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FN (Article 8 – removal- viable options) Eritrea [2006] UKAIT 00044

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 5 December 2005

Date Determination notified: 18 April 2006

Before

Dr H.H. Storey, Senior Immigration Judge

Mr Andrew Jordan, Senior Immigration Judge

Mr P. Rogers, JP

Between

FN	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr R. Solomon, counsel, instructed by Ziadies Solicitors

For the Respondent: Mr J. Gulvin, Home Office Presenting Officer

DETERMINATION AND REASONS

The assessment of an in-country Article 8 claim will normally first require consideration of (i) whether there are insurmountable obstacles to the appellant's family accompanying him or her abroad and then second, (ii) whether even if there exist such obstacles, there is a viable option of an entry clearance application.

The fact that before being able to apply for entry clearance a person may have to perform military service in his country of origin will not normally be a factor of any significance in assessing the proportionality of a return in the context of Article 8.

Introduction – the procedural history

The appellant is a citizen of Eritrea, born on 27 February 1984. He is twenty-one years old. He travelled from Ethiopia to the United Kingdom claiming to have arrived on 2 January 2001. We know, however, that he claimed asylum on 5 January 2001. On 23 November 2004, the Secretary of State made a decision refusing his asylum claim. A subsequent decision was made on 8 December 2004 to remove the appellant as an illegal entrant. Directions were given for his removal to Eritrea. This gave rise to a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 which the appellant exercised on 4 January 2005.

His appeal came before an Adjudicator, Miss S. Jhirad, whose determination was promulgated on 6 April 2005. She dismissed the appellant's appeal on asylum and human rights grounds. In an application for reconsideration under section 103A of the 2002 Act, a Senior Immigration Judge ordered reconsideration on the basis that the Adjudicator had arguably made a material error of the law.

At a hearing before the Tribunal, Dr H.H. Storey and Mrs L.A. Freestone concluded that there were material errors of law that vitiated both the immigration judge's conclusions on risk on return and on Article 8. Its reasons were as follows:

"1. On risk on return, the Immigration Judge accepted in paragraph 12 that the appellant had perhaps conscientious reasons for not wanting to perform military service and that he would face in consequence a penalty of three years detention. Given these findings his assessment that the appellant would not face a real risk of serious harm was contrary to the Tribunal Country Guidance on this issue.

2. On Article 8, the Immigration Judge erred in failing to consider, when examining whether the appellant would have a viable option of applying for entry clearance, that Eritrea currently imposes exit restrictions on those of eligible military age."

As a result of this finding and pursuant to the directions given by the Tribunal to the effect that no reliance could properly be placed upon the Immigration Judge's findings of fact, the reconsideration hearing at its second stage was directed towards the issues at large. The Tribunal also invited the parties to make submissions on the issue of whether, in view of the type of exit controls currently imposed by the Eritrean Government on its nationals, there could be a viable option of entry clearance in respect of those likely to be subject to such controls.

A summary of the claim

In a statement that formed part of his application of 15 January 2001, the appellant stated that he was born in Addis Ababa, Ethiopia, where he remained until 8 December 2000. He claimed that his father was an Eritrean, although his mother was Ethiopian from the Tigray Province of northern Ethiopia. The appellant has a brother born in December 1992. He said that his father was an army officer with the Revolutionary Armed Forces in the Mengistu regime. At some period in his career, his father was based in Asmara, Eritrea. The family did not vote in the referendum as they did not support Eritrean independence. Indeed his father had fought against the EPLF movement. The appellant stated that his father was arrested in July 1992 and that his whereabouts have remained unknown ever since. The appellant himself claimed that he had been subjected to persecution at the hands of the EPRDF government. In June 1998, he said that he had been questioned by the Ethiopian authorities about his nationality and had been forced to sign a document to say that he was Eritrean. At that time, he was 14 years old. As a result, he claimed that he was arrested by the authorities and detained pending his deportation to Eritrea. He was held at the Fiche detention centre from 4 October until 14 October 2000, (see the amendment contained in his second statement of 28 June 2004). During the course of his detention, he claims that he was ill-treated. His mother managed to secure his release to enable her to obtain medical treatment but on condition that he returned to detention when called upon to do so. During the time the appellant spent in a civilian hospital, arrangements were made for his departure from Ethiopia. His mother then paid for an agent to arrange his travel to the United Kingdom.

In the course of his interview, conducted at Lunar House in Croydon on 28 June 2004, the appellant stated that his mother and younger brother were in Kenya. Since his arrival in the United Kingdom, he has formed a relationship with MO, an Eritrean national who has been granted indefinite leave to remain. She is the mother of B, born 20 August 2003, aged 2. The couple now have a son, E, born on 4 May 2005 in London, where his parents now live. He is 8 months old. The birth certificate which we have seen indicates that the appellant's wife was also born in Ethiopia. The appellant told us in evidence that his wife has never sought and has not been granted Eritrean citizenship by the Eritrean Government and is a refugee.

The appellant claimed that, although he had never been to Eritrea, he feared the EPLF government there. In answer to question 27, he said he feared "individuals who were in Ethiopia and who are now in Eritrea who know about our family." Although he did not have any documentary evidence that established his mixed Eritrean/Ethiopian parentage, he said that he was provided with a special identity card.

For the purposes of this appeal, we heard the appellant's evidence as well as that of his wife. Both provided more recent statements each dated 14 February 2005, found at pages 1 to 7 of the appellant's bundle. In addition, we were provided with a skeleton argument in its original and in an amended form and background material attached to both. The witnesses gave evidence in Amharic.

