OT (Ivory Coast) v Secretary of State for the Home Department

In an asylum appeal, low-level membership or support of the RDR in Ivory Coast does not ordinarily establish a real risk of persecution or Article 3 ill-treatment. Ethnicity, Muslim faith, northern origin and perceived foreign origin are not individually sufficient. They may add significance in particular circumstances, but their combination with a low political profile will normally remain insufficient.

Ethnicity may be relevant as evidence of imputed political opinion, but it does not create a freestanding risk where the evidence does not establish ethnic persecution. An arguably flawed ethnic finding is immaterial where the tribunal’s other findings and country guidance make dismissal inevitable.

OT, an Ivorian citizen, appealed against an Asylum and Immigration Tribunal determination dated 12 July 2007, following reconsideration of an earlier dismissal. The Tribunal had upheld the refusal of asylum and claims based on Article 3 and humanitarian grounds.

OT relied on his alleged Dioula ethnicity, Muslim faith and membership of the RDR. The Tribunal found that his political profile was very low and rejected the claimed risk. Permission to appeal was granted on the limited issue of the treatment of ethnicity. The central issue was whether the alleged ethnic risk, considered with the political factors, required the appeal to be remitted.

Lord Justice Pill delivered the judgment of the court. Lady Justice Arden and Mr Justice Patten agreed. The appeal was dismissed.

1. Scope of the appeal. Permission had been granted on a limited basis. The Tribunal was entitled to find that OT had only a very low-level RDR profile and that his evidence of political involvement in the United Kingdom was unreliable. The court nevertheless considered the ethnicity argument advanced on appeal.
2. Country guidance. The court treated AZ (risk on return) Ivory Coast CG [2004] UKIAT 00170 and GG (political oppositionists) Ivory Coast CG [2007] UKIAIT 00086 as providing clear guidance. Low- or medium-level political opposition activity did not ordinarily create a real risk. A risk was principally associated with high-level members, activists or militants.
3. Additional factors. Dioula ethnicity, Muslim faith, northern origin and perceived West African immigrant status were not sufficient in themselves. They might operate as additional risk factors in particular circumstances, but the guidance did not ordinarily establish a real risk even when combined with a low-level political profile.
4. Ethnicity and materiality. On the evidence, ethnicity was relevant only insofar as it might support an assumption of RDR membership or imputed political opinion. There was no freestanding evidential basis for ethnic persecution. Any error in the Tribunal’s reasoning about whether OT would be recognised as Dioula was therefore immaterial, because its findings on political profile and risk led inevitably to dismissal.
5. Procedural and tribunal guidance. Appellants should comply with limited permission requirements and apply to adduce fresh evidence when necessary. Tribunals should identify how the case is put, analyse the relevant issues, make focused findings and state clear conclusions.

Order: appeal dismissed.

• Court of Appeal (Civil Division): in [2008] EWCA Civ 557, dismissed the appeal.
• Asylum and Immigration Tribunal: on 12 July 2007, after reconsideration following an earlier dismissal on 23 November 2005, dismissed OT’s appeal against the refusal of asylum, Article 3 relief and humanitarian claims.