MB (OLF and MTA, risk) Ethiopia CG [2007] UKAIT 00030 (29 March 2007) [2007] UKIAT 00030

UKIAT

MB (OLF and MTA, risk) Ethiopia CG [2007] UKAIT 00030 (29 March 2007)

[2007] UKIAT 00030 · 2007-03-29

[1]MB (OLF and MTA – risk) Ethiopia CG

[2007] UKAIT 00030

ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 19 February 2007 Date Determination notified: 29 March 2007 Before SENIOR IMMIGRATION JUDGE LATTER SENIOR IMMIGRATION JUDGE P R LANE MRS J HOLT Between MB APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr R. Toal, Counsel, instructed by the Brighton Housing Trust For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer DETERMINATION AND REASONS(1) As at February 2007, the situation in Ethiopia is such that, in general:- (a) Oromo Liberation Front members and sympathisers; (b) persons perceived to be OLF members or sympathisers; and (c) members of the Maccaa Tulema Association; will, on return, be at real risk if they fall within the scope of paragraph (2) or (3) below.

(2) OLF members and sympathisers and those specifically perceived by the authorities to be such members or sympathisers will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement. So too will those who have a significant history, known to the authorities, of OLF membership or sympathy. Whether any such persons are to be excluded from recognition as refugees or from the grant of humanitarian protection by reason of armed activities may need to be addressed in particular cases.

(3) Given the proscription of the MTA and the current state of tension on the part of the Ethiopian authorities, the Tribunal considers that MTA members will also be at real risk on return if they have previously been arrested or detained on suspicion of MTA membership and/or of OLF membership or are known or suspected of membership of the MTA. Despite the banning of the MTA, the Tribunal does not consider that the evidence is such as to show a real risk where the extent of the authorities' knowledge or suspicion about an individual relates to something less than membership of the MTA. The appellant, a citizen of Ethiopia born on 12 December 1973, arrived in the United Kingdom with leave as a visitor on 20 June 1999. He claimed asylum on 14 July 1999. On 7 April 2004 the respondent refused to grant the appellant asylum and accordingly decided that he would not vary the appellant's leave to enter. The appellant appealed against that decision to an Adjudicator, Mr J Entwhistle, sitting at Hatton Cross, who, by a determination that followed a hearing on 11 August 2004, dismissed the appellant's appeal on both asylum and human rights grounds.

[2]On 12 November 2004 permission was granted to the appellant to appeal to the Immigration Appeal Tribunal against the Adjudicator's determination. On 4 April 2005 that grant of permission had effect as if the Asylum and Immigration Tribunal (which came into being on that day) had been ordered to reconsider the determination. The appellant's claim

[3]The nature of the appellant's claim was as follows. He was of Oromo ethnicity. He was born and grew up in the area of Addis Ababa where, according to the appellant, the dominant culture was Amhara. As he grew up, the appellant became interested in his Oromo culture. He would read newspapers produced by supporters of the Oromo Liberation Front (OLF). After university, he became a librarian with the Bako Agricultural Research Centre and was subsequently promoted to work at the headquarters of the Institute of Agricultural Research in Addis Ababa. In 1995 the appellant began work for Agri-Service, a non-governmental organisation, as a librarian, and in 1998 was promoted to be their Information Officer.

[4]In early 1997, the appellant started to attend monthly meetings of an Oromo self-help organisation, commonly called the Maccaa Tulema Association (MTA). The appellant said that the MTA promoted the cultural, linguistic, historical and political rights of the Oromo people, as well as raising awareness of their human rights situation. The MTA was founded in 1962. The appellant formally joined it on 18 January 1998.

[5]The appellant described himself as an active member of the MTA, albeit that he was not an office-holder of any sort. He paid his monthly subscriptions to the MTA and attended their monthly meetings in Addis Ababa, as well as attending other meetings held in connection with particular activities.

[6]One of the tasks assigned to the appellant by the MTA was to help to organise Oromo youth. A number of special meetings regarding that issue were held. These were arranged by the organiser of the group, LG. The appellant said that he was second-in-command to Mr G in organising Oromo youth. This work involved raising awareness of the OLF's objectives and attempting to persuade young people not to join the Oromo People's Democratic Organisation (OPDO), an organisation which (according to the respondent's COI report of November 2006) is opposed to the OLF and represents the Oromo people within the ruling Ethiopian People's Revolutionary Democratic Front (EPRDF).

[7]The appellant asserted that one of his tasks was to gather information about the Oromo and the OLF and to share that information with other members of the MTA. As an information technology professional, the appellant accordingly started to access information on the internet for the MTA. In 1997, when the appellant started doing this, internet access in Ethiopia was very limited and the appellant was the only person in the MTA who had such access. The appellant would go into his office on Saturdays and Sundays and use his work computer in order to download and print off OLF material. At that time, the appellant claimed that this was the only way in which information about the OLF could be obtained for other members of the MTA. The Ethiopian Government was asserting that the OLF had been destroyed and no longer existed. As a result, the Oromo people were, the appellant claimed, hungry for information about the OLF.

[8]The appellant said that his first problem with the Ethiopian authorities occurred in 1997, at a time when tension was high in Addis Ababa. The appellant was detained by the police in that city, taken to a police station and asked if he was a Somali.

[9]In 1998, the appellant was asked by the Chairman of the Kebele in his area to join the OPDO and to be on the Woreda Council as a member of the OPDO. The appellant said that the OPDO was an organisation formed by the Government, which was not a genuine Oromo organisation and whose views were essentially the opposite of those of the OLF. All its members worked for the Government. The leaders were not even Oromo but Amhara, albeit that they spoke the Oromo language.

[10]The appellant was unwilling to join the OPDO and did not attend any of their meetings. However, in order to maintain reasonable relations with the Kebele, the appellant undertook some desktop publishing for them.

