AH (Failed asylum seekers – involuntary returns) Eritrea CG  UKAIT 00078
Date of hearing: 14 August 2006 and 9 October 2006
Date Determination notified: 27 November 2006
|Secretary of State for the Home Department||RESPONDENT|
Neither involuntary returnees nor failed asylum seekers are as such at real risk on return to Eritrea. The country guidance on this issue in IN (Draft evaders – evidence of risk) Eritrea CG  UKIAT 00106 and KA (Draft related risk categories updated) Eritrea CG  UKIAT 00165 is confirmed. NB: This decision should be read with WA (Draft related risks updated – Muslim Women) Eritrea CG  UKAIT 00079
"1. Permission was granted by a Vice President of the Immigration Appeal Tribunal and the matter now comes before us as a reconsideration under the transitional arrangements. The Appellant is a national of Eritrea and seeks reconsideration of the determination of an Adjudicator Mr John P McClure which was promulgated on 15 February 2005, wherein he dismissed an appeal against a decision of the Respondent, who had refused leave to enter and asylum and human rights claims.
2. The Vice President in granting permission stated that:
"Arguments are advanced on the generalised risks on return in ground 2 and these may merit further scrutiny. Criticism was made of various country guideline cases including SE  UKIAT 00295."
3. It is to be noted at the outset that the determination in SE was withdrawn as a country guidance determination in May 2004 [in fact May 2005].
4. We asked the parties to address us firstly on the issue of whether there was a material error of law in the determination of the Adjudicator.
The Appellant's Submissions
5. Mr Jackson stated that he adopted the grounds which were presented in support of the application for permission. The risks "per se" are set out between paragraphs 3 and 17 of those grounds.
6. He submitted that the Adjudicator had failed to address the lengthy arguments that had been put up by him as Counsel before the Adjudicator on the risks to this Appellant as a failed asylum seeker who, it would appear, would be forcibly returned to Eritrea. He noted that there was some reference to arguments he had presented between paragraphs 26 and 29 of the determination but that these failed to address the lengthy criticisms that he made in relation to the Tribunal determinations in SE and GY  UKIAT 00327. At paragraph 26 the Adjudicator had referred to paragraph 27 of the decision in SE stating that "it is made clear that mere returnees are not at risk." The Adjudicator had also gone on to note that SE considered the May 2004 Amnesty International Report. Mr Jackson submitted that unfortunately this overlooked a critical distinction that needed to be made between a mere returnee and a failed asylum seeker who was forcibly being returned to Eritrea. He submitted that the Adjudicator had failed to give the detailed consideration to this issue that was required. In the hearing before the Adjudicator, as set out in his grounds, he had challenged the findings in paragraph 26 of the determination in SE stating that it had a lack of rigour as it omitted to specifically address the potential problems for those who were forcibly returned. He advised us that he had given submissions on this issue for more than twenty minutes before the Immigration Judge and the arguments, as set out in the grounds, had been fully covered with the Adjudicator. Unfortunately they were simply not picked up at all in the conclusions of the Adjudicator. Some reference at paragraph 57 was made but again the Adjudicator had failed to address the very serious issues and challenges that had been made to the determinations in SE and GY. In this situation, particularly as the supporting information set out in the Amnesty International Report of May 2004, which had also been before the Adjudicator, had indicated that such persons who were forcibly returned "would particularly be at risk". He submitted that this was a very categoric statement. His submissions to the Adjudicator on this point, and his challenge to the validity of the determination in SE that flowed from this, simply were overlooked by the Immigration Judge. This he submitted was a material error of law.
The Respondent's Submissions
7. Mr O'Leary submitted that the Adjudicator did appear to have covered the evidence that was before him by making reference to it between paragraphs 26 and 30. He submitted it was not necessary for the Adjudicator to cover in detail all of the submissions that had been put to him and that his conclusions, reached in the round, could therefore be seen as sustainable. He asked us to note that the determinations in GY and SE had been considered by the Adjudicator, along with the objective evidence that was mentioned. The Adjudicator had found the Appellant largely lacking in truthfulness and accordingly had given no weight to his claim that he was a deserter or that he would be at risk as a returnee. He agreed that more detail may have assisted but submitted that the decision itself was not a perverse or unreasonable one. The Adjudicator had relied on SE, which at that time was good law, and possibly still continued to be so. Indeed he submitted that the situation for returnees had not altered and had been reinforced in the very recent country guidance determination in KA (Draft Related Risk Categories Updated) Eritrea CG  UKIAT 00165 promulgated 25 November 2005. In this situation he submitted we should uphold the decision.
