MO (illegal exit - risk on return_ Eritrea CG [2011] UKUT 00190 (IAC)
This case concerned MO, an Eritrean national, whose asylum claim was rejected by the Secretary of State for the Home Department on February 16th 2009, and whose appeal before an Immigration Judge was dismissed on April 15th 2009. The IJ found MO’s account incredible.
A reconsideration hearing took place on November 13th 2009, and subsequently Senior Immigration Judge P R Lane declared the dismissal a material error in law. The case was identified by the Upper Tribunal as a suitable one for providing Country Guidance.
Following the replacement of the Asylum and Immigration Tribunal by a two-tier system on 15 February 2010, the Upper Tribunal, Immigration and Asylum Chamber was required to re-make the decision in the appeal.
Eritrea
The Upper Tribunal described repression in Eritrea as “multi-faceted.” The present Eritrean regime was referred to as having a “siege mentality.”
The Tribunal considered the following issues to be under scrutiny:
a) Risk on return following a person’s illegal exit from Eritrea and
b) Risk on return following a person’s claim to asylum in the United Kingdom regardless of the circumstances of their exit.
MA (Draft Evaders - Illegal departures - risk (Eritrea CG [2007] UKAIT 00059
With the exception of a single point of clarification, the Tribunal stated that it did not intend to re-examine the guidance provided by MA (Draft Evaders - Illegal departures – risk) Eritrea CG [2007] UKAIT 00059 on the nature of military and national service in Eritrea, nor on issues around demobilisation and return risk to persons perceived as draft evaders or deserters. Similarly, the Tribunal saw no need to re-examine whether MA (Draft Evaders - Illegal departures – risk) Eritrea CG [2007] UKAIT 00059 represented an overall correct legal approach, as GM (Eritrea) & Others v Secretary of State for the Home Department [2008] EWCA Civ 833 had already held said approach to be correct, and in MA (Somalia v Secretary of State for the Home Department [2010] UKSC 49, the Supreme Court had agreed.
Instead, the Tribunal chose to focus on the issues outlined by paragraphs 445-9 of MA (Draft Evaders - Illegal departures - risk (Eritrea CG [2007] UKAIT 00059. These paragraphs established:
1) That persons of military service age leaving Eritrea illegally before undertaking (or completing) Active National Service were likely to be severely punished by the Eritrean authorities for desertion.
2) That healthy persons of draft age who had left illegally were likely to be treated similarly even if they had completed their National Service.
3) That not all asylum seekers would be subject to these risks- a person approaching draft age who failed to show that their exit from Eritrea was illegal could be considered reasonably unlikely to encounter harm upon return, even if the authorities were aware of this persons’ unsuccessful asylum claim abroad.
4) That if the fact-finder declared an individual’s account prohibitively difficult to credit (hence, “incredible”), that person may well have failed to demonstrate that they had exited illegally.
Conclusions
Eritrean authorities were found to permit legal exit to the following categories:
(i) Males of 54 years or over.
(ii) Females of 47 years or over.
(iii) Children of 7 or younger.
(iv) Persons declared by an official committee to be unfit on medical grounds.
(v) Persons certificated by an official committee to be unable to receive appropriate medical treatment in Eritrea.
(vi) Highly trusted government officials and their families.
(vii) Members of ministerial staff recommended by the department to attend studies abroad.
Significant changes in figures relating to UK entry clearance applications since 2006, as well as the Eritrean government’s apparent decision to temporarily suspend its exit-visa granting facilities around August/September 2008, all indicated that achieving exit has become more difficult for Eritrean citizens since late 2008.
The Tribunal reaffirmed MA (Draft Evaders - Illegal departures - risk (Eritrea CG [2007] UKAIT 00059’s general position with regard to illegal exit. However, it noted that if an individual was found to have exited Eritrea after August/September 2008, the probability of their having done so illegally would seem higher.
Furthermore, in weighing credibility, inferences might be drawn from said person’s appearance, health history, level of education and/or skill profile as to whether they could feasibly fit into any one of the categories permitted to exit legally.
In cases of illegal exit, a few exceptions were given whereupon hostile treatment from the Eritrean government might not be expected upon an individual’s return. Namely, persons who the regime considers as having contributed valuable service (either at home or abroad) or persons who are trusted family members, or indeed active parts of, the regime's political leadership.
The Tribunal further determined that persons who had fled the region prior to its war of independence were likely to be able to return without serious incident.
The Tribunal declared that, whilst failed asylum seekers per se might not be in serious risk of persecution upon returning to Eritrea, the majority of such persons would likely be perceived as having left illegally, and thus endangered.
Conclusions with regard to the appellant.
The Tribunal considered it unlikely that the appellant had left Eritrea legally. The First-Tier Tribunal’s decision was therefore classified a material error in law, and the decision remade was to allow the appellant’s appeal on asylum and Article 3 ECHR grounds.