[11]In October 1998 the appellant was detained by persons whom he took to be plain-clothes police officers, who took him to Woreda police station, where the appellant was asked why he had not gone to the OPDO meetings. The appellant gave the reply that he had been busy, as he did not consider that he could give the true reason. Asked to admit that he was a member of the OLF, the appellant said that he was a member of the MTA. He did this because the MTA was a legal organisation and the appellant did not consider that he would face problems by admitting that he was a member of it. However, as soon as he had said this, one of the officers started to beat, kick and slap the appellant. He was held for three days at the police station before being transferred to Region 14 Police Commission in Addis Ababa, where he was held for six weeks. Although not ill-treated whilst he was there, the appellant was interrogated about his membership with the MTA. After six weeks, the appellant was released on bail. The appellant ascribed this release to the intervention of a friend, who worked as a member of the police force. Amongst the conditions attached to the appellant's bail were a requirement to inform the police each time the appellant left Addis Ababa and a requirement to attend court on a particular day in February 1999. The appellant attended court on the due day, when he was simply given another date on which to attend again, namely 23 June 1999. The appellant believed that the authorities were waiting until they had some real evidence about the appellant's associations with the OLF.

[12]On 20 June 1999, the appellant travelled to the United Kingdom in order to attend a three-week workshop in web design at the University of Sussex. He was sent on the course by his employers. The appellant did not inform the police or the court that he was going to travel to the United Kingdom because he was unsure whether he would be allowed to do so, if he did so inform them. His intention was, on return to Ethiopia, to produce evidence that he had been away on the course, on the basis that that would be an adequate explanation for his failure to attend court on 23 June. The appellant did not consider that his failure to attend court would produce any big problem for him.

[13]However, in early July 1999, when the appellant spoke to his family and friends on the telephone, he was told that his cousin, a member of the MTA, had been arrested and that the cousin had been asked questions about the appellant. The cousin had been accused of membership of the OLF. On 13 July 1999, the appellant received a letter by fax from another cousin, who told the appellant that the situation in Addis Ababa was again deteriorating and that Oromos were being spied upon and kidnapped. This cousin told the appellant that there were rumours that the appellant had used his computer in order to collect and distribute information from the internet regarding the OLF and that the appellant had left Ethiopia in order to escape political problems. The appellant was told by his cousin that, as a result, the appellant's life would be in danger if he returned to Ethiopia. The cousin reminded the appellant of what happened to the appellant's uncle (the cousin's father) who had been an OLF candidate in 1992 and who, when the OLF withdrew from the elections, had had to flee from his home. Upon his return, the uncle was arrested, detained and ill-treated.

[14]In October 1999, the appellant heard from his other cousin, who had been detained, that the cousin was released after three months and had ceased his political activities. That cousin wrote to say he had heard that the appellant was in trouble for failing to report to the court and that there was a warrant out for his arrest. Via some Oromo people working in the local police station, the cousin managed to obtain the warrant, which was dated 18 October 1991 (Ethiopian calendar) or 26 June 1999 (European calendar). The warrant referred to failing to attend at court and also to charges of distributing writings and materials contrary to the Ethiopian constitution and of provoking people to violence. The appellant considered that, if the authorities had searched his office, they would have found documents such as minutes of MTA meetings and of articles and press releases which the appellant had printed off the OLF website. The appellant's suspicions in this regard were strengthened when he contacted a fellow employee, who told the appellant that their boss had told them all that "you don't know [the appellant]."

[15]On 18 April 2004, the individual, Mr G, to whom the appellant used to report in the MTA, had been arrested in Ethiopia. So had his family, although they were returned home the following morning. Amnesty International interviewed Mr G's son in the offices of the MTA on 19 April. Further senior officers of the MTA were arrested and detained in May 2004 and Amnesty International believed that they were prisoners of conscience.

[16]The Adjudicator did not place weight upon the letter received on 13 July 1999 from the cousin of the appellant. This letter is now to be found at pages 294 and 295 of the appellant's bundle. The letter was in general terms and did not, the Adjudicator found, explain how the cousin had come to know several of the matters set out by him. The letter also told the appellant information about his uncle and father, which the appellant would already have known.

[17]At paragraph 20(iii), the Adjudicator considered the arrest warrant. Although he placed little weight on this document he did, however, say this:- "The warrant gives very little information about the actual charges against the appellant and on what evidence this is based. However, it does refer to bringing this dangerous criminal to justice. The appellant had admitted that he was a member of the MTA and had supported the OLF, which was an illegal organisation. Therefore the appellant could expect to be prosecuted for this if he returned to Ethiopia but this would not amount to persecution."

[18]At paragraph 20(iv) of the determination, the Adjudicator did not find credible the evidence of the appellant to the effect that, since arriving in the United Kingdom, the Ethiopian authorities had obtained evidence about him which would make him liable to persecution, rather than prosecution, were he now to be returned. At paragraph 20(v), the Adjudicator repeated the finding that it was:- "unlikely that the appellant would be prosecuted if he was returned to Ethiopia but if he was for the activities he has already admitted then he would be subjected to the due process of law which would not amount to a breach of

Article 5 of the ECHR

and any ill-treatment in prison would not amount to a breach of Articles 2 and 3 or be a Convention reason for asylum." The grounds of appeal to the IAT

[19]The grounds of appeal to the Immigration Appeal Tribunal contended that the Adjudicator had made inconsistent findings at paragraph 20(iii) and 20(v), concerning the issue of whether the appellant could expect to be prosecuted on return to Ethiopia. The grounds also contended that the Adjudicator had failed to take account of the background evidence, in reaching conclusions that prosecution was unlikely; that any prosecution would not entail persecution or serious ill-treatment; and that the appellant would not otherwise be persecuted or treated in breach of his human rights. In particular, the grounds pointed out that the Adjudicator had had before him a report on the appellant from Dr Trevor Trueman, who opined that a person with the profile of the appellant "would almost certainly be detained on entry, interrogated, beaten and probably tortured. It is probable that he would spend many months or years in detention." The material errors of law in the Adjudicator's determination

[20]On 31 January 2006, the Tribunal (Senior Immigration Judge Perkins; Immigration Judge Aujla; Mrs B M Southwell) found that the determination of the Adjudicator contained a material error of law. The Tribunal's reasons were as follows:- "2 Before us Mr Ouseley conceded that the determination was wrong in law for the reasons identified in grounds 1 and 2 of the appeal. The Adjudicator made perverse findings and ignored evidence. However that concession did not lead to agreement about the proper disposal of the appeal. Mr Ouseley submitted that it should be reheard. Mr Toal submitted that the Adjudicator had made sustainable findings and those findings should have led him to allow the appeal. He submitted that we should allow the appeal in the light of those findings. 3. Ground 1 of the grounds complained that the Adjudicator had made inconsistent findings. The Adjudicator said at paragraph 20(iii) of his determination 'the appellant could expect to be prosecuted for [his support for OLF] if he returned to Ethiopia'.