8. In reply Mr Jackson submitted that SE was not authority on the issue of failed asylum seekers and paragraph 27 of that determination did not engage with the issue of forced returnees. Most of that case was about risks to deserters. The reasoning within SE was substantively flawed particularly by reference to the objective material and the failure to consider the arguments in that regard. Accordingly that rendered the determination of this Adjudicator substantially flawed. He referred us, as an example, to the reports of the returnees from Malta which were covered in the Amnesty International Report (page 120 of the bundle). That report stated that some 95 of the persons returning were civilians and not army deserters, indeed they amounted to some 43% of the total number of forced returnees. However that 43% continued to be detained incommunicado and gave clear evidence of the burden of proof being established at the lower standard.
9. The decision and reasoning therefore was perverse and unreasonable in the light of the submissions presented.
10. At this point we briefly adjourned to consider the error of law point.
Conclusions on Error of Law Point
11. After very careful consideration of the grounds submitted by the parties, and the determination of the Adjudicator together with their own study of the determinations in GY and SE, we conclude that there has been a material error of law on the part of the Adjudicator. There has been a failure to consider the substantive arguments of the Appellant on the position of failed asylum seekers who are forced to return to Eritrea and their risks on return.
12. We then considered whether we should go on to determine the matter ourselves and hear further submissions or evidence. Before doing this we gave some consideration to the very recent determination in KA, which, on the face of it, appeared to state that it confirmed previous decisions that "returnees are not generally at risk." That decision also, specifically addressed that issue between paragraphs 54 and 59. From our brief consideration of those paragraphs we are not fully satisfied that the distinction raised by Mr Jackson between "mere returnees" and "failed asylum seekers who are forcibly returned" is determinatively spelt out. We therefore concluded that the most appropriate action for us to take was to adjourn this matter for the continuation hearing where that issue could be specifically addressed, particularly in the light of the very detailed and related issues set out in KA. We therefore direct that a for mention hearing be held at a mutually convenient date either before the end of the year or early after the New Year vacation. At the for mention hearing all of the issues that are to be considered can be settled and estimates of the time, necessity for interpreters and other relevant supporting information can be settled. It appeared appropriate to us that the matter should be set down before a full legal panel so that this somewhat specific issue, upon which country guidance would be valuable, could be settled."
Further Directions on the Country Guidance Issue
The evidence of Dr June Rock
The report of Dr Gaim Kibreab
The written evidence from Mr Bennett
The written evidence of Mr Carlyle
Consideration of the issues
'The evidence does not support a proposition that there is a general risk for all returnees. The determinations in SE and GY are confirmed in this respect. Insofar as they dealt with the risk arising from the evasion of military service, they have been superseded by further evidence and on this issue should be read in the light of this determination.'
The issue was considered again in KA which confirmed in its conclusions in paragraph 113 (c) that:
'The Tribunal continues to take the view that returnees generally are not at real risk of persecution or treatment contrary to Article 3. We do not consider it has been substantiated that failed asylum seekers would be regarded by the Eritrean authorities as traitors and ill-treated in consequence.'
We must now consider whether there is any proper basis on which we should revise that view.
'Our knowledge concerning the real risks failed asylum seekers face at the port of entry is mainly based on the gruesome experiences of those who are forcibly deported from Malta and Libya, as well as individual Eritreans caught in the act of fleeing to Sudan or Ethiopia. The way the Eritrean government treated the deportees from Malta and Libya is well documented and shall not be repeated here. In the course of my research, I have interviewed many family members, relatives and friends of Eritreans who were caught by the army while fleeing the country to evade conscription, to desert from the army, or for fear of persecution on account of their religion (membership in banned evangelical churches, Jehovah's Witnesses and minority Muslim groups) political opinion, membership in or sympathy with banned political organisations or for other reasons. These interviews were conducted within and outside Eritrea. The interviewees invariably reported that although they knew that their loved ones or relatives were caught while trying to cross into Sudan or Ethiopia, they were unaware of their whereabouts. Most of them were not even sure whether they were still alive.
