COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Immigration Judge Levin
Senior Immigration Judge Freeman
Immigration Judge Sacks
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE DYSON
| GM(ERITREA); YT(ERITREA); MY(ERITREA)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Andrew Nicol QC and Mr David Chirico (instructed by Wilson and Co) for MY
Mr Ben Collins (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing date : 7 May 2008
Crown Copyright ©
Lord Justice Buxton :
The current position in Eritrea: MA
…the government releases individuals from NS but requires them to undertaken compulsory employment either directly through the Ministry of Defence or with designated employers within the private sector but still on military pay….Such people are, it is plain from the evidence, at real risk of being regarded as deserters on return to Eritrea and seriously ill-treated….It must thus be considered as to whether those that we shall describe as "on reserve", as members of the NS, are likely to be perceived as deserters if they were returned following an illegal exit from Eritrea.
while it is plainly the case that many of those who exit Eritrea do so illegally, the evidence regarding visas issued by the UK Embassy in Asmara, read with the evidence regarding the range of categories of persons whom Dr Kibreab considered would be allowed to leave legally, shows that it cannot simply be assumed that an Eritrean claimant who has left Eritrea has done so illegally.
The issue in the light of the facts found in these cases
The burden and standard of proof
each case must be considered and assessed in the light of the appellant's individual circumstances. It may be, for example, that a person who is of eligible draft age, at least if he or she is still relatively young, will not need to establish very much more. However, we think that in all cases something more must be shown. It would be quite wrong, for example, for someone who has in fact obtained an exemption from military service, to succeed simply on the basis that he has shown he was of eligible draft age. Persons who fail to give a credible account of material particulars relating to their history and circumstances cannot easily show that they would be at risk solely because they are of eligible draft age.
A finding as to whether an Eritrean appellant has shown that it is reasonably likely he or she left the country illegally is therefore likely to remain crucial in deciding risk on return to that country….In making such a finding, judicial fact-finders will need to be aware of evidence that tends to show the numbers of those exiting Eritrea illegally appear to be substantially higher than those who do so legally and that distaste for what is effectively and open-ended service at the behest of the state lies behind a good deal of the current emigration from Eritrea. Nevertheless, where a person has come to this country and given what the fact-finder concludes (according to the requisite standard of proof) to be an incredible account of his or her experiences, that person may well fail to show that he or she exited illegally.
The facts as found: GM
the Appellant's claim not to be credible that he has escaped from military detention and consequently I am not satisfied even to the low standard of proof that he will be considered to be a military deserter upon his return to Eritrea.
The facts as found:YT
I see no reason to disbelieve the appellant's account of the earlier part of his service with the Eritrean Army, including the incident in 2000.
But, having analysed the history in some detail, and pointed to some elements in it that were not, taken in isolation, necessarily incredible, he held, at his §§ 22-24, that
Given the other serious difficulties with his history of detention, ill-treatment and escape, then despite what I might have been prepared to accept in isolation, I cannot regard it, taken as a whole, as even reasonably likely to be true…..I am not prepared to regard him as a witness of truth about any of his personal circumstances which are seriously in issue.
The facts as found:MY
The prime issue that I must decide is whether on the evidence I can find that this Appellant did leave Eritrea illegally. I find it difficult to accept that a person seeking to leave Eritrea illegally would attempt to do so by a route that would bring her to the attention of the authorities. If the Appellant left via Asmara airport as claimed then I would have expected having regard to her age that she would have been subject to the scrutiny of the officials at the airport. I do not accept that she would have been allowed to have left with the ease that she claims.
And the judge went on in some detail to find as incredible the details of MY's account of her departure, including that she did not know what name she was travelling under; never had her travel documents; and was out of hearing of the agent when he dealt with the immigration authorities both at Asmara and on arrival in the United Kingdom.
Having found the Appellant not to be credible as to the evidence as to the circumstances in which she left Eritrea I am left in the position whereby there is no evidence to satisfy me as to the means by which the Appellant did indeed leave Eritrea.
Three preliminary matters
The effect of conscription in the cases of GM and YT
It was accepted that GM and YT were young men who had been called up for national service in Eritrea. The Tribunal found in MA that, with immaterial exceptions, national service continued until the age of 50 (which plainly neither of these Appellants were). While the particular accounts which they gave of how they had come to desert were disbelieved, the Appellants submit that the Tribunal on the MA findings should nonetheless have concluded that they were deserters, that they could not have obtained exit visas to leave Eritrea lawfully and, therefore, on return they would have faced a real risk of ill treatment.
The evidence about and assessment of illegal exit from Eritrea
A person of or approaching draft age who fails to show that he or she left Eritrea illegally is not reasonably likely to be regarded with serious hostility on return even if the authorities are or would be reasonably likely to be aware that that person has made an unsuccessful asylum claim abroad.
The Immigration Judge continued:
In this case I have found as a fact on the evidence before me that this Appellant has failed to show that she left Eritrea illegally. Having made that finding I must therefore go on to apply the reasoning of the Tribunal in paragraph 448 of their decision and arrive at the decision that this Appellant is not reasonably likely to be regarded with serious hostility on return.
LORD JUSTICE LAWS:
Lord Justice Dyson :