(v) :

'I think it is first of all unlikely that the appellant would be prosecuted if he was returned to Ethiopia'. 4. In order to allow the appeal on the basis of the facts found by the Adjudicator we would have to be satisfied that the inconsistency complained of did not mean that the other findings were obscure or unsound. 5. Mr Toal pointed out that the findings set out in paragraph 1 of the application for permission to appeal to the Immigration and Asylum Tribunal were not the subject of any criticism by him or the subject of any cross-appeal by the respondent. This is true but not decisive. We can only use existing findings that are intelligible and which have an internal logic and consistency. 6. The findings set out at paragraph 1 of the grounds of appeal were findings of fact about past events. Mr Toal submitted that, properly understood, point 3 (ground 1 of the grounds of appeal) was concerned about an assessment of future risk. The complaint made by ground 1 was not that the Adjudicator had found that the appellant could expect to be prosecuted for his support for the OLF but rather that having made that finding, he went on to find it unlikely that he would be prosecuted. 7. Mr Toal also indicated that the appellant did not want to rely on ground 1. He was more concerned with the points raised in ground 2 which alleged the Adjudicator failed to assess the background and expert evidence properly. This change of tack did not assist the appellant. We could only consider the expert's report in the light of the Adjudicator's findings of fact and we could not do that unless we identified them. 8. We have looked carefully at exactly what the Adjudicator said. At paragraph 20(iii) the Adjudicator found that the appellant 'could expect to be prosecuted' because he had admitted that he is a member of the MTA and had supported the OLF. At paragraph 20(v) the Adjudicator found it "unlikely that the appellant would be prosecuted'

. This is confusing. We recognise that a finding that the appellant 'could expect to be prosecuted' is not particularly precise but it is very hard to give it any meaning at all that does not mean that the Adjudicator found there was a real risk of the appellant being prosecuted and if this is what he meant then he should have made his determination on the basis that the appellant had established a real risk of his being prosecuted. He did not and this leaves us wondering just what the Adjudicator really meant when he made his findings. 9. Ground 2 extends from paragraph 4 to paragraph 7 of the grounds of appeal. The ground complains about the Adjudicator's conclusion that prosecution was unlikely, that prosecution would not bring with it a risk of persecution or breach of protected human rights, or that the appellant would not be at risk of persecution or ill-treatment for some reason other than the proposed prosecution given the things he admitted to having done. Point 5 complains that the Adjudicator failed to consider the expert report concluding that he would 'almost certainly be detained on entry' to Ethiopia where he would be ill-treated and probably tortured. Points 6 and 7 add to the complaint that the Adjudicator had not considered the expert report. 10. Some of the Adjudicator's apparent findings are set out in ground 1 of the grounds and we repeat them here. The Adjudicator accepted that the appellant was an active member of Waldaa Maccaa Fi Tulema, known as the MTA, that he was a supporter of the OLF, that he was detained for a period of about six weeks in October 1998, that he was slapped, beaten and kicked during the first days in detention, that he admitted to being a member of the MTA and a supporter of the OLF, that he was released on bail at the end of that period. 11. The Adjudicator also found that the appellant would not be persecuted if he was prosecuted. 12. We consider that the complaints made in ground 2 are made out. The Adjudicator did not explain his conclusion that the appellant was unlikely to be prosecuted or, more importantly, that any prosecution would not bring with it a risk of persecution or breach of human rights. Further the Adjudicator did not deal adequately with the evidence of the expert Dr Trevor Truman and in particular his opinion that the appellant would 'almost certainly be detained and ill-treated on entry'. 13. In his efforts to persuade us that we should allow the appeal outright Mr Toal relied heavily on the Home Office Operational Guidance Notes published on 21 November 2005. These are notes published by the Immigration and Nationality Directorate and are intended to guide immigration officers assessing a case. Mr Toal particularly drew to our attention paragraph 3.6.9 which is in the following terms: 'If it is accepted that the claimant has been involved in, or is suspected of involvement in non-combat activities on behalf of one of these groups and has previously come to the adverse attention of the authorities, then they are likely to be at real risk of persecution by the state authorities. The grant of asylum in such cases is therefore likely to be appropriate.' 14. Mr Toal submitted that the appellant plainly comes within this category. The appellant has been detained for about six weeks in October 1998 when he was ill-treated. He admitted to being a member of the MTA and a supporter of the OLF. 15. The difficulty we have is that we do not know that the Adjudicator accepted that the appellant would be linked in the minds of the authorities with the OLF. It was never the appellant's case that he was a member of the OLF but just that he supported it. Certainly it was the appellant's case that he was seen as a supporter of the OLF. This is reflected at paragraph 14(iv) of the determination. It is not clear that the Adjudicator believed this, or at least not that the authorities continued to regard him as an OLF supporter. The Adjudicator found that the appellant had been detained and released on bail. The Adjudicator found that was because they had insufficient evidence to proceed with the charge. He said this at the troublesome paragraph 20(iii). The Adjudicator expressly rejected the appellant's evidence that he was now being sought for OLF activities. 16. We reject Mr Toal's contention that the inconsistency and confusion in paragraph 20(v) does not undermine the Adjudicator's earlier findings. We do not see why we should assume that the Adjudicator's finding that the appellant risked prosecution is 'right' but his finding that he did not risk persecution is "wrong". We do not accept that the Adjudicator decided properly that the appellant continued to risk prosecution in Ethiopia. He may have meant that the appellant no longer risked prosecution and that is why he would not risk being persecuted if he returned. The problem here is not that the Adjudicator made a series of clear findings and then spoiled the determination by making a perverse conclusion. Rather, although the Adjudicator appears at 'first blush' to have made clear findings when the determination is read carefully it is not at clear what the adjudicator really found or accepted. 17. It is plain to us that the findings of fact in the determination are not good enough to go on to allow the appeal for the reasons advanced by Mr Toal. It follows that this case will have to be reheard. 18. We are very aware of the contents of the expert's report which we have not considered in detail because there is no point in us doing that at this stage. We are also aware of the reported case HA (OLF members and sympathisers – risk) Ethiopia