Are the risks individual failed asylum seekers face on return identical to those risks faced by the failed border crossers and the deported from Libya and Malta? There is no reason to suggest otherwise. Some of the deportees from Malta were not evaders or deserters. That was why those who were not evaders, deserters and beyond the eligible age were released after some time. All those who were of eligible age and those who fled either to evade conscription or to desert from the army are still languishing incommunicado detention in unknown places and are most probably subjected to torture and other forms of inhuman treatment. The same is true of those who are deported from Libya and those who are caught fleeing the country. As we saw, in the first part of this report, torture and degrading treatment are common practice in Eritrean detention centres and prisons. Any person who flees the country to evade conscription or to desert from the army and is either caught in the act of fleeing or is returned because his/her application for asylum is rejected faces real risk of persecution upon return.'
'Although all failed asylum seekers face generalised risk on return, it is still necessary to make distinctions between the different categories. The differences between the various categories of failed asylum seekers may emanate partly from their pre-flight age, status and activities and partly from their political activities and positions in the country of asylum concerned, e.g. UK. The reason why a distinction between different categories may be necessary is because even though all failed asylum seekers face real risks of persecution, the scale of the risks are likely to vary depending on the gravity of the "crime" as perceived by the government. In the following 24 categories of failed asylum seekers who face varied risk on return are identified.'
'The central aim of this often hostile and violent questioning is to establish the identity of the person or persons concerned, when she left the country, under what circumstances, why and how as well as to document their political activities and position in exile. More often than not, this may involve soliciting of information from Eritrean embassies, PFDJ offices and individual agents aboard who keep records, including photos and audio visual evidence taken in association with demonstrations or public meetings.'
"From [the appellant's] statement, it is clear that he falls into the category of desertion. If he is returned to Eritrea, he is at real risk of persecution"
However, this was not the finding of fact made by the Adjudicator.
"Thus, given the appellant's age (thirty-two years old) together with the fact that he was allegedly still in the army, it is highly unlikely that he would have been granted an exit visa and will almost certainly face the risk of detention or worse as a deserter on return."
If the Adjudicator had accepted that the appellant was at real risk of being viewed as a deserter, we would agree in accordance with the guidelines in IN and KA that there would be a real risk of persecution. In substance it seems to us that the point Dr Rock was seeking to make was that the Adjudicator was wrong to find that the appellant was not as a deserter because no-one can finally complete their military service because of the liability to recall for further service. However, this is a challenge to the Adjudicator's findings of fact and it has not been shown that there is any proper basis for a challenge on legal grounds to those findings. We also note from Dr Rock's oral evidence her comment that she is aware of long term "asylum seekers" returning to visit Eritrea and distinguishing between those who left the country before 1998 and afterwards. Although the matter was not explored in evidence, in the light of the lapse of time certainly since 1998, the likelihood is that those who return to visit will be those who have been granted asylum or some form of subsidiary protection. If it is the case that some people who have applied for asylum in the past are now able to return for a visit, this must inevitably undermine any submission that all failed asylum seekers would be at risk. If not even all successful asylum seekers are at risk, it cannot be argued that all failed asylum seekers are at risk.
'Between 2001 and 2004 some 121,000 Eritrean refugees returned to their homeland, the majority from Sudan. The government of Sudan currently estimates that close to 110,900 Eritreans remain in the country. Many have been there since the 1960s, one of the longest refugee situations UNHCR has ever had to deal with. Last year over 9,800 refuges returned to Eritrea from Sudan, less than the UNHCR had planned for.'
'It is part of a UNHCR organised voluntary repatriation operation designed to assist Eritrean refugees to return to their home country in safety and dignity after more than thirty years of exile in Sudan. So far, more than 118,000 refugees have returned home under this programme since it began in 2002 including more than 3,200 this year.'
'The repatriation of Eritrean refugees from Sudan passed the 50,000 mark last weekend when the ninety-first convoy in the year old return operation crossed from the eastern Sudan town of Kassala to Tesseney in western Eritrea. Sudan's convoy took home 960 Eritrean returnees, the majority of them from Port Sudan, Sudan's north eastern port city on the Red Sea. This brought to 50,479 the total number of returns to Eritrea since the beginning of the voluntary return operation in May last year.'
Senior Immigration Judge Latter
Report prepared by Dr Giam Kibreab 1 August 2006.
Report prepared by Dr June Rock 4 August 2006.
Reports submitted by appellant relating to country situation in Eritrea.
US State Department Country Report 8 March 2006.
US State Department Report, "Supporting Human Rights and Democracy" 5 April 2006.
