IN (Draft evaders – evidence of risk) Eritrea CG  UKIAT 00106
Date of hearing: 20 February 2005
Date Determination notified: 24 May 2005
|Secretary of State for the Home Department||RESPONDENT|
Background to the appellant's claim
'The appellant is a failed asylum seeker. It is however implicit in Mr Jacobs' argument that the appellant is an Eritrean aged twenty-one who has not carried out his military service and that, on return, he would be subjected to the treatment meted out to returnees from Malta who are referred to in paragraph 23 of the IAT determination in MA Eritrea. I note however that in that case the appellant had been required to report at the age of sixteen for military training. The appellant in our appeal did not receive any call up papers and I have rejected his story about being forced to do military service. Even though he may well have been living in Eritrea during the time when fifteen year olds were subjected to forcible recruitment, he was not according to my findings ever recruited. He is someone who is liable to carry out military service. Mr Jacobs supplied me with a copy from the Africa director of HRW dated 3 August 2004 concerning refugees repatriated from Libya. It does not say what has happened to them but it refers to returnees from Malta. Mr Jacobs has helpfully supplied me with a marked bundle and I have read through it. The appellant is not someone who has fled Eritrea to avoid military service. He would have served in the armed forces to defend his country. I believe that this fact or attitude distinguishes him from the Malta returnees who were draft evaders. Upon return he will be able to declare his willingness to serve. As a result I find that there is no reason to believe that he will be subjected to the treatment referred to in paragraph 5.70 of CIPU. I do not believe that either of these Articles is engaged.'
The grounds of appeal
The submissions on behalf of the appellant
Submissions on behalf of the Secretary of State
The historical background
Human rights and military service
'Human rights violations continue in Eritrea on a massive scale. Thousands of government critics and political opponents – many of them prisoners of conscience who have not used or advocated violence – are detained in secret. Some have been held for several years. None has been taken to court, charged or tried. In some cases panels of military and police officers have reportedly handed down prison sentences in secret proceedings that flout basic standards of fair trial ... torture is systematically practised within the army for interrogation and punishment, particularly of conscription evaders, deserters and soldiers accused of military offences and members of minority churches. Torture is also used against some political prisoners. Furthermore, the atrocious conditions under which many political prisoners are held amount to cruel, inhuman or degrading treatment. ... The government dismisses the criticism from all sides of its appalling human rights record. It ignores the principle of the rule of law and flagrantly contravenes human rights safeguards in Eritrea's constitution and laws. (see: A40 and A41 extracts from the draft "Religious Persecution Eritrea: A Compilation of Commentary and Reports".
The Maltese Returnees
"Between 30 September and 3 October 2002, 233 persons were deported from Malta to Eritrea. 170 of them were reported not to have sought asylum, whereas 53 had been rejected in the asylum procedure (which was not known to the UNHCR at the time). They were reportedly arrested immediately on arrival in Asmara and taken to detention incommunicado. The Eritrean authorities neither acknowledged the detentions nor revealed the whereabouts of the detainees to their families or the public. Subsequent reports have suggested that those with children and those over forty (the conscription limit) may have soon afterwards been released but that the remainder were – and still are – kept incommunicado detention in secret places, described as halls made of iron sheets and underground bunkers. According to different sources, the detainees were deprived of their belongings (including shoes and clothes to change) subjected to forced labour, interrogated and tortured (e.g. by beating, tying up and exposing to sun as described above). The dwellings are said to be congested and lack any facilities for personal hygiene. Food and water provided for the detainees are inadequate and unclean. Consequently, many of the detainees have succumbed to illnesses, notably various skin conditions and diarrhoea. Medical treatment is said not to be available. Some detainees are believed to have died of their diseases and/or injuries. At least one person was allegedly killed by shooting during an escape attempt."
The Libyan Returnees
'Many young people have tried to evade military service and thousands have fled the country or deserted after being conscripted. The usual punishment for evading or escaping from military service is torture, by beatings and being tied in painful and contorted positions for days and indefinite detention without charge or trial. Hundreds of Eritreans who fled the country were forcibly returned by Malta in 2002 and by Libya in July 2004. They were arrested on arrival back in Eritrea, reportedly tortured and sent to a secret prison on Dahlak Island where most are still detained incommunicado.'
These events have been the subject of a Human Rights Watch letter to the Eritrean President dated 3 August 2004: A78-79.
The evidence relating to other returnees
The expert evidence
'Following cessation of the border war in the summer of 2000, it was widely expected that government would rapidly demobilise its armed forces to pre-war levels. However, despite the availability of international assistance for this task, no demobilisation of troops has occurred to date. Instead the government extended the length of service for an additional two years and it has been repeatedly prolonged. The government has not explained its decision but three reasons can be ascertained. First, political tensions with Ethiopia over the border remain high ... Second, in 2003 the government announced a new campaign – the 'Warsia Yakolo Plan' – to rehabilitate and reconstruct the nation which in the light of the refusal of the international community to provide funds will be undertaken by the armed forces. Third, conscription is apparently used to control dissent.'