[2005] UKAIT 00136

which could, if certain findings are made, be of considerable assistance to the appellant. We also note that the case of HA is not designated as country guidance. If there is sufficient material available at the second-stage rehearing it may be possible to give general guidance on the risks facing members, supporters or perceived members and supporters of the OLF." The evidence before the Tribunal on 19 February 2007

[21]At the adjourned reconsideration hearing on 19 February 2007 the Tribunal had before it the documentary evidence listed in the Annex to this determination. The Tribunal also heard oral evidence from the appellant and Dr Roy Love. At the commencement of the adjourned hearing, Mr Toal, for the appellant, submitted that, in the light of the Court of Appeal's judgment in DK (Serbia) and Others v Secretary of State for the Home Department

[2006] EWCA Civ 1747

and the Tribunal's determination in AH (Scope of S103A Reconsideration) Sudan

[2006] UKAIT 00038

, the Tribunal should not proceed to reconsider the totality of the case, as had been envisaged by the Tribunal at the hearing on 31 January 2006, but should preserve the Adjudicator's positive findings of fact concerning the events which the appellant had said occurred, up to the time when he left Ethiopia.

[22]It is, however, plain from the findings of the Tribunal following the hearing on 31 January that the error of law in the Adjudicator's determination went to the core of the findings of fact which he had purported to make. The contradictory findings as to whether the appellant would be at risk of prosecution on return were found, upon analysis, to reveal a lack of clarity as to what the Adjudicator had "really found or accepted" (paragraph 16 of the reasons). The Tribunal accordingly concluded that Mr Toal was unable to rely upon paragraph 22 of the judgement of Latham LJ in DK , where it was held that "any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited."

[23]The appellant gave evidence in English to the Tribunal, having told us that he was content to do so. The Tribunal noted that the appellant was at all times fully able to comprehend the questions put to him and his answers displayed no indication that he had difficulties in expressing himself in English.

[24]The appellant confirmed that his witness statement (pages 4 to 18 of the appellant's bundle) was true. The account given in that statement is, essentially, that set out at paragraphs 3 to 15 above. The appellant also confirmed the truth of a second witness statement (pages 146 to 148 of the appellant's bundle). In that statement, the appellant corrected what he had said in his earlier statement about the occasion in which he was stopped in the street by the police and accused of being a Somali. The appellant now realised that this occurred in 1996, rather than 1997, since the heightened detention in Addis Ababa followed an attempt to assassinate the Ethiopian Minister of Transport and Communications in July 1996.

[25]So far as the two members of the MTA who were arrested in August 1999 were concerned, the appellant stated that he had heard that one of them had fled to Kenya and that the other one was still in prison. Of the members of the MTA arrested in April and May 2004, the appellant believed, on the basis of various searches of websites, including Amnesty International and Human Rights Watch, that these persons were still in prison. Finally, the appellant claimed that he had recently heard that a neighbour of his and fellow member of the MTA had been arrested and imprisoned in Ethiopia. The appellant obtained this information from the son of the person concerned. Overall, the appellant considered that the situation in Ethiopia had deteriorated further since the Adjudicator hearing in August 2004.

[26]Cross-examined, the appellant said that he obtained his exit visa from Ethiopia shortly before he came to the United Kingdom. It had been obtained for him by his employers. His return flight had been booked and he had finished his course at the University of Sussex, when he had news from Ethiopia that there were difficulties there for him. He had spoken to his mother who said that people had been arrested and he also heard from his cousin. The appellant extended his course for one week, as a result of the telephone conversation with his mother, but still intended at that stage to return to Ethiopia. It was, however, the letter from his cousin that caused the appellant to claim asylum. Of the information contained in that letter, the appellant considered that the most significant was that the authorities considered the appellant had been spreading OLF information by means of the internet. The appellant denied that he had discussed the letter with his cousin. Asked how the letter could suggest that the appellant was one of the most wanted of spies, the appellant said that the community in which he moved was a close-knit one and that every neighbourhood had its informers.

[27]The appellant was asked why the letter from the cousin had to remind the appellant that he was a member of the MTA. The appellant replied that he could have asked the cousin not to put the letter in those terms, had he had an opportunity to do so.

[28]There was no re-examination.

[29]Dr Roy Love gave evidence. He spoke to his report (pages 362 to 375 of the appellant's bundle), dated 11 January 2007. Dr Love was formerly a senior lecturer of the School of Applied Social Studies at Sheffield Hallam University and senior lecturer in the Departments of Economics at the Universities of Botswana, Lesotho and Ethiopia. He is at present an independent researcher, consultant and part-time lecturer, besides being co-ordinating editor of the Review of African Political Economy. Dr Love has studied, researched and published on the political economy of Ethiopia since the early 1970s and has frequently visited the country. His doctoral thesis was on the Ethiopian coffee economy, which involved field work carried out between 1997 and 2001. His last visit to Ethiopia was in September 2003.