European Parliament: Motion for a Resolution on Human Rights Violations in Eritrea 15 November 2004
Human Rights Watch Country Report 18 January 2006.
Annual Report of US Commission on International Freedom 3 May 2006.
Amnesty International, "Eritrea Religious Persecution" 7 December 2005
Voice of America News, "Eritrea Orders Aid Group to Stop Activities. 23 March 2006.
International Press Institute, "2005 World Press Freedom Review" 30 March 2006.
Committee to Protect Journalists, "Ten most Sensitive Countries (Eritrea Excerpt) 2 May 2006.
Reporters Sans Frontieres, "Eritrea Annual Report 2006" 3 May 2006.
Interpress Service News Agency, 1 May 2006.
BBC News "Quick Exit: BBC Expelled from Eritrea", 10 September 2005.
Amnesty International "Eritrea you have no right to ask, government resists scrutiny on human rights" dated 19 May 2004.
Eritrea CIPU Report dated October 2004.
Royal African Society Lecture, "Refugees and African Development: the Case of Eritreans in the UK", 14 July 2005.
The voice of America News: "Eritrean Reportedly Detained Relatives of Military Service Evaders" 29 July 2005.
Reuters: "Eritrea Detained Thirteen UN Staff, Thirty More in Hiding UN" 14 February 2006
Middle East Times "Eritrea Free Nearly All Detained Local UN staff" 23 February 2006.
Reuters: "Eritrea Re-registering De-mobilised Soldiers" 23 February 2006.
COI Report Extract 28 April 2006.
COI Report, "Treatment of Returned Failed Asylum Seekers, 26 April 2006.
Human Rights Watch Letter 8 August 2005.
UNHCR letter re Validity of UNHCR Eritrea Position. 21 October 2005.
Home Office letter re Removals to Eritrea. 10 January 2006.
Home Office etter re Removals to Eritrea. 10 February 2006.
International Organisation for Migration letter re voluntary assisted return reintegration programme to Eritrea. 5 April 2006.
Swiss Refugee Council letter re Return of Failed Eritrean Asylum Seekers to Eritrea.
20 April 2006.
Amnesty International letter 21 April 2006.
Human Rights Watch letter 5 May 2006.
Reuters UNI's scaling back its Ethiopia/Eritrea Mission. 13 April 2006.
BBC News: "Eritrea to Expel UN Peacekeepers". 17 December 2005.
EUN Threatens to pull out of Eritrea Ethiopia Border Dispute. 5 January 2006.
BBC News: "Horn Stalemate Shocks UN Envoy". 7 April 2006.
Eritrea Daily.net "Eritrea: A Myth of Self Reliance". 9 May 2006.
News 24.com "Eritrea Arrests UN Staff" 11 May 2006.
UK Home Office Science and Research Group COIS Eritrea Bulletin. March 2006
23 March 2006.
UN Economic and Social Council: "Civil and Political Rights including the Question of Religious Intolerance" 27 March 2006.
BBC News: "Eritrea Targeting Permitted Churches" 20 April 2006.
Open Doors USA, "Tragedy in Eritrea Hundreds of Christians Held in Squalid Prison Cells" 20 March 2006.
Compass Direct (USA) "Another Christian Pastor, Scores of Muslims Jailed in Eritrea". 19 April 2006.
BosNewsLife News Centre: "Eritrea Jails Seventy Five Protestant Conscripts for Reading Bibles and Praying" 6 February 2006.
BosNewsLife News Centre: "Eritrea Arrests Dozens of Church Leaders" 8 January 2006.
Religious Persecution Eritrea August 2004.
Documents submitted by respondent relating to country situation in Eritrea
COIS Report Eritrea October 2005
COIS Report Eritrea April 2006.
Operational Guidance Note, Eritrea dated 5 May 2006.
US Department of State Report 2005, dated 8 March 2006.
Returns of Failed Asylum Seekers to Eritrea in 2005 and 2006 by the UK and by EU States and Others - undated annex to statement of Mr J Bennett 6 October 2006.
Africa dialogue October 2005 Update of main voluntary repatriation operations in Africa in 2005.
UNHCR News Story: Eritrea Receives the biggest group of Returnees: 15 August 2006.
UNHCR Briefing Notes, Eritrea: Returns from Sudan surpass 50,000, 15 August 2006.
COIS Country of Origin Information Request relating to flights to and from Asmara 16 October 2006.