The burden and standard of proof

In asylum cases, the burden of proof is upon the appellant. The standard of proof is a "reasonable degree of likelihood" sometimes expressed as a reasonable chance or a serious possibility. The question must be answered by looking at the evidence in the round and assessed at the time of hearing the appeal. We regard the same standard as applying in essence in human rights appeals although sometimes expressed as "substantial grounds for believing".

The documentary evidence before us

The documents submitted by the appellant include:

(i) the SEF and statement of 15 January 2001 (Annex E);

(ii) the second statement of 28 June 2004 (Annex F);

(iii) the appellant's bundle, paginated 1 to 360;

(iv) the appellant's statement of 14 February 2005 (pages 1-3 of the appellant's bundle);

(v) the statement of MO of 14 February 2005 (pages 6 to 7 of the appellant's bundle);

(vi) the skeleton argument with additional background material;

(vii) the amended skeleton argument (running to some 23 pages) with additional background material;

(viii) the October 2005 COI Service report from the Home Office Science and Research Group;

(ix) the Eritrea OGN v. 4.0 issued 21 November 2005;

(x) case law, including IN (Draft evaders – evidence of risk) Eritrea CG [2005] UKIAT 00106; KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165; SS (ILR, Article 8, return) Sri Lanka [2004] UKIAT 00126 .

The appellant's claim to be at risk in Eritrea

We turn first to the appellant's asylum and Article 3 grounds of appeal. The substance of the asylum appeal (and its associated Article 3 claim) is, therefore, the risk posed by his removal to Eritrea (whether temporary or otherwise) as an Eritrean national who has never been to Eritrea and who is of draft age. The specific areas of risk for this appellant are set out in a comprehensive submission somewhat inaccurately described as his (amended) skeleton argument.

The appellant's case is that he has a well-founded fear of persecution in Eritrea for the following reasons:

(i) he is of mixed ethnicity;

(ii) he will be perceived as an Ethiopian;

(iii) he is a member of a particular social group, namely, family members of parents of mixed ethnicity;

(iv) his perceived political opinion as anti-Eritrean and pro-Ethiopian;

(v) his perceived political opinion based upon the political beliefs of his father;

(vi) as a returned asylum-seeker of draft age, he will be perceived as a draft evader with the imputed political opinion as one who is opposed to the current Eritrean government;

(vii) as a person who refuses to perform military service, he will be similarly viewed as opposing the regime.

These grounds are summarised in paragraph 8 of the argument:

"In summary, the appellant claims a fear of persecution… from the Eritrean authorities… because his father was an opponent of the regime (as an army officer during the Derg regime and thereafter as an active member of the Eritrea Liberation Front (Revolutionary Council) and/or his father fought against the EPLF for fifteen years)( in consequence of which the authorities will attribute to him the political beliefs of his father), he is of mixed Eritrean/Ethiopian ethnicity (he will be seen as pro-Ethiopian and a spy in particular in light of the rising tensions between the two countries), he is a returned asylum seeker of draft age and he refuses to perform military service in consequence of which he will be perceived as a draft evader and imputed a political opinion opposed to the regime. Suspicions that he is a traitor and an opponent of the regime will be aroused because he is a returned asylum-seeker of draft age. As such he will be perceived to be a draft evader and therefore anti-government. He will be suspected of disloyalty and imputed a political opinion opposed to the regime. He will be arrested, detained and interrogated about his past and background. Family members of political opponents are targeted for arrest, detention and harassment. The government often uses national service as retribution for perceived criticism of government policies. The appellant is at particular risk because: his family did not vote in the independence referendum; they did not contribute financially to the Eritrean Government whilst living abroad; he did not return to Eritrea during the border war or thereafter; he is part Ethiopian, grew up in Ethiopia and speaks Amharic; whilst an army officer during the Derg regime his father was based in Asmara; his father fled Eritrea upon liberation; his father was an active member of the ELF (RC) and was arrested by the Ethiopian government in 1992 (the EPRDF was sympathetic to Eritrean nationalist aspirations) and Prime Minister Meles Zenawi was a former ally of the EPLF leader, his whereabouts is unknown; his father had fought against the EPLF for fifteen years; individuals who were in Ethiopia and are now in Eritrea would know about his family, his mixed race and his father's position in the Derg regime; he is of draft age (currently twenty-one years old); he will be a returned asylum seeker; he will be perceived to be a draft evader; he will refuse to perform military service."

The grounds are developed in pages 12 to 21 of the argument.

The appellant's evidence

In the course of his evidence to us, the appellant spoke of the date when he was first arrested in Ethiopia. It was pointed out to him by Mr Gulvin, who appeared on behalf of the Secretary of State, that in his SEF prepared with his solicitor's help, he had stated that this took place in June 1998. This appears in answer to question 8 of his SEF (Self Completion) and on page 3 of the associated statement of 15 January 2001. In his subsequent statement, the appellant altered this to say that he was first detained on 2 October 2000. He claimed before us that this was the correct date and that the error in his previous application and statement was as a result of an interpretation error made by his solicitor. He went on to say that between 1998 and 2000, the Ethiopian authorities came to see him on several occasions about his Eritrean nationality. He said that on each occasion they came to his home, they searched for documentation about the Eritrean government. He told us the authorities closed down his mother's shop, although did not otherwise target her. In cross-examination, he accepted that the authorities first started coming to see him in 1998 when he was about 14. He stated that he did not know how many times they searched his home but it was definitely more than three or four times.