[30]Dr Love considers that the source of the appellant's problems is to be found in the decision in the late nineteenth century of Emperor Menelik, an Amhara from the Shoa region, to conquer and occupy the whole of what is now the Oromia region of Ethiopia. This was seen by the Oromo as Abyssinian imperialism, which in turn led to the economic exploitation and cultural oppression of the Oromo people. Oromia today covers a large part of southern Ethiopia, embracing Addis Ababa, and contains about 40% of the population of Ethiopia. The current dominant party in the coalition Government, the EPRDF, depends heavily for electoral support on the main legally recognised political party for Oromia, the OPDO. The MTA, until its recent proscription by the Government, was the oldest and most prominent Oromia civil society organisation. It was formed in 1962, with the object of promoting Oromo culture, education and self-help, in the process nurturing a sense of Oromo nationalism. Over the years, many have moved on from it to organisations such as the OLF, many of whose early leaders had a close association with the MTA. From 1974 to 1991, no independent civil society organisations were permitted in Ethiopia. However, on gaining power in 1991, the EPRDF allowed the MTA to operate once more. Following the decision of the OLF in 1992 to withdraw from co-operation with the EPRDF and in effect return to armed opposition, old suspicions on the part of the Government towards the MTA began to reappear.

[31]In 1997, following a wave of bombings in the capital, 31 prominent Oromo were arrested, amongst whom were seventeen supporters of the OLF. Most of those were, according to Dr Love, also members of the MTA. By November 1997, some 10,000 people in Ethiopia were reported to be in detention on suspicion of being members either of the OLF or the Oromo National Liberation Front. During the border war between Ethiopia and Eritrea, the OLF had an opportunity to intensify its activities.

[32]In paragraph 10 of his report, Dr Love comments on the appellant's claim that internet access in Ethiopia was extremely limited in the mid to late 1990s and that the activities described by the appellant were, accordingly, likely to be regarded as significant. Dr Love confirms the lack of access to the internet at the relevant time and considers that the appellant's activities in this regard, coupled with his membership of the MTA, "could well have attracted the attention of those on the Government side who assumed links between MTA and the OLF."

[33]In 2004, Dr Love notes that the US State Department report found that the MTA had organised, on 4 January 2004, a peaceful demonstration involving some 10,000 Oromo residents of Addis Ababa and its environs. The purpose of the demonstration was to urge the Government to reverse its decision to transfer the capital of Oromia from Addis Ababa to Adama. Police reportedly beat and arrested demonstrators, with the Government claiming that the MTA did not in fact have the required permit in order to conduct the demonstration. Dr Love also recalls that in March 2004 a similar demonstration was broken up at Alemayu Agricultural College. In April 2004, the Government blamed a grenade attack in Addis Ababa University on the OLF. The following month, four leaders of the MTA plus a number of other Oromos were arrested. The MTA officials were alleged to have raised funds for the attack. The officials were the persons named in the appellant's first witness statement.

[34]On 23 July 2004, the Addis Tribune newspaper reported that the Ministry of Justice had revoked the registration licence of the MTA, with the result that the organisation was no longer allowed to be politically active. The MTA was also accused of being directly involved in terrorist activities. On 9 August 2004 the Federal High Court ordered the release of the MTA leaders but by 17 August they had been re-arrested without warrant. Following further judicial intervention, the detainees were released again in November 2004 but then re-arrested once more on 9 February 2005. According to the respondent's COI report, referring to a UNHCR report of May 2006, the MTA, in common with a number of other ethnic welfare organisations, had fallen foul of the Government and been closed down. The MTA was seen as the political wing of the OLF and closed down. So far as Dr Love is aware, that remains the position at the present time. As at the end of 2006, the MTA leaders remained incarcerated, according to Human Rights Watch.

[35]Dr Love's report goes on to confirm the animosity felt by members of the OLF towards the OPDO. Furthermore, the OPDO were reported as having harassed opposition candidates during the May 2005 Parliamentary elections.

[36]Citing the US State Department report and Human Rights Watch, amongst others, Dr Love considers that what has happened to the MTA leaders is part of a pattern, whereby the authorities will detain large numbers of dissidents and then release them, but re-arrest a small number of leading individuals, such as the MTA leaders who appear to remain in detention. The Government utilises a system of paid informers, in order to keep watch on persons of interest, such as OLF supporters.

[37]In the light of these events, Dr Love considers that the likelihood of the appellant receiving a fair trial, if returned to Ethiopia and arrested, must be questioned. So far as current risk is concerned, Dr Love quotes Human Rights Watch as reporting that the security forces frequently arrest civilians, claiming they are members of the OLF. Whilst some are released, others are kept in arbitrary detention for prolonged periods, often without hearing or cause shown, sometimes incommunicado.

[38]On 4 September 2006 it was reported that the Government had detained without charge more than 250 members of the Oromo ethnic group, including teachers, high school students and politicians. Most, however, were subsequently released without charge.

[39]If returned today, the appellant would, according to Dr Love, face a political situation that has changed for the worse in the aftermath of the 2005 elections, with its legacy of resentment and bitterness, coupled with the complex interrelationships between the parties involved in the conflict in Somalia and the continued failure to find a peaceful resolution to the border conflict with Eritrea. Furthermore, Dr Love considers, in the "likely event" of the appellant renewing contacts in circles in which he moved before his departure in 1999, his presence would be highly likely to be detected by opponents and informers, which would mean that it would be likely that the appellant's name would be connected with his previous court summons of 1999. Although Dr Love states that he is not familiar with the details of checks made by passport officials at Addis Ababa airport, he nevertheless considers it likely that the appellant would, if forcibly returned, be asked to explain the large gap in his passport for the years from 1999 to the present day. Having left during the currency of the present Government, he could not, for example, argue that he was part of the returning pre-1991 diaspora. Were that to lead to the re-opening of the appellant's case, then the likelihood of his re-arrest would be increased by his failure to report to the court on 23 June 1999 and his failure to return to Ethiopia on completion of his course at the University of Sussex, choosing instead to seek asylum in the United Kingdom. These, taken together, would be seen as confirming previous official suspicion that he was aiding the OLF and was an opponent of the Government.

[40]In his conclusions, Dr Love states that, even if the appellant were to avoid detection and detention at the airport, there is a:- "high probability that his previous involvement with the authorities, and his abscondence, would fairly quickly come to their attention again, given the network of informal connections amongst the still relatively small educated elite in Addis Ababa. This chance would increase were he to resume his previous contacts with the MTA and to continue supporting the OLF" (paragraph 33).

