Abdi Roba v The Secretary of State for the Home Department

Extant country guidance is a legal presumption of fact. It must be followed unless cogent evidence shows both a material change in circumstances and that the change is well established and durable. The age of the guidance does not alter that rule.

Country guidance concerning Oromo Liberation Front supporters in Ethiopia remained applicable. A person is generally at real risk where they have been arrested or detained on suspicion of OLF involvement, or have a significant history known to the authorities of OLF membership or support. Significant does not require high-level involvement. It concerns whether the authorities perceive the person as having an anti-government agenda, assessed on the facts.

The appellant, an Ethiopian national of Oromo ethnicity, appealed against the dismissal of his protection appeal by the First-tier Tribunal. The First-tier Tribunal accepted his account of OLF support, arrests, detention and ill-treatment, but considered political changes in Ethiopia sufficient to remove any present risk.

An earlier Upper Tribunal decision set aside that determination for failure to consider the extant country guidance in MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030. The appeal was remade as a country-guidance case concerning OLF members, supporters and persons perceived to be such.

The central issue was whether the respondent had adduced cogent evidence of a sufficiently established and durable change to justify departure from the existing country guidance.

1. The appeal was allowed on Refugee Convention and article 3 grounds. The respondent had not displaced the extant country guidance. Her concession that she could not produce cogent evidence justifying departure was correct.

2. Country guidance is an authoritative factual presumption. A tribunal must adopt it unless a party establishes a justified departure. The required assessment is whether circumstances have materially changed and whether the alleged change is well established evidentially and durable. This rule is unaffected by the age of the country-guidance decision. A tribunal’s failure to apply relevant guidance without an expressly stated good reason may be an error of law.

3. The Tribunal held that the respondent’s optimistic country material did not adequately engage with evidence of renewed repression of the OLF. The material did not establish a durable change from the risk identified in MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030. That guidance therefore continued to apply, subject to clarification.

4. OLF members, supporters, and persons perceived as such are generally at real risk where they were previously arrested or detained on suspicion of OLF involvement. The same is true of those with a significant OLF history known to the authorities, or who are perceived to have one. Significant history does not mean a prominent or very high-level connection. It means that the authorities suspect the person of an anti-government agenda, a fact-sensitive question.

5. The appellant had a known family and personal OLF history, prior arrests, detention and torture, and was recorded as an escapee after release by bribery. His removal would expose him to a real risk of Convention persecution and treatment contrary to article 3.

6. The anonymity order was lifted, subject to a temporary stay to preserve any appeal process.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was previously set aside for failure to consider MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030. The Upper Tribunal remade the decision and allowed the appeal.
• First-tier Tribunal: On 18 July 2019, it accepted the appellant’s personal history but dismissed his protection appeal on the basis that changes in Ethiopia had removed the risk.