The Tribunal's analysis of the appellant's claim

In the statement made by the appellant on 26 June 2004, he refers to soldiers coming to his home in June 1998 but makes no reference to repeated visits by the authorities between 1998 and 2000. He claims it was in June 1998 that he was required to declare that he was an Eritrean and was forced to sign a document to that effect, notwithstanding his protests that he was an Ethiopian.

It is the appellant's case that his father was arrested in July 1992, when the appellant was just eight years old. Thereafter, his mother, an Ethiopian, maintained a small clothing shop in Addis Ababa. He had an unremarkable upbringing with his brother in a single-parent household. He claims that in 1998, when aged 14, the Ethiopian authorities first targeted him because of his father's Eritrean ethnicity and activities and then made repeated searches of his home in an attempt to find incriminating material about Eritrea. The appellant himself had no dealings with any political organisation and, given his age, it is inconceivable that he would have stored material likely to be of any interest to the Ethiopian authorities or that the authorities might reasonably believe it likely he had. If it is not reasonably likely that the authorities would have searched his home on a single occasion, it is even less likely that they would have made repeated searches. We do not accept that, as a teenager living with his Ethiopian mother in Addis Ababa, the authorities would have had any interest in the appellant six years after his father had left the home. We are supported in that conclusion by the conflicting evidence he has provided as to the date of his first arrest. Whilst, of course, mistakes occur in interpretation or by solicitors' carelessness, we do not consider the same error would have been occurred at exactly the same point in the narrative both in the SEF and in the statement associated with it. We do not consider it credible that the Ethiopian authorities would have shown any interest in the appellant bearing in mind his age and the fact that his father had left in 1992.

The appellant went on to say that he was held in detention and ill treated to such an extent that he required medical treatment that the authorities refused to provide him. He claimed that his mother pleaded for his release and two prominent people agreed to sign as sureties to enable him to be released in order to obtain medical treatment. The arrangement was made on condition that he would be returned to detention when he felt better, (see page 4 of his first statement). He told us that he was discharged from hospital on 22 October 2000 and went into hiding. At one stage he told us that he did not see his mother again before he left Ethiopia because he was in hiding. He altered this account to say that he last saw her on the date he left on 8 December 2000. He explained that he could not see her before because the authorities might have been following her. Once again, we are unable to accept the appellant's account of his release from custody so as to enable him to obtain medical treatment on condition that, when it had been completed, he would return to custody. We regard this as inherently implausible given the appellant's evidence as to the hostility shown towards him by the authorities. In his statement, the appellant asserts that whilst it was in hospital and his mother was making arrangements for his departure from the country, the house was, once again, ransacked by the authorities on two separate occasions in a search for documents such as a list of Eritreans who contributed money for the Eritrean cause. We do not consider it is remotely possible that the Ethiopian authorities suspected the appellant of having such information bearing in mind his history or that they would continue to show the level of interest in him he claims whilst, at the same time, releasing him from custody on the promise of a voluntary return. The evidence of continued raids on the house is inconsistent with his release from custody.

Our conclusions on the facts

For these reasons, we consider that the centrepiece of his claim to be at risk in Ethiopia falls away. We do not consider that the appellant was of any interest to the authorities during his teenage years as a result of his father's Eritrean ethnicity. We reject his account to have been arrested either in 1998 or in 2000 and to have been subjected to torture whilst in detention, necessitating medical treatment. We are not satisfied that the activities of the appellant's father in 1992, when the appellant was eight years old, had any consequences for the appellant during his minority or until the time he left Ethiopia. Having reached this conclusion, we are not satisfied that the appellant is a reliable witness as to the true circumstances in which he came to leave Ethiopia. Further, these findings undermine his claim centred upon his father's military or political activities either in Ethiopia or in Eritrea. We are not satisfied that his claims about any of his father's activities are true.

For these reasons, we reject any claim advanced by the appellant based upon perceived political opinion arising from the political beliefs or activities of his father. We accept, however, the unchallenged evidence that his father is Eritrean and that, accordingly, the appellant is entitled to Eritrean citizenship based upon his father's nationality.

The refusal to perform military service and the risk on removal to Eritrea

We next turn to consider the appellant's claim to be at risk by reason of a settled intention to refuse military service. This was stated to arise because he did not wish to fight Ethiopians: see his statement of 14 February 2005, appellant's bundle page 4. This claim, of course, sits uneasily with his claim that the Ethiopian authorities targeted and ill-treated him because of his Eritrean ethnicity.

The Amnesty International report dated 19 May 2004 notes that:

"In November 1991 the new EPLF government issued regulations to make national service compulsory for all citizens. The first intake of national service was in 1994 and it continued in staged phases since then. Under the revised national service regulations of 23 October 1995, national service is compulsory for all citizens aged between 18 and 40 years, male and female. It consists of six months of military training (performed at Sawa military training centre near Tessenei in western Eritrea) and 12 months of 'active military service and development tasks in military forces' under Ministry of Defence authority. It extends to military reserve duties up to the age of 50. It may be continued under 'mobilisation or emergency situation directives given by the government' ".

The same report provides that the legal penalty for evading conscription or assisting evasion is two years-imprisonment but in practice offenders are punished administratively by local commanders without any form of trial, legal recourse or opportunity for appeal or redress. The forms of punishment consist of torture and arbitrary detention for an indefinite period. Although these punishments are unlawful and an abuse of human rights, they are well-known to government and military officials and the public, and no army officer has ever been punished for employing them.