[41]In examination-in-chief, Dr Love was asked whether he knew if those in Ethiopia responsible for processing exit visas had access to records relating to bail. Dr Love replied that he did not but he considered it quite likely that the relevant officials did not have access to such information. As for informers, Dr Love said that there were limited meeting places for educated Oromo to meet and it was therefore easy for informers to infiltrate their activities.

[42]Cross-examined, Dr Love was asked whether the appellant would be able to get through the airport checks unscathed. Dr Love considered that there was a chance that the appellant might be detained at the airport, in order to account for what he had been doing since he left in 1999, particularly given the current political climate. The Ethiopians were concerned about the activities of dissidents outside Ethiopia. Oromos account for approximately 40% of the population of Ethiopia. If the appellant, on return, remained politically active, Dr Love considered that there was a strong likelihood that he would come to the adverse attention of the authorities. Asked what the position might be if the appellant "kept his head down", Dr Love said that he could not say.

[43]In answer to a question from the Tribunal, Dr Love stated that the factors that he considered would put the appellant at risk on return were his connection with the MTA, his links with the OLF and the problems regarding Somalia and the Ogaden area, all of which are making the authorities in Ethiopia wary of dissent. So far as the OLF was concerned, Dr Love considered that any actual member of that organisation was at risk; so too would be any high-level supporter of the organisation. In the case of the appellant, Dr Love considered that the risk to him arose in equal measure from his past activities and his current views. Having unsuccessfully claimed asylum abroad was a factor to be considered in assessing the risk to an individual.

[44]Re-examined, Dr Love said that the level of educational attainment of an individual was also a relevant risk factor. There were many examples of academics and other professionals falling foul of the authorities. Recently, there had been reports that the staff of Ethiopian embassies abroad were being spied upon by the Ethiopian Government, as were educated members of the Ethiopian diaspora.

[45]At pages 120 to 140 of the appellant's bundle there is the report on the appellant of Dr Trevor Trueman (4 August 2004), which was before the Adjudicator. Dr Trueman is a medical practitioner who has worked extensively with the Oromo people and who has an interest in the political and human rights situation in Ethiopia. Since 1994, he has been the Chair of the Oromia Support Group. Like Dr Love, Dr Trueman paints a picture of the human rights position in Ethiopia, based upon the work of organisations such as Amnesty International and Human Rights Watch. The picture is a somewhat dark one, involving a variety of human rights abuses on the part of the Ethiopian authorities. At page 16 of the report, we observe that in a random survey of over 500 Oromo refugees in Minneapolis, Minnesota, 69% of men and 30% of women had been tortured "compared to the usual prevalence among refugee communities of 5-35%, according to a report by the University of Minnesota and Center for Victims of Torture" (2004). Since 1997, there have been reports, according to Amnesty International, of hundreds of persons being arrested on suspicion of supporting the OLF. At paragraph 31, Dr Trueman opines that simple membership of, indeed mere suspicion of sympathising with, the OLF results in arbitrary detention, according to the US State Department reports for 2000 to 2003 and Amnesty International and Human Rights Watch. The MTA has been "persecuted by successive Ethiopian regimes since its formation during the rule of Emperor Haile-Selassie" (paragraph 31). In conclusion, Dr Trueman considers that:- "In my opinion, if a person with the profile of [the appellant], a graduate of Addis Ababa University who has refused membership of the OPDO, a member of the Mach-Tulama Association who has been detained and beaten because of this in the past, for whom an arrest warrant has been written, were to return to Ethiopia, he would almost certainly be detained on entry, interrogated, beaten and probably tortured. It is probable that he would spend many months or years in detention. It is possible, but unlikely, that he would be killed or made to disappear during detention."

[46]The respondent's Operational Guidance Note on Ethiopia (27 October 2006) observes at paragraph 211 that:- "The Government's already poor human rights record deteriorated markedly in 2005. After the May 2005 elections, serious human rights abuses occurred in June 2005 when the opposition parties refused to accept the announced results. … the aftermath of election has laid bare the deeply entrenched patterns of political repression, human rights abuse and impunity that characterised the day-to-day reality of governance in much of the country. Throughout 2005, the Government severely clamped down on freedom of expression, assembly and the media with the arrest of hundreds of opposition politicians, journalists, editors and civil society activists."

[47]At paragraph 2.12, it is noted that "since 2004 legal restrictions on civil society associations and NGOs have increased." Both existing laws and new draft laws allow the Government extensive powers over civil society associations and NGOs. Paragraph 2.13 records that:- "A number of indigenous NGOs that have the aspect of ethnic of welfare organisations have fallen foul of the Government and have been closed down. The Mecha-Tuluma Association was seen as a political wing of the OLF and closed down. The Ogaden Welfare Society (OWS) in the Somali Regional State was banned in 2002 and a number of its members were arrested and detained." Paragraph 2.14 observes that:- "State oppression of ethnic groups such as the Oromos continued in 2005. In rural areas in Oromia, local officials often threatened to withhold vital agricultural inputs such as fertiliser from impoverished farmers if they speak out against them or their policies."

[48]Paragraphs 3.6.1 to 3.6.10 deal with membership of the OLF, ONLF or IUP. In 2005, armed elements of the OLF and the ONLF continue to operate within the country and there were reports of clashes with the Ethiopian army. In August 2006, it was reported that an Ethiopian general had defected with a hundred troops to join the OLF. The Operational Guidance Note advises that members of the OLF and the other named groups cannot escape ill-treatment or persecution from the State authorities by relocating to a different area of Ethiopia, given that the fear of persecution emanates from the State. However, ordinary low-level non-combat members of the OLF, ONLF and IUP, who have not previously come to the adverse attention of the authorities, are considered to be unlikely to be at real risk of persecution. Conversely, a claimant who has been involved in or suspected of involvement in non-combat activities on behalf of one of those groups and who has previously come to the adverse attention of the authorities is, according to paragraph 3.6.9, likely to be at real risk of persecution from the authorities.

