police station on the same date and sought international protection. He was accepted by the respondent as being a minor soon after arriving in this country and was placed in the care of a local authority.

The appellant attended a screening interview on 25 September 2017. In preparation for a substantive interview, he served a witness statement dated 7 December 2017 succinctly identifying: (i) his personal and family connection to the then illegal OLF; (ii) his father’s arrest and detention; (iii) his two detentions as a minor, in respect of Oromo nationalist activity, with attendant serious ill-treatment; and (iv) the use of bribery to secure his release from his second detention and his being recorded as an escapee.

The respondent conducted an asylum interview with the appellant on 16 March 2018 during which the appellant remained consistent as to his personal history.

The appellant was referred to the Competent Authority as a potential victim of trafficking. By a decision dated 27 February 2019 the Competent Authority concluded that the appellant is a victim of human trafficking.

The respondent refused the appellant’s application for international protection by a decision dated 2 May 2019. She accepted that the appellant was ethnically Oromo and a supporter of the OLF. However, she did not accept the appellant’s stated history of arrest and detention. In respect of the appellant’s fear of persecution upon return to Ethiopia consequent to both his and his family’s support of the OLF, the respondent noted that Oromo political prisoners were being released in Ethiopia, the OLF was no longer banned, and its leader had returned to Ethiopia.

By its decision of 18 July 2019, the First-tier Tribunal (Judge of the First-tier Tribunal Obhi) found the appellant to be credible as to his personal history but dismissed his appeal. Having considered the Danish Immigration Service Report ‘Ethiopia: Political situation and treatment of opposition’, relied upon by the respondent, Judge Obhi concluded, at [34]:

On 27 August 2019 the appellant was granted permission to appeal to this Tribunal by Judge of the First-tier Tribunal Macdonald.

By a decision sent to the parties on 10 October 2019 Judge O’Callaghan found a material error of law in the decision of the First-tier Tribunal and set it aside, with a direction that the decision was to be remade by this Tribunal. Judge O’Callaghan concluded that the First-tier Tribunal had materially erred in law by its failure to consider relevant country guidance, namely MB (OLF and MTA – risk).

We find that the appellant is properly to be regarded as a person with a known OLF family history. He is a known supporter of the party. He has a history of arrest, detention and torture consequent to his support of the party. He was released from prison by means of a bribe and is listed as an escapee. We conclude that the appellant’s removal from this country to Ethiopia would expose him to a real risk of persecution within the meaning of the Refugee Convention and ill-treatment contrary to article 3 ECHR.

The First-tier Tribunal issued an anonymity order but provided no reasoning as to why the appellant’s private life rights protected by article 8 ECHR outweighed the public interest in open justice, as protected by article 10 ECHR.

Given the importance of open justice, the general principle is that an anonymity order should only be made by this Chamber of the Upper Tribunal to the extent that the law requires it, or it is necessary to do so.

Para. 13 of Guidance Note 2013 No. 1: Anonymity Orders (30 September 2013) confirms that an anonymity order will be made in all appeals raising asylum or other protection claims, ”unless a UT judge decides it is unnecessary”.

In re Guardian News and Media Ltd and Others [2010] UKC 1, [2010] 2 A.C. 697, the Supreme Court held that, where both articles 8 and 10 of the ECHR are in play, it is for the court or tribunal to weigh the competing claims under each article. Since both article 8 and article 10 are qualified rights, the weight to be attached to the respective interests of the parties will depend on the facts.

The appellant has been found credible as to his personal history of persecution and has been successful on appeal. We are therefore satisfied that when weighing the extent of the interference with his privacy on the one hand against the general interest at issue on the other hand, the balance now tips in favour of the public interest in open justice. The appellant will not be returned to Ethiopia. It is not his case that the authorities are targeting his family in Ethiopia in pursuit of him. Indeed, his father has suffered detention and ill-treatment because of his own political activity. The publication of his name will not adversely affect either his family or himself.

We accordingly decide that the anonymity order made by the First-tier Tribunal should be lifted.

Observing that the respondent enjoys a right of appeal to the Court of Appeal against our decision under the 2008 Rules we impose a stay on our decision to lift the anonymity order, whereby the lifting will take effect ten working days after the Upper Tribunal has informed the parties of its decision on an application for permission to appeal, with liberty to the parties to request a continuation of the stay if there is an intention by the respondent to renew an appeal to the Court of Appeal on receipt of an adverse decision, if made, issued by this Tribunal.

Otherwise, if the respondent does not exercise her right of appeal within the time limit established by rule 44(3A), (3B)(a)(i) of the 2008 Rules the lifting will take place twenty working days after the sending of this decision to the parties.

Since our decision to lift the anonymity order is an ancillary decision made in relation to an appeal under section 82 of the 2002 Act, it is an excluded decision by reason of article 3(m) of the Appeals (Excluded Decisions) Order 2009 and, thus, challengeable only by means of judicial review.

By means of a decision sent to the parties on 10 October 2019 this Tribunal set aside the decision of the First-tier Tribunal promulgated on 18 July 2019 pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

The decision is re-made, and the appellant’s appeal is allowed on:

The anonymity order is lifted, subject for the stay on lifting identified at paras. 123 and 124 above.

Objective documentary evidence before the Upper Tribunal

Home Office Documents filed with the Upper Tribunal

Expert evidence filed with the Upper Tribunal

The appellant filed and served a letter authored by Tom Southerden on behalf of Amnesty International, dated 9 November 2020.

The latter is annexed to this decision, with the name of the appellant edited so as to prevent identification.