We are satisfied that the appellant does not wish to return to Ethiopia or Eritrea. Not surprisingly, he wishes to remain in the United Kingdom with his wife and new family. He has put forward no religious or philosophical basis for avoiding the draft. We have already determined that the true circumstances in which the appellant came to leave Ethiopia have not been established and that we are not satisfied it reasonably likely it was as a result of persecution. We are not persuaded that he has held or holds any reasons of conscience in relation to military service; and, in considering his evidence in the round we consider that in his case his claim that he does not wish to fight Ethiopians to be no more than an alternative method of saying that he does not want to be a soldier – a fact which we accept but it is not, in our judgment, underpinned by any strong moral compunction. On removal to Eritrea, the appellant will have a stark choice: he will be required to perform his military service or face the consequences of not doing so. Given his failure to establish any deeply-felt moral scruples against conscription, we are satisfied to the point of being sure that he will comply with the draft. In reaching this conclusion we bear in mind the consequences to the appellant of conscription. He will be involved in the six month period of military training followed by 12 months active military service and/or development tasks in military forces. Military service may or may not involve combat. There is also a risk that military service will be extended but it is not so clear that such an extension is a reasonable likelihood. By comparison, the consequences of refusal are much more severe and, given the absence of any credible evidence establishing the appellant will elect the latter, the reality is that, albeit grudgingly, the appellant like most other conscripts will perform military service.

At the hearing before the Adjudicator, she noted in paragraph 11 of her determination that there was no evidence of an attempt to go to the Eritrean Embassy to obtain verification of his Eritrean nationality. No additional material was presented to us on this subject. The appellant has not been called up for military service and his actions in leaving Ethiopia and coming to the United Kingdom do not readily suggest he will be perceived by the Eritrean authorities as pro-Ethiopia, anti-Eritrean, a political opponent or an Ethiopian spy. Although it is argued that this will be the perception by the Eritrean authorities, it can only be an inference drawn from the background material.

We were referred to the US State Department report for 2004 (page 9 of 13) to the effect that, in general, Eritrean citizens have the right to return subject to payment of 2% of their foreign income in order to secure eligibility for some government services. We have also considered the Amnesty International report of 7 January 2005 of the treatment meted out to four Eritrean soldiers who were refused leave to enter Djibouti and were summarily returned. (Page 144 of the appellant's bundle refers.) These cases follow the well-documented returns from Libya (pages 159-162) and Malta (pages 234 -235). The Home Office itself recognises the risk faced by some returnees in its Operational Guidance Note of November 2005:

"3.7.8 Conclusion. If it is accepted that the claimant is of military service age, has previously received call-up papers and left the country having refused to undertake military service or has undertaken military service or training but has escaped, then it is likely that they will be of due interest to the authorities. As the Government effectively views those who evade service or desert from the military as political opponents, the treatment by the authorities of individuals known to have deserted or evaded military service is likely to amount to persecution under the terms of the Convention. The grant of asylum in such cases is therefore likely to be appropriate.

3.7.9 Nevertheless, an individual of military service age is not automatically viewed as an evader or deserter simply because they fall within the age range. If the claimant is of military service age but has not received call-up papers, has not previously received any other direction to undertake military service, has completed their military service or has not previously come to the adverse attention of the authorities, then it is unlikely that they will be of undue interest to those authorities. Similarly, if someone falls within an exemption from the draft, is outside the age for military service or has been eligible for call-up over a significant period but has not been called up there would be no perception by the authorities of draft evasion. Such claimants are unlikely to encounter ill treatment amounting to persecution within the terms of the Convention. The grant of asylum in these cases is therefore not likely to be appropriate.

3.7.10 Claimants who present an objection to military service on religious grounds (see 3.6 above), would be subjected to ill-treatment amounting to persecution within the terms of the 1951 Convention as a result of these beliefs and should be granted refugee status."

In KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165, the Tribunal updated the analysis of risk categories undertaken in IN (Draft evaders – evidence of risk) Eritrea CG [2005] UKIAT 00106 and confirmed the previous Tribunal view that returnees are not generally at risk. It reaffirmed the view that those who would be perceived as draft evaders or deserters would be at risk. In contrast, persons of eligible draft age, whilst being regarded by the Eritrean authorities with suspicion, would only be treated adversely if they were unable to explain their absence abroad. The appellant's grounds of appeal relied heavily on a January 2004 UNHCR position paper entitled 'UNHCR Position on Return of Rejected Asylum Seekers to Eritrea' which highlighted evidence concerning the fate of persons returned by Malta to Eritrea in 2002 and posited in the light of this evidence an extremely wide risk category – all Eritrean rejected asylum seekers. The Tribunal drew a narrower definition of those at risk, summarised in paragraph 113 of the determination:

(b) The Tribunal confirmed the view taken in IN that persons who would be perceived as draft evaders or deserters faced a real risk of persecution as well as treatment contrary to Article 3.

(c) The Tribunal continues to take the view that returnees generally are not at real risk of persecution or treatment contrary to Article 3. It did not consider that failed asylum seekers would be regarded by the Eritrean authorities as traitors and ill treated in consequence.

(d) The Tribunal continues to reject the contention that persons of eligible draft age are by that reason alone at real risk of persecution or treatment contrary to Article 3.

(f) Subject to the remarks set out in sub-paragraph (e), persons of eligible draft age (defined in the context of return as being between 18 and 50 for men and 18-40 for women) were currently at real risk of persecution as well as treatment contrary to Article 3 unless:

(i) They can be considered to have left Eritrea legally.

