United Kingdom Asylum and Immigration Tribunal

 


TA (draft evasion – citizenship – evidence required) Eritrea [2005] UKAIT 00155

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 30 September 2005

Date Determination notified: 6 October 2005

Before
Mrs J A J C Gleeson (Senior Immigration Judge) Mr D R Bremmer, JP Mr M E A Innes
Between

TA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr D Bazini, of Counsel, instructed by Hammersmith & Fulham Commnity Law Centre For the Respondent: Miss R Brown, Home Office Presenting Officer
DETERMINATION AND REASONS

Where an appellant has never lived in Eritrea but is of second-generation eritrean origin, evidence required that she is entitled to an Eritrean passport. Draft evasion requires citizenship during period of call-up age. Absent cogent evidence to the contrary, a claimant who has never lived in Eritrea cannot be considered to have evaded the draft.

1. This is the reconsideration of the appeal of the appellant, an Eritrean national, who has been granted a review of the decision of an Immigration Judge, Mrs D M Head, dismissing her appeal against the Secretary of State's refusal to recognise her as a refugee and the setting of removal directions to Eritrea of which she is potentially a national. This decision is reported for what it says about Eritrean nationality and its effect upon perceived draft evasion.
2. The appellant was raised in Ethiopia and has never spent any time in Eritrea. She fled Ethiopia on 6 March 1999 ahead of possible deportation from Ethiopia to Eritrea at the hands of the Ethiopian authorities.
3. The Immigration Judge dismissed the appellant's appeal under the Refugee Convention and also under Articles 3 and 8 of the ECHR. The grounds of appeal relate only to Article 3 ECHR and contend that the Immigration Judge acted irrationally in distinguishing the facts of this appellant's core claim from the factual nexus in MA (Female draft evader) Eritrea CG [2004] UKIAT 00098 with reference to paragraph 28 of the Immigration Judge's determination. Paragraph 28 reads as follows:

"26. The appellant is 26 years of age. She was born and lived in Ethiopia until she left that country in March 1999. She has never lived in Eritrea or even visited the country. There are various references in the appellant's bundle to the fact that the appellant would be required to undertake military service in Eritrea and the consequences for her if she tried to evade military service or indeed deserted. There is nothing in the appellant's own evidence to suggest she is a conscientious objector or that she would not undertake her military service if so required. I have been asked to consider MA (Female Draft Evader) Eritrea CG [2004] UKIAT 00098.

However, in my opinion, the present case can be distinguished from MA because this appellant has never lived in Eritrea and therefore has never been served with call up papers. Thus the appellant cannot be seen as a draft evader or deserter and would not be subjected to the actions of the Military Police who it is reported in the CIPU report searched the country using road block, street sweeps and house to house searches to find deserters and draft evaders.

It is not clear from the objective material whether the age of conscription for women is 18 to 27 years of age or 18 to 40 years of age. It would seem that earlier CIPU reports have stated the age is 18 to 40 years whereas the current CIPU report April 2004 quotes the US Human Rights Report 2003 stating military service for women between the ages of 18 and 27 is compulsory. The appellant will be 27 years of age in five months time. It may well be that when she is removed to Eritrea she will be over the conscription age and therefore not required to do military service in any event. However, even if the appellant were required to undertake military service I am not satisfied that the conditions of her service, although harsh, would reach the very high threshold set for a breach of Article 3."

4. Mr Bazini asked the Tribunal to look at paragraph 3 of MA; although the appellant in MA contended that she had been served with call up papers, the Immigration Judge did not believe her. He argued that these two appellants should therefore be treated as being in the same position.
5. Miss Brown, for the Secretary of State, argued that the distinction drawn by the Immigration Judge at paragraph 28 of the Immigration Judge's decision was not that the appellant had been served with call up papers, but that she had never lived in Eritrea and therefore would not have come to the attention of the Eritrean authorities as liable to perform military service for that country. She argued that the Immigration Judge's decision and reasoning was perfectly clear and the two cases were indeed distinguishable. Again we turn to the guidance in R (Iran) at paragraph 90(3)-

"90(3) …a decision should not be set aside for inadequate reasons unless the Immigration Judge fails to identify and record the appeals which were critical to the decision on the materials issues in such a way that the IAT was unable to understand why he reached that decision".

At paragraph 91, the decision makes it clear that the observations continued to apply to the AIT.