[49]Paragraphs 3.7.1 to 3.7.8 deal with the Oromo ethnic group. The Operational Guidance Note considers that Oromo nationalism:- "has evolved in response to the Oromo people's long, difficult and often antagonistic relationship with the Ethiopian State. Oromos who come to the adverse attention of the authorities are usually those who are known to be involved with, or suspected of being involved with the OLF." Paragraph 3.7.8 concludes that:- "Whilst there is evidence that Oromos who are active in, or who are suspected of being active in, the OLF are likely to come to the attention of the authorities, there is no evidence that the State authorities systematically harass, discriminate or persecute Oromo Ethiopians solely on account of their ethnic origin. Claimants who express a fear of ill-treatment amount to persecution by the State authorities solely on the basis of their Oromo ethnic origin are therefore not likely to qualify for asylum." HA (OLF Members and sympathisers – risk) Ethiopia

[2005] UKAIT 00136

[50]According to its italic rubric, HA (OLF Members and sympathisers – risk) Ethiopia

[2005] UKAIT 00136

was "reported solely for what it says about risk to OLF members and sympathisers on the basis of recent country reports." The appellant in that case was an active supporter of the OLF who had been arrested in May 2004, whilst at a meeting with other OLF members. Whilst in detention for three weeks, she was severely ill-treated on account of her activities for the OLF and her political opinions. She was released on condition that she reported weekly and did not have contact with anyone else arrested with her. She was also required to refrain from any involvement with the OLF. The Immigration Judge dismissed the appellant's appeal because she was only "a modest and low-level supporter of the OLF" who had "not been charged with any offence, had been allowed to leave the police station on conditions, had observed the conditions on which she was released until at least 20 July 2004 and had not resumed her political activities at any time following her arrest" (paragraphs 3 and 4).

[51]Having found a material error of law in the Immigration Judge's decision, the Tribunal in HA , in substituting a fresh decision of its own, considered the CIPU report of 2004, which detailed the arrest and detention of thousands of OLF members or sympathisers and the commission by the security forces of unlawful killings and their mistreatment of detainees. It also noted that the Government continued to arrest and detain persons arbitrarily, particularly those suspected of sympathising with or being members of the OLF.

[52]The Tribunal found that, whether the appellant might have ceased being involved with the OLF and had no continuing commitment to that organisation, this would not be:- "at all determinative of how she would be perceived by the authorities. On the basis of the April 2004 CIPU report we consider it was reasonably likely that they would re-arrest and detain her and, in the course of that detention, inflict further ill-treatment upon her by virtue of her (perceived) political opinion" (paragraph 12). Of further relevance was the Human Rights Watch report of May 2005, in which it was noted that police officials in Oromia often subject individuals who are arrested on suspicion of OLF-related activities to torture and other forms of mistreatment. Being released from detention was, according to the report, "only the beginning of their ordeal. In many cases police officials harass and intimidate former detainees and their families for years after their release" (paragraph 13).

[53]At paragraph 15 of its determination, the Tribunal said:- "Neither Mr Gulvin nor Mr Denholme were able to assist us with specific background evidence regarding record-keeping operated by the Ethiopian authorities. However, it is in our view abundantly clear that amongst the different opposition and dissident parties and groups currently existing in Ethiopia, the authorities make a particular priority of targeting those who are members of OLF or are known OLF sympathisers. The OLF is committed to armed struggle and does not regard itself as willing to work within the existing political and Parliamentary system. In such circumstances it would be entirely reasonable to assume that the Ethiopian authorities maintain centralised records on persons suspected of OLF involvement. The many instances highlighted in the CIPU report and Human Rights Watch report of repressive action taken against the suspected members and sympathisers strongly indicate in our view the existence of a centralised and relatively sophisticated system of record-keeping. Whether at the point of return at the airport in Addis Ababa or subsequently, we consider it reasonably likely therefore that this appellant would come to the adverse attention of the authorities as someone who had been previously arrested on suspicion of OLF involvement and had breached conditions of her release."

[54]In conclusion, the Tribunal held that:- "In our view there is a current risk to OLF members and sympathisers who have been previously arrested and detained on suspicion of OLF involvement or who have a significant history, known to the authorities, of OLF membership or sympathy. We have not considered that it is suitable for designation as a country guideline case because we did not have sufficiently full evidence or submissions. But equally it is right that we should make known, by reporting, the views we have reached on the basis of the latest available evidence as presented in this case" (paragraph 17). The Tribunal's assessment of the evidence in the present case

[55]We turn now to the determination of the appeal before us. The burden of proof is on the appellant, who must show that, if returned to Ethiopia, he would face a real risk of persecution or serious ill-treatment, such as to entitle him to the grant of refugee status, the grant of humanitarian protection or to a finding that his rights under

Article 3 of the ECHR

would be violated. In reaching our decision, we have considered each item of evidence and have reviewed that evidence in the round.

[56]The Tribunal found Dr Love's report to be generally well-sourced and, so far as it related to recent events in Ethiopia, consistent with the other reports that were before the Tribunal. His description of a deterioration in the degree of respect accorded by the Ethiopian government to human rights is in line with that of the respondent's Operational Guidance Note. Although there is a letter from Dr Trueman, which seeks to bring his report up to date, that report is not as current as Dr Love's and we did not have the benefit of oral evidence from Dr Trueman. These factors limited the weight that could be placed on his evidence.

[57]Neither the respondent's letter of refusal nor Mr Saunders took issue with the credibility of the appellant's account of what he did, and what happened to him, whilst he was in Ethiopia. However, Mr Saunders submitted that the letter from the appellant's cousin, which the appellant claimed was the catalyst for claiming asylum, could not bear any significant weight, given that its terms showed it to be a contrivance. Mr Saunders made a similar submission in relation to the arrest warrant. Given, however, that the appellant's account of what happened in Ethiopia is reasonably likely to be true, there is nothing in the arrest warrant which strikes us as inherently problematic. The appellant said that he had been questioned about OLF involvement, whilst in detention. It is, therefore, plausible that, when the arrest warrant came to be issued, following the appellant's non-appearance in court, it should assert that he was a member of the OLF. It is also significant that the assertion in the warrant that the appellant "was distributing writings and materials contrary to the constitution of the federal Government" fits precisely with the activities involving the internet, which the appellant was carrying out at his place of employment.