(ii) They have not been in Eritrea since the start of the war with Ethiopia in 1998 (that being the year when the authorities increased dramatically the numbers required for call up and took the national service system in a much more authoritarian direction) and are able to show that there was no draft-evasion motive behind their absence.

(iii) They have never been to Eritrea and are able to show that there was no draft-evasion motive behind their absence. If they have not yet obtained formal nationality documents, there is no reason to think they will be perceived as draft-evaders.

(g) Nevertheless, even those of draft military age who would not be considered at real risk of serious harm (because they come within (i) or (ii) or (iii)) would still be at such a risk if they hold conscientious objections to military service.

(h) Otherwise, the Tribunal did not consider that mere performance of military service gives rise to a real risk of persecution or treatment contrary to Article 3.

Our conclusion on the risk on removal

Applying these guidelines, the appellant as a person who has never been to Eritrea and who has not yet obtained formal identity documents, does not fall into a category at risk. Nor is he a conscientious objector. Contrary to what is asserted in the appellant's submissions, he will not be perceived as a draft evader or as a person holding views opposed to the regime. No investigation is likely to reveal a background of activities in Ethiopia that will place him at risk in Eritrea, either as a result of his own, or his father's activities. His mixed ethnicity does not automatically give rise to a risk of harm.

For these reasons, the appellant's asylum and Article 3 claim fails. If these claims fail, he will be removed to Eritrea, unless he can establish that his removal will violate his right to family or private life within the terms of Article 8.

The appellant's Article 8 claim

Where there is a viable option of the entire family relocating in the country of origin (or somewhere else), it is necessary to consider where there are insurmountable obstacles preventing the move. Such consideration is part of the examination of the various factors that are the substance of the balancing exercise performed under Article 8. In those cases where there is the option of making an application from abroad for entry clearance under the Immigration Rules, the immigration judge is not thereby discharged from a similar careful examination of the various factors that are the substance of the balancing exercise performed under Article 8.

In our view it will normally be necessary to address both of these issues when considering whether a decision to remove is proportionate, since an appellant is not entitled to succeed unless he can show that neither option is viable.

It will normally be appropriate to address these two issues in the order we have outlined for the following three reasons. Firstly, Article 8 does not enshrine a right for foreign nationals to enjoy private or family life in the territory of a Member State: see Abdulaziz v United Kingdom (1985) 7 EHRR 471. It follows that generally speaking persons who have private or family life relationships can be expected to continue or resume those in their country of origin or elsewhere: they cannot expect that they can enjoy them in the UK. Secondly, because there is no right to enjoy private or family life in the territory of a Member State, the mere fact that a person has established or developed private or family life relationships here does not in itself give rise to any basis for stay. It will normally only be in cases where it has been established that the private and family life relationships concerned have particular strength and content that it would be permissible not to dismiss the claim on the basis that there disruption of it will not amount to an interference or a disproportionate interference, whether or not there exist insurmountable obstacles to it being resumed elsewhere.

However, where the strength of private and family life relationships in the UK, together with other factors, is such that there exist insurmountable obstacles to family life being enjoyed elsewhere, an appellant has then gone some way to showing he can succeed in an Article 8 claim – subject to being able to show that entry clearance is not a viable option.

A third reason is that by dealing with both issues there can be no question of an immigration judge failing to make full findings on the Article 8 issues. This way it is made known to the parties what the essential findings of the Tribunal are on both of the issues which generally arise.

We would accept, however, that there may be some cases where it is sensible for practical reasons to consider the second issue first. It is likely to depend essentially upon the facts of an individual cases as to which option is given greater attention and whether it is strictly necessary for both to be considered.

But if either option is viable, an appellant cannot succeed under Article 8.

In conducting the balancing exercise we have in respect of either option to take account of all relevant circumstances, including factors such as delay.

The Article 8 claim and whether there are insurmountable obstacles preventing the family's return

The appellant claims that his removal would violate his Article 8 rights and, in particular, the family life he enjoys with MO and their two children. In considering the Article 8 issue, we turn first to the issue of whether there are insurmountable obstacles to the appellant's family accompanying him to Eritrea to resume family life there.

MO gave evidence. She repeated her claim made in her statement that she was an Eritrean citizen who had no family in Eritrea and who had never been there. She said the Eritrean authorities would not accept her, notwithstanding a visit to the Eritrean Embassy in relation to her own case. The official there spoke of the requirement for three witnesses to attest to her identity. In any event, she said that she would not return to Eritrea.

Mr Solomon submitted that there was clearly an existent family life and that the decision to remove the appellant would interfere with that and that there would be insurmountable obstacles to MO accompanying her husband. In this regard she relied chiefly upon MO's refugee status in the United Kingdom as justifying her right to remain.

It was accepted by Mr Gulvin that the appellant enjoys family life in the United Kingdom and that a return to Eritrea on his own would involve interference in that family life. He submitted, however, that there were no insurmountable obstacles to MO accompanying her husband. He relied upon the decision of the Tribunal in SS (ILR, Article 8, return) Sri Lanka [2004] UKIAT 00126 (Ouseley J., President) to the effect that a prior recognition of refugee status does not automatically amount to an insurmountable obstacle. Such cases will depend upon a consideration of the specific facts upon which the claim had been recognised. There is no automatic insurmountable hurdle in the mere fact of the past grant of ILR. Mr Gulvin submitted that MO would not be returning as a lone single woman with children and no means of support (part of the basis upon which the Adjudicator allowed her appeal).