The treatment of military deserters and draft evaders
The current country guideline and reported determinations
Further comments from the UNHCR
Consideration of the issues and conclusions
Summary of our conclusions
(i) On the basis of the evidence presently available, there is a real risk of persecution and treatment contrary to Article 3 for those who have sought or are regarded as having sought to avoid military service in Eritrea.
(ii) There is no material distinction to be drawn between deserters and draft evaders. The issue is simply whether the Eritrean authorities will regard a returnee as someone who has sought to evade military service or as a deserter. The fact that a returnee is of draft age is not determinative. The issue is whether on the facts a returnee of draft age would be perceived as having sought to evade the draft by his or her departure from Eritrea. If someone falls within an exemption from the draft there would be no perception of draft evasion. If a person has yet to reach the age for military service, he would not be regarded as a draft evader: see paragraph 14 of AT. If someone has been eligible for call-up over a significant period but has not been called up, then again there will normally be no basis for a finding that he or she would be regarded as a draft evader. Those at risk on the present evidence are those suspected of having left to avoid the draft. Those who received call up papers or who were approaching or had recently passed draft age at the time they left Eritrea may, depending on their own particular circumstances, on the present evidence be regarded by the authorities as draft evaders.
(iii) NM is not to be treated as authority for the proposition that all returnees of draft age are at risk on return. In that case the Tribunal found on the facts that the appellant would be regarded as a draft evader and also took into account the fact that there was an additional element in the appellant's background, the fact that her father had been a member of the ELF, which might put her at risk on return.
(iv) There is no justification on the latest evidence before the Tribunal for a distinction between male and female draft evaders or deserters. The risk applies equally to both.
(v) The issue of military service has become politicised and actual or perceived evasion of military service is regarded by the Eritrean authorities as an expression of political opinion. The evidence also supports the contention that the Eritrean government uses national service as a repressive measure against those perceived as opponents of the government.
(vi) The position for those who have avoided or are regarded as trying to avoid military service has worsened since the Tribunal heard MA.
(vii) 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. In so far as they dealt with a 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 facts of the present appeal
Background materials placed before the Tribunal
CIPU Assessments Eritrea Country Report April 2004
Amnesty International Update on Detained Jehovah's Witnesses: 26 November 2004
Amnesty International report on Indiscriminate Arrests and Imprisonment of thousand of suspected draft evaders: 9 November 2004
BBC – Eritrean Death Jail Deaths Overblown: 8 November 2004
AFROL News – UNHCR slams Libya for expelling Eritrea refugees: 21 September 2004
US State Department International Religious Freedom Report: 15 September 2004
IAS Report on Inaccuracies in Eritrea CIPU Report 9/2004
Christian Today - Small denominations face persecution in Eritrea: 18 September
BBC Religious Persecution in Eritrea: 17 September 2004
Amnesty International Further Information on Eritreans Deported in July: 6 September 2004
BBC Expelled from Eritrea: 10 September 2004
Jubilee Campaign USA Religious Persecution in Eritrea: August 2004
Human Rights Watch letter about Eritreans deported from Libya: 3 August 2004
Amnesty International Over 110 Eritreans Forcibly returned from Libya: 28 July 2004
You Have No Right to Ask – Government resists scrutiny on human rights amnesty: 19 May 2004
Amnesty International Country Report April 2004
Enough – A Critique of Eritrea's Post Liberation Politics March 2004
US State Department Report 2003: February 2004
UNHCR Position on Return of Rejected Asylum Seekers to Eritrea : 20 January 2004
Eritrea Country Update Human Rights Watch January 2004
Letter from UNHCR 11 February 2005
Letter from UNHCR 16 December 2004
Amnesty International Report 23 December 2004
Amnesty International Report 7 January 2005
Human Rights Watch 13 January 2005
Letter from UNHCR 10 March 2005
Report from Dr David Poole dated 15 February 2005
Report from Dr John Campbell dated 31 January 2005
Cases cited or referred to
MA (Female Draft Evader) Eritrea CG  UKIAT 00098
SE (Deportation – Malta - 2002 – General Risk) Eritrea CG  UKIAT 00295
GY (Eritrea – Failed asylum seeker) Eritrea  UKIAT 00327
YT (Kale Hiwot Church in Eritrea) Eritrea  UKIAT 00218
AT (return to Eritrea – article 3) Eritrea  UKIAT 00043
NM (Draft evaders – evidence of risk) Eritrea  UKIAT 00073
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