Case No. UKUT-00453-(IAC)

) “at the applicant’s disposal” - which must include documentation which is not in the applicant's present possession but is within his or her power to obtain. 3. The terms of Article 4(3) are consistent with the position that an applicant who denies he is a national of a country where he could obtain protection can be expected to take reasonable steps to establish that he is not such a national. DECISION AND REASONS 1.The appellant, who claims to be a national of Eritrea, has permission to challenge the decision of First-tier Tribunal (FtT) (Judge Kimnell) dated 30 July 2015 dismissing his appeal against the decision made by the respondent on 12 May 2014 to remove her from the UK following the refusal of her application for asylum. A previous decision by FtT Judge M R Oliver was set aside by Deputy Upper Tribunal Judge Lewis in December 2014 for lack of reasons.2.The grounds which persuaded UTJ Bruce to grant permission to appeal were threefold.3.First, the judge was said to have erred in rejecting the appellant’s claim to have been arrested and detained by the Eritrean authorities in November 2010 and to have fled Eritrea in consequence. The error was identified as being a failure to attach weight to the judge’s positive finding that the appellant was a Pentecostal Christian. It was pointed out that the claimed arrest and detention in November 2010 took place when the authorities found the appellant in her home praying with other Pentecostal worshippers. It was stated that the judge proffered no effective reason for rejecting the claimed arrest and detention. It was submitted that each of the three reasons given at [46] and [47] for rejecting the appellant’s account (the implausibility of her escape account; her not having an identity card in her possession; and her inconsistency as regards who was arrested) was said by the judge himself in the same paragraphs not to count against her: the judge it was said noted that the first two points had not been put to her at the hearing; and regarded the alleged inconsistency as having a satisfactory explanation. Accordingly, the only reason in effect for rejecting the core of the appellant’s claim was because of the judge’s (and respondent’s) assessment as regards her nationality. It was submitted that it was an error of law to deduce an adverse credibility finding solely from a determination of nationality.4.Before proceeding further, it is convenient to set out in full what the judge said at [46] – [47]:- “46. The appellant’s information about her uncle engineering her escape from detention in Eritrea is extremely vague. She does not explain how it was arranged or why it would be that her close relative would have such influence with the authorities that, firstly, he would know who to approach in order to arrange a bribe, how he would identify an officer who was susceptible, how the whole process was managed and, if a bribe was paid, how much it was. Quite why she was not in a possession of her identity card at the time of her arrest, given that the card and she were both at her uncle’s home, is unclear, but no questions were asked about that therefore I draw no conclusions from it. The appellant’s journey to the United Kingdom requires some explanation because she spent three years en route and when she did leave Sudan to travel to the United Kingdom she was leaving a country in which she had no well-founded fear of persecution. I conclude that the appellant has been unforthcoming because she has not been candid with the UK authorities and has failed to discharge the duty on her mentioned in the UNHCR Handbook to provide the respondent with full and complete information. 47. I did not find the appellant’s answer to question 108 of her interview to be particularly significant. Ms Ellis sought to argue that the appellant had given contradictory evidence about who was arrested because the words ‘and my father’ appear in the answer. I agree that the most likely interpretation is that the appellant was saying in answer to question 108 that her father was arrested with others , but the reply is ambiguous and it is possible that she was simply saying that the people arrested worshipped with her father. Therefore I do not hold that reply against her either.” 5.We do not find this first ground made out. For one thing the grounds are inaccurate in portraying the judge as stating that none of the stated reasons are to count against her. The only point which the judge states he “will draw no conclusion” from concerned the matter of why she was not in possession of an identity card at the time of her arrest. The judge says he will draw no conclusions because she was not asked questions about this. The judge says nothing in [46] to suggest that the two reasons he relies on are not being counted against her. These reasons were that the escape account was “extremely vague” and that she had not been candid in the account she gave of the journey to the UK via Sudan. For the judge, this meant she had failed to discharge the duty on her to provide the respondent with full and complete information. These reasons were considered by the judge to be reinforced by serious difficulties as regards her claim to be a returnee from Eritrea and to have adequate knowledge about the country. Considered cumulatively, we are quite satisfied that these reasons were ones that were both open to the judge and sufficient to justify his specific conclusions. The judge did not simply rely on the difficulties as regards her claim to be a national of Eritrea.6.The second ground, which forms the central part of the appellant’s submission, attacks the judge’s conclusion that the appellant is a national of Ethiopia and not as claimed of Eritrea. This conclusion was said to be flawed for essentially two reasons. It is convenient to summarise and then give our assessment of each of these reasons in turn.7.The first reason focuses on the judge’s assessment in [60] that the appellant had not taken all reasonable steps to obtain evidence from the Ethiopian Embassy in Croydon that she is not Ethiopian. This was said to be wrong because in fact the responsibility to take all reasonable steps was a shared one. Specific objection was taken to the judge’s statement in [59] that “[t]here is nothing the respondent could have done to assist the appellant to make her case that she is Eritrean”. It was argued that there clearly was something the respondent could have done, as it is routine for her to engage with the Ethiopian Embassy to establish nationality at the stage when she is enforcing removal against someone considered to be a national of that country. On the authority of MM v Minister for Justice, Equality and Law Reform, Ireland, and another (Case C-277/11); [2013] 1 WLR 1259) there is a shared responsibility between the appellant and the respondent at the initial fact-finding pre-decision stage of the proceeding with respect to ascertaining the facts to establish an asylum claim1. Yet in the appellant’s case the respondent had manifestly not made any inquiries relating to the appellant's nationality with the Ethiopian Embassy in London. Since the appellant had stated that she did not fear persecution in Ethiopia (only in Eritrea), there was no risk that inquiries would put her in jeopardy. Such inquiries of the Ethiopian Embassy could lawfully and reasonably have been made. The duty to substantiate nationality 8.We reject this contention. In our judgement it rests on a misconception regarding the shared duty of the respondent in the initial fact-finding stage as set out in Article 4 of the Qualification Directive as analysed by the CJEU in the MM case. Article 4(1) does specify that the assessment of the relevant elements of the application for international protection must be undertaken by the Member State “[i]n cooperation with the applicant”. But this shared duty must be interpreted in light of the prior requirement in Member States such as the UK to “consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection”. Article 4(2) contains a list of what the elements referred to in paragraph 1 consist of. This list reads as follows: “the applicant’s statements and all documentation at the applicant ’ s d isposal regarding the applicant’ s age, background, including that of relevant relatives, identity , nationality(ies) , country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection ” (emphasis added in bold).9.Notably the wording of Article 4(2) refers to documentation “at the applicant’s disposal”; it does not refer to “in the applicant’s possession”. “At the applicant’s disposal” must include documentation which is not in the applicant's present possession but which is within the power of the applicant to obtain.