The determination in MO's claim is amongst our papers. It was notified in May 2003. We must accord due weight to the findings made by an Adjudicator (Mrs C. Bart-Stewart) in the context of an appeal in which the evidence is tested. There are, however, a number of features of her findings and reasons which we consider reduce the weight to be attached to the determination. In paragraph 31 of the determination, the Adjudicator recorded that the objective evidence was that the Eritrean Government placed restrictions on free movement in and out of the country. The Adjudicator said that the government had increasingly denied exit visas to young people to ensure they carry out their national service. However, this factor is of no direct relevance for MO because, like the appellant, she has never entered the country or gained recognition as a citizen of it. The Adjudicator also stated there had been instances where citizens living abroad had had difficulty on return and may also be required to prove that they had paid tax on their annual income while abroad in order to receive government services on their return. This is material that we have referred to above. It does not seem to us that a failure on the part of an Eritrean national who has lived abroad to satisfy the requirements for receiving services when in Eritrea gives rise to a claim of persecution or treatment that would violate the human rights of that claimant.

In paragraph 32 of her determination, the Adjudicator also referred to the difficulties faced by Eritreans who cannot demonstrate sufficient ties in order to obtain citizenship. MO and her witnesses gave evidence of the difficulties she would encounter in finding three witnesses willing and able to speak to the applicant's origins and parentage. The Adjudicator said:

"… the position is not sufficiently clear in respect of a person who cannot demonstrate their ties to Eritrea. Having never lived in the country or even visited, the appellant would be at a significant disadvantage."

The Adjudicator makes no express finding that MO would fail but confined herself to the comment that MO would be disadvantaged.

In paragraphs 33 and 34, the Adjudicator relied upon the fact that MO would be returning as a single young woman with a young child and without any means of support. She would be vulnerable and, in a traditional and patriarchal society, would have an inferior status without the privilege of access to education, employment and control of economic resources. She would be at risk of violence against women. She would return completely destitute and unable to access to government services or family support. On this material, the Adjudicator decided that MO's return placed her at risk of both of persecution and a violation of the Article 3 human rights. There was no separate Article 8 claim.

In her own claim, MO and her witnesses gave evidence of the difficulties she would encounter in establishing her identity. No further information regarding her position has been produced for the present appeal. The Adjudicator in her appeal appears to have decided that MO could not satisfy the requirements for citizenship although, as we have seen, the finding is not entirely clear. Whatever may have been the position in May 2003, we now know that the 3 witnesses' requirement is not an exacting one and in a case such as the appellant's wife, it is reasonably likely she would be able to obtain confirmation of her Eritrean nationality without any serious obstacle. See FA (Eritrea – nationality)Eritrea CG [2005] UKIAT 00047 paragraph 18.

MO may be able to gain entry clearance to accompany the appellant as his partner or spouse, although they are not in fact married to each other. We are not, however, confident that this would be permitted by the Eritrean authorities, although we doubt entry clearance is subject to the same sophisticated and rigorous rules such as govern entry clearance to the United Kingdom. It appears that she could not apply for naturalisation through marriage to the appellant (if they marry) because the requirements for doing so include demonstrating three years legal residence in Eritrea following the marriage and a renunciation of other nationality. (This is the conclusion of a British Fact Finding Mission reporting in April 2003 and referred to in paragraph 5.06 of the COI Report, October 2005.)

The fact that MO has been granted indefinite leave to remain does mean that the United Kingdom government would be able, (in circumstances where she was unable to obtain Eritrean documentation), to furnish her with travel documents sufficient to enable her to leave, and return to, the United Kingdom.

We are, however, satisfied that the appellant has not demonstrated that she will be prevented from going to Eritrea because she faces a risk of persecution. The determination of Mrs Bart-Stewart falls well short of establishing that, accompanied by the appellant, she will suffer the adverse consequences identified by the Adjudicator who heard her asylum appeal.

Similarly, we cannot be satisfied that MO would be required to perform military service, were she to accompany her husband. This would depend upon the capacity in which she is admitted to Eritrea, in other words whether she enters as a national of Eritrea. But even assuming she was admitted as a national, she is the mother of young children and as such it appears to us to be an exceedingly remote possibility that she would be required to perform military service. No argument was addressed to us on this issue but see KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165 in which it was said married women are not currently at risk of conscription in Eritrea. In essence, it remains academic because of her express refusal to accompany her husband.

In these circumstances, we are not satisfied that there are insurmountable obstacles preventing the appellant travelling with his family to Eritrea. It is not, however, essential to our conclusions that we reach this finding because of what we say about the appellant seeking entry clearance from abroad.

The Article 8 claim and whether there is a viable option of applying for entry clearance

We next turn to consider the other aspect of the Article 8 issue, namely, whether even if we had accepted that there would be insurmountable obstacles to the appellant and his family resuming family life in Eritrea, he would have the viable option of seeking entry clearance. We begin by recapitulating relevant principles. In Mahmood [2001] Imm AR 229, the Court of Appeal considered the viable option of making an out-of-country application for entry clearance as a spouse. Such a consideration is all the more important in cases where the appellant's fiancé refuses to leave the United Kingdom. Such an option is a reasonable basis for concluding that the decision to remove is proportionate as it does not represent any necessarily conclusive disruption of the appellant's family life. The appellant is not necessarily faced with any permanent or even long-term exclusion from continuing family life in the United Kingdom. See Simon Brown, LJ in paragraph 19 of Ekinci [2003] EWCA Civ 765. The option affords the appellant a right of appeal against a refusal and both the decision of the Entry Clearance Officer or Immigration Officer and any subsequent appeal has the in-built right to require that any decision is compliant with the appellant's human rights. Thus, the existence of a legal avenue abroad is sufficient to render the removal proportionate and it will only be in exceptional circumstances that the decision will not be so, as Laws LJ said in paragraph 23 of Mahmood:

"If the established rule is to the effect - as it is - that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."

