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Ethiopia still not safe for Oromo Liberation Front supporters, country guidance confirms
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In AAR (OLF – MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC), the Upper Tribunal has confirmed that the situation in Ethiopia has not changed substantially enough to allow a departure from previous country guidance. This is important because people applying for asylum based on Oromo Liberation Front (OLF) support/and or membership have been finding their cases in limbo, with the Home Office arguing that it would now be safe for them to return. AAR provides a definitive response for many of them: Ethiopia is still not safe.
The appellant, represented by our colleague Alex Burrett, successfully argued that the risk categories in MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 30 should continue to apply because there was not a “durable change in circumstances” in Ethiopia. This test for departing from country guidance is set out in SMO, KSP & IM (Article 15 (c); identity documents) Iraq CG [2019] UKUT 400 (IAC), at paragraphs [209]-[211].
As the tribunal notes in the headnote, reproduced in full below, the fact that a county guidance decision is quite old does not affect the legal principles relevant to departing from it in a given case. The process remains the same: existing country guidance must be followed, unless in the individual case the departure is shown to be justified. Judges who do depart from country guidance should have a “good reason, explicitly stated”.
Country guidance: OLF members and sympathisers (supporters)
(1) 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 the existing guidance.
(2) OLF members and supporters and those specifically perceived by the authorities to be such members or supporters will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement.
(3) Those who have a significant history, known to the authorities, of OLF membership or support, or are perceived by the authorities to have such significant history will in general be at real risk of persecution by the authorities.
(4) ‘Significant’ should not be read as 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.
(5) Whether 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.
General application of country guidance
(1) 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.
(2) An assessment as to whether to depart from a CG decision is to be undertaken as to: (i) whether material circumstances have changed; and (ii) whether such changes are well established evidentially and durable.
(3) The law, and the principle, are not affected by the age of the CG 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 decision must, as a matter of law, be adopted.
(4) 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.
(5) Any failure by the Tribunal to apply a CG decision unless there is good reason, explicitly stated, for not doing so might constitute an error of law in that a material consideration has been ignored or legally inadequate reasons for the decision have been given.
(6) 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.
Which Oromos are at risk?
AAR confirms the position in MB that people previously arrested or detained on suspicion of OLF involvement will be at “real risk”. So too will those who have a significant history, known to the authorities, of OLF membership or support, or are perceived as such by the authorities.
The tribunal in AAR helpfully clarifies that a “significant history of OLF activity” is:
not… a very high level of involvement or support… [but where] suspicion [is] established that a person is perceived by the authorities as possessing an anti-government agenda. This is a fact sensitive assessment.
While this will leave some scope for the Home Office to argue that a person is not known to the authorities for her OLF activities, “suspicion” is a low bar.
The judgment also confirms that MB remains country guidance with respect to people connected with the Macca Tulema Association (see paragraph 6).
“No cogent evidence” for changing course
The appellant relied on up-to-date evidence from Amnesty International to show that, despite the encouraging signs in the early months of Abiy Ahmed’s premiership, there had been a downward spiral for human rights in the country (paragraphs 67-69). Counsel for the Home Office eventually conceded during the hearing that she was “unable to produce cogent evidence capable of justifying departure from MB”.
The department initially sought to rely on its 2020 country policy and information note, Ethiopia: Opposition to the government (since removed from the government website). This stated that the situation in Ethiopia has improved significantly since MB. It relied heavily on an Australian foreign ministry report which contains no direct quotations, no footnotes and rarely identifies sources of even uncontroversial information. In light of these deficiencies, the Upper Tribunal found, “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”.
Upper Tribunal Judge O’Callaghan concluded that in rejecting AAR’s asylum claim, the Home Office and First-tier Tribunal had chosen 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”. In fact, save for the optimistic Australian report, the “expert and objective evidence” drew attention to “significant regression in both the federal and regional authorities conduct towards the OLF”, including the arrests of various OLF leaders and members.
The decision is a helpful counterweight to a culture of evidential cherry-picking at the Home Office.
Other Ethiopian asylum cases
It is likely that there will be other Oromo claims wrongly refused. The tribunal’s clarification that MB still applies, and its criticism of Home Office country policy and information, paves the way for potential fresh claims in similar cases.
The decision in AAR may also be relevant for people from other self-determinative groups who are claiming asylum. The tribunal accepted that there is evidence of “human rights violations in Oromia Region, including targeting and killing minorities such as Amhara”. The case does not deal explicitly with the situation in the Tigray region or the position of people fleeing that conflict.
The judgment also confirms that opposition groups are targeted. This could allow people associated with other minority political groups, such as the Welkait Amhara Identity Committee, to rely on MB to seek asylum in the UK.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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