6. Mr Bazini accepted that there was no clear evidence whether in the context of a nationality or travel document application, the Eritrean authorities would check whether the appellant had been called for military service or was eligible to serve, or indeed, whether they would accept her at all as a citizen. Mr Bazini asked the Tribunal to direct that an Immigration Judge consider that question by way of further reconsideration. If the appeal were to be further reviewed, he would seek to introduce up to date evidence as to how Ethiopians in general were treated in Eritrea which was in his bundle for the hearing, but was not relevant to the question of error of law.
7. Mr Bazini relied upon a finding of fact by the Immigration Judge that this appellant would be able to obtain Eritrean nationality, but pointed to a document in the appellant's bundle which contradicted that submission. The evidence consists of a letter from Refugee Action in the following terms –

"Dear Ms Baghabani

Further to our conversation on the phone today, I can confirm that I have contacted Eritrean Embassy in London on 8/3/05 on behalf of the above clients [names and personal details blanked out] and enquired about the procedure for obtaining passport or travel documentation for these clients. I was informed that Eritrean Authority would not be able to issue travel documents for individuals born in Ethopia."

If that were right, then there would be no risk to this appellant, as she would not be returned to Eritrea at all if the Eritrean authorities were not prepared to accept her as a national of that country. The appellant has not tested that point by applying for citizenship or travel documents as yet.

8. The Tribunal reserved its determination for postal delivery, which we now give. The question for this Tribunal is set out in the grant of leave: the Senior Immigration Judge considered that the Immigration Judge may have erred in distinguishing MA. The reconsideration jurisdiction of this Tribunal does not extend to errors of fact, and is limited to consideration of errors of law, which may in appropriate cases include errors of fact of such gravity as to amount to errors of law.
9. In effect, an Immigration Judge's finding of fact must be perverse for the Tribunal's error of law jurisdiction to be engaged. In R (Iran and Others v SSHD) [2005] EWCA Civ 982 Brooke LJ in the Court of Appeal set out the test for perversity as follows -

"11. … It is well known that "perversity" represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481, the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter.. "

10. There was a sharp division of opinion between Mr Bazini and Miss Brown as to how the sentence in paragraph 28 relating to distinguishing MA should be read. We have considered for ourselves whether we are able to understand the Immigration Judge's reasoning in paragraph 28. The relevant phrase is

" However, in my opinion, the present case can be distinguished from MA because this appellant has never lived in Eritrea and therefore has never been served with call up papers. "

We have no difficulty in understanding the distinction which the Immigration Judge drew between the appellant in MA (who had lived in Eritrea before coming to the United Kingdom) and this appellant (who had never lived in, or even visited, Eritrea). That is a valid distinction: this appellant is not, yet, an Eritrean citizen in any sense and has not yet acquired any liability to call-up. MA, on the other hand, had spent time in Eritrea and could be considered as having assumed her responsibility as a citizen of that state to undertake military service, which she had failed to do. That is the definition of a draft evader. In the present case, as a non-citizen, there is no evidence before us to suggest this appellant risks being perceived as a draft evader. There is no error of law in distinguishing MA on that basis.

11. Further, even had we found an error of law as alleged and that the appellant was in the same position as MA, we would then have to consider the background material filed by the appellant herself. The Immigration Judge noted (paragraph 26) that the appellant had no conscientious objection to service in the Eritrean military. She has never even visited Eritrea and to consider that a national of another country has evaded service in Eritrea is a bizarre concept, which would have required specific evidence that the Eritrean authorities would regard 'new Eritreans' as having nevertheless evaded military service at a time when they were not Eritrean nationals.
12. We recalled that the appellant came to the UK when she was about to be deported from Ethiopia to Eritrea and in order to return to Eritrea, of which she is currently not a national, she would have to apply for nationality from the United Kingdom. If nationality or travel documents were granted to this appellant, there was no evidence before us to help us in assessing how the Eritrean authorities would treat a person who had only just acquired Eritrean travel documents and had not performed military service.
13. The burden of proof is always on the appellant; in order to succeed in persuading us that any error in relation to the Immigration Judge's consideration of MA was material, she would have to show that on return a new Eritrean national nevertheless be treated as a draft evader, not simply as a person upon whom call-up papers could be served in due course now that she had adopted Eritrean nationality. The appellant has not done so and thus her alternative argument cannot succeed.
14. For all of the above reasons, we consider that there is no material error of law in the Immigration Judge's determination.

Decision

15. The original Tribunal did not make a material error of law and the original determination of the appeal shall stand.

Mrs J A J C Gleeson

Senior Immigration Judge

11 November 2005