Exceptional circumstances have not been said to exist where the effect of separation was likely to require the remaining spouse to become dependent on public funds for subsistence, even in a case where the remaining spouse was partially disabled. (See Baljit Singh [2002] UKIAT 00660) Nor where the separation will result in the appellant losing his job (as would normally occur), even where there was no guarantee that the same or a similar job would be available on return. (See the Master of the Rolls in Mahmood paragraph 65.) The Entry Clearance Officer can be expected to have regard to the appellant's work-record as evidence of the appellant's and his partner's ability to maintain and accommodate themselves without recourse to public funds. It is not an exceptional circumstance that the appellant runs the risk of failing in an application for entry clearance, (see Ekinci, paragraph 17). Article 8 should not be used as a means of circumventing the provisions of the Immigration Rules.

Exceptional circumstances may be established where the returning appellant is unable to make an effective application for entry clearance from abroad either because there are no facilities for making such an application in his country of nationality or by travelling to a neighbouring country, (see KJ (Entry Clearance Proportionality) Iraq CG [2005] UKIAT 00066 and EH (Palestinian – entry clearance – proportionality) Iraq [2005] UKIAT 00062) and SA (Entry clearance application in Jordan – proportionality) Iraq CG [2006] UKAIT 00011 or if there is a prolonged delay rendering the period of separation disproportionate, (see the Master of the Rolls in paragraph 65 of Mahmood). No submissions were directed to us about the absence of facilities for entry clearance in the context of this case.

Bearing in mind these legal principles and guidelines, we must now ask how they are to be applied to the particular circumstances of the appellant's case. We approach the second stage of the Article 8 claim by considering whether it is proportionate to require the appellant to make an out-of-country application for entry clearance, leaving behind his 2 children, aged 2 years and 8 months in the United Kingdom. In the light of KA, the Tribunal accepts that, on removal to Eritrea, he will be required to perform his military service for 18 months. As we have set out above, there is a risk that military service will be extended but it is not so clear that such an extension is a reasonable likelihood.

The impact of military service on the Article 8 claim

Before proceeding further, however, it is necessary to take stock of what has been said previously by the Tribunal in reported cases as to the significance in Article 8 cases of the fact that a person on return might be required to do military service before being able to apply for or exercise entry clearance to come back to the United Kingdom.

Drawing upon the three-fold categorisation of the circumstances identified by Laws LJ in paragraph 61 of Sepet and Bulbul [2001] EWCA Civ 681 in which an objection to military service might give rise to a claim for asylum (where the military service involves acts which are contrary to basic rules of human conduct; where the conditions of military service are themselves so harsh as to amount to persecution on the facts; where the punishment in question is disproportionately harsh or severe), the Tribunal in Hariri [2002] UKIAT 03557 did not rule out the principle that military service if too prolonged or repeated could give rise to an Article 8 claim.

Absent a personal risk, however, there can be no real risk of relevant ill-treatment unless the situation in the receiving country is one in which the level of abuse amounts to a "consistent pattern of gross, flagrant or mass violations of human rights" – the "gross and systematic" standard adopted by the Tribunal in Muzafar Iqbal [2002] UKIAT 02239 and adopted by the Court of Appeal in Hariri [2003] EWCA Civ 807 in the words of Laws LJ paragraph 8:

"…there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening."

Similar expressions were used by Buxton LJ in the Court of Appeal in Batayev No 2 [2005] EWCA Civ 366 in which he said at paragraph 5

"…significant evidence must be given of conditions in the systems that are universal, or very likely to be encountered by anyone who enters that system."

The Hariri test should not be taken as assimilating real risk to probability. Such was the unanimous view of the Court of Appeal in Batayev No 1 [2003] EWCA Civ 1489 as observed by Munby J in Kpagni [2005] EWHC 881 at paragraph 8.

Absent these conditions, if an appellant fails to perform military service and thereby renders him liable to prosecution, his imprisonment will not violate his Article 8 rights. This is the conclusion of the Tribunal in Tasyurdu [2002] UKIAT 03722 at paragraph16:

"However, the appellant in this case must have been fully aware that when he entered upon this marriage that he might have to serve such a period of imprisonment upon return to Turkey. And there is no reason to think that whilst the appellant is in prison the couple cannot maintain some degree of contact through prison visits and correspondence. Although prison conditions in Turkey are plainly not the same as in the United Kingdom, it is noteworthy that the court in Strasbourg has never seen, save in very exceptional circumstances, any disproportionate interference with the right to respect for private and family life to arise from the separation of the family caused by service of a lawfully imposed punishment."

If this is the position for those liable to imprisonment for draft evasion, by parity of reasoning, the same result must apply to those who are separated for the period of military service. They can be no logical distinction between the separation brought about by the performance of military service and separation as a result of imprisonment for draft evasion.

In Tasyurdu the appellant faced imprisonment for up to three years for failure to perform a duty which was considered part of the obligation a state can legitimately require its citizens to fulfil. That sentence and the period of separation that was likely to result did not amount to a violation of the appellant's Article 8 rights. This compares with the lesser period of military service which we have found the appellant will serve on return.