[58]So far as the letter from the cousin is concerned, the Tribunal agrees that this is plainly a concoction, written not for the benefit of the appellant but some third party, such as the Tribunal. But this does not mean that the appellant's claim is significantly damaged. Given the unchallenged account of the appellant's activities, the Tribunal finds it is reasonably likely that, whether through his mother or from some other source, the appellant found out, towards the end of his course in the United Kingdom, that his failure to appear in court had excited the adverse interest of the authorities in Ethiopia.

[59]Mr Saunders understandably laid great store on the fact that the appellant was able to exit Ethiopia, with a valid exit permit, notwithstanding that he had in effect been bailed in connection with what were regarded as anti-regime activities. Mr Saunders submitted this meant that, in reality, the Ethiopian authorities had no significant adverse interest in the appellant in 1999 and still would not today.

[60]Dr Love's evidence, however, was that the nature of Ethiopian record-keeping was such that it was quite likely that a person who had been bailed would not feature in the records available to those officials charged with responsibility for issuing exit permits. The Tribunal accepts Dr Love's evidence in this regard. There is no evidence before us, to the effect that the Ethiopian authorities maintain any centralised system of record-keeping, which enables the officials responsible for immigration and emigration matters to access information regarding all those who have been detained by the authorities and released on bail. To this extent, we respectfully differ from what is said at paragraph 15 of the determination in HA It may well be the case that high-profile individuals will have their names kept at the airport at Addis Ababa but, at the time of his departure in 1999, the appellant in the present case claimed he did not fall within such a category.

[61]Turning to the position if the appellant were to be returned in 2007, whilst it might be said that he would now be reasonably likely to feature in the records kept by the airport authorities, as a person who has been ordered to be arrested, Dr Love's evidence as to the lack of co-ordination between the relevant Ethiopian officials strongly indicates that the appellant would not be identified from records at the airport as a person whose arrest had been ordered. Significantly, Dr Love's evidence was that there was only a "chance" that the appellant might be detained at the airport, notwithstanding the present political climate and the fact that he would be returning after a long period of absence abroad. Even being identified as a returning failed asylum seeker was, according to Dr Love, no more than one of a number of factors that would have to be considered in determining whether the appellant would be detained upon return. There is, we note, no objective evidence to which our attention has been drawn, which suggests that returning failed asylum seekers to Ethiopia, even if identified as such, are subjected to any in-depth questioning. In all the circumstances, therefore, the Tribunal concludes that the appellant would not be at real risk of persecution or other serious harm at the point of his return.

[62]However, that is not the end of the matter. The appellant will be entitled to international protection if, having hypothetically passed through the airport, he would be at real risk thereafter. In all the circumstances of the appellant's case, there is, we consider, plainly a real risk that he will come to the adverse attention of the Ethiopian authorities. The appellant:-(a) is the subject of an outstanding arrest warrant for OLF involvement;

(b) is a member of the (now proscribed) MTA; and

(c) undertook information-gathering activities, via the internet, relating to both the OLF and the MTA, which fact is now known both to his employers and the authorities.

[63]In view of the current situation in Ethiopia, as described, perhaps most graphically, in the respondent's Operational Guidance Note; the fact that the appellant comes from, and is reasonably likely to return to, the relatively small group of intellectuals/professionals in Ethiopia; and that there is a system of informers which operates in the country including (particularly) amongst that group, the Tribunal concludes that there is a real risk that the appellant will come to the adverse attention of the authorities. This is so, on the basis of what the appellant is and what he has done in the past. But in any event, it has not been suggested that the appellant would, if returned, be reasonably likely to refrain from any further interest in, and involvement with, the kind of Oromo activities that led him to seek asylum in the United Kingdom. Mr Saunders accepted that there were difficulties for him in contending that the appellant had an internal relocation alternative. The Tribunal agrees. This is not a case where the State's persecutory attentions have been shown to be geographically limited.

[64]So far as OLF involvement or alleged involvement is concerned, neither Mr Toal nor Mr Saunders sought to persuade us that the conclusions contained in paragraph 17 of the determination in HA should be amended. In the light of the evidence before this Tribunal, the following general conclusions can be made.

[65]As at February 2007, the situation in Ethiopia is such that, in general:-(a) OLF members and sympathisers;

(b) persons perceived to be OLF members or sympathisers; and

[66]In the case of OLF members and sympathisers, the Tribunal finds that the conclusions in paragraph 17 of HA continue to be supported by the background country evidence. OLF members and sympathisers and those specifically perceived by the authorities to be such members or sympathisers will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement. So too will those who have a significant history, known to the authorities, of OLF membership or sympathy. Whether any such persons are to be excluded from recognition as refugees or from the grant of humanitarian protection by reason of armed activities may need to be addressed in particular cases (see paragraph 3.6.10 of the Operational Guidance Note).

[67]Given the proscription of the MTA and the current state of tension on the part of the Ethiopian authorities, the Tribunal considers that MTA members will also be at real risk on return if they have previously been arrested or detained on suspicion of MTA membership and/or of OLF membership or are known or suspected of membership of the MTA. Despite the banning of the MTA, the Tribunal does not consider that the evidence is such as to show a real risk where the extent of the authorities' knowledge or suspicion about an individual relates to something less than membership of the MTA. Decision

[68]The Adjudicator made a material error of law. The Tribunal accordingly substitutes for his decision, a decision of our own to allow the appellant's appeal on asylum and human rights grounds (Article 3). By reason of paragraph 339C(ii) of the Immigration Rules, the appellant is not entitled to the grant of humanitarian protection. Signed Date: Senior Immigration Judge P R Lane Annex - Documentary Evidence Evidence Relating to the Appellant's Particular Claim Appellant's Evidence Concerning Entry Conditions Respondent's Documents