It seems to us that military service is an incident of life for those citizens of countries whose governments impose national service. Whilst the imposition of conscription is now an alien concept for all European countries, this is only a relatively recent historical phenomenon. At international law, performance of military service is an obligation which a state has a right to require of its citizens. It remains a matter of policy for the government of any country to decide whether its own security is best achieved by conscription. If the decision is made to impose national service, that obligation cannot be viewed as a violation of the individual's freedom or private life. There are limitations upon the state's ability to require its citizens to engage in military activity: Sepet and Bulbul [2003] UKHL 15 on appeal from [2001] EWCA Civ 681 and particularly paragraph 61 of the judgment of Laws LJ. Those limitations do not apply in the case of Eritrea. Accordingly, as a citizen of Eritrea, the appellant is expected to comply with the requirements of the state that he should perform military service, notwithstanding the fact that this will involve interference in his family life. We do not consider that it is the function of Article 8 to relieve an appellant of that obligation. Nor do we consider it appropriate to differentiate between the various states that impose military conscription so that it is permissible to remove persons liable to conscription in the case of some countries but not in the case of others, such as Eritrea. Whilst the human rights situation in Eritrea is poor, it does not seem to us that this, by itself, justifies the non-return of its nationals on Article 8 grounds where the returnee will face military service. The appellant has not established that there is consistent pattern of gross, flagrant or mass violations of human rights sufficient to satisfy the "gross and systematic" test laid down in the case law.

Conclusions

Accordingly, we do not consider that it is disproportionate to remove an appellant to his country of nationality in order to make an out-of-country application for entry clearance merely because the application will be delayed whilst the applicant undergoes his military service. Indeed, to do otherwise, would undermine the right of the appellant's country of nationality to impose a system of military conscription. It would only be in highly unusual circumstances (for example, where performance of military service would entail an appellant having to engage in armed conflict contrary to international law (see Krotov [2004] EWCA Civ 69) ) that a different view might be justified.

There are no such unusual circumstances in the present case. The fact that the appellant will be separated from his family for this period is the inevitable consequence of his decision to start and develop a family life in the United Kingdom pending the determination of what has proved to be an ultimately unsuccessful asylum claim. During the currency of his claim, his immigration status was limited to the right not to be removed but was no more than that. Whilst we fully appreciate the impact of removing a father from his children for the duration of a period of military service, there will never be an ideal moment for such a separation. At present, the appellant's children are very young but there will be equally compelling reasons that could be advanced to prevent removal were the children to be older.

Nor do we consider that removal will only be justified if the family will accompany the appellant to his country of origin during the period of his conscription. If will, of course, be for the remaining family members to decide whether they will accompany the appellant. In the present case, MO has stated in terms that she will not accompany him but that decision is not determinative of the issue of proportionality. The determination in her own asylum claim was not based upon the risk of ill-treatment on arrival but was largely centred upon the difficulties that she would face in establishing her identity and in returning as a single vulnerable young mother at risk of destitution and violence. The appellant, having made no attempt to adduce evidence about the difficulties he will face in establishing his identity, (he claimed to have lived in Asmara for some time), cannot rely upon that ground. MO, if she returns, will be returning with the appellant and not as a lone parent. For these reasons, as we have said in paragraph 50 above, we are not satisfied that there are obstacles sufficient to prevent her travelling to Eritrea with the appellant.

Even if the appellant were to have established that there were insurmountable obstacles to the appellant's wife and children accompanying him to Eritrea, we are satisfied in the alternative, in accordance with the principle set out in Huang [2005] EWCA Civ 105 , that this is not an exceptional case preventing the appellant's removal to Eritrea in order to submit an application for entry clearance.

Delay

Finally, we deal with the submission that the Secretary of State delayed in the handling of the appellant's claim from the time it was made on 5 January 2001 until the date of decision on 23 November 2004, nearly 4 years later. AS we noted earlier, delay is one of the range of relevant factors we have to take into account when assessing proportionality. The case of Akaeke [2005] EWCA Civ 947 (27 July 2005) concerned a Nigerian appellant who, in February 1999, made an application to remain on the basis of her marriage which application was not determined for over three years. It was accepted that this marriage was genuine and that in normal circumstances the marriage would entitle her to live lawfully in United Kingdom. The issue was whether the appellant should be required to return to Nigeria in order to make an application and take her place in the queue: see paragraph 3 of the judgment. It is therefore plain that, like the case of Shala [2003] EWCA Civ 233, the appellant in Akaeke was not being provided with any substantive additional right to which she would not otherwise be entitled but a procedural advantage that avoided the necessity of returning to Nigeria to make the application. It was accepted that the appellant worked regularly and that her husband was credible, honest and very hard-working. He had worked in the United Kingdom's Post Office for many years. They did not rely on benefits and wished to start a family. In paragraph 23 of the judgment, Carnwath LJ, having reviewed the authorities, indicated that culpable delay in handling an immigration application may not, by itself, amount to an Article 8 interference. He went on to say, in paragraph 25, that once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in a particular case was a matter for the Tribunal subject only to the constraints imposed by judicial review principles. This was a case in which the Tribunal described the handling of the application by the Secretary of State as a "public disgrace".

It is conceivable that unreasonable delay could in itself be determinative of a claim but the delay in this case has not caused the appellant prejudice and, whilst it is a factor to be taken into account, does not render the decision of the Secretary of State disproportionate when taken together with the other factors we have considered.

DECISION

The original Tribunal made a material error of law.

On reconsideration, we reach the same conclusion as the original Tribunal though for different reasons:

The appeal is dismissed on asylum grounds.

The appeal is dismissed on human rights grounds.

ANDREW JORDAN

SENIOR IMMIGRATION JUDGE