Ariaya v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Mr Justice Coleridge,Lord Justice Laws |
| Judgment Date | 08 February 2006 |
| Neutral Citation | [2006] EWCA Civ 48 |
| Date | 08 February 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C5/2005/1652 (Tribunal Appeal Nos. CC50137–2003 and HX/34056/2003) |
[2006] EWCA Civ 48
Lord Justice Laws
Lord Justice Richards and
Mr Justice Coleridge
Case Nos: C5/2005/1652
C5/2005/1815
(Tribunal Appeal Nos. CC50137–2003 and HX/34056/2003)
Mr Christopher Jacobs (instructed by White Ryland) for the Appellant Ariaya
Miss Victoria K Quinn (instructed by White Ryland) for the Appellant Sammy
Miss Susan Chan (instructed by The Treasury Solicitor for the Secretary of State
These two appeals from decisions of the Asylum and Immigration Tribunal were listed for hearing together because they both concern claims to asylum and humanitarian protection by citizens of Eritrea who contend that they would be at risk as a perceived draft evader or deserter if they were returned to that country. In each case the tribunal dismissed the appellant's appeal from an adverse decision by the Secretary of State; and in each case permission to appeal to this court was refused by the tribunal but was granted on the papers by Neuberger LJ.
The context: relevant tribunal decisions
The cases fall to be considered against a background of very real and growing concern about the treatment of those who, on return to Eritrea, are perceived by the authorities to be draft evaders or deserters. To provide the requisite context, it is helpful to look first at a sequence of tribunal decisions on the subject.
MA (Female draft evader) Eritrea CG [2004] UKIAT 00098 was a country guidance case the decision in which was notified on 4 May 2004. The appellant was a young woman who claimed to fear persecution and ill-treatment contrary to article 3 of the European Convention on Human Rights on the ground that if she were returned to Eritrea she would be perceived as a draft evader. The tribunal referred to objective evidence concerning ill-treatment of those perceived as draft evaders. Of particular concern was the fate of a group of asylum seekers detained following their deportation from Malta to Eritrea in 2002. The women and children within the group, and those over the age of 40, had been released after some weeks, but the rest had been kept in indefinite detention without charge or visits and in conditions that were described as including forced labour, beatings, torture and a lack of medical care, food or sanitation, leading to disease and in some cases death. The tribunal concluded that the there was a real risk that the appellant would be subjected to the same treatment as those deported from Malta and that her rights under article 3 would be breached. It did not consider, however, that her treatment would amount to persecution within the Refugee Convention, since there was no evidence that her illegal exit from the country and her failure to respond to her call-up papers would lead to any political opinion being imputed to her.
SE (Deportation – Malta – 2002 – General Risk) Eritrea CG [2004] UKIAT 00295 was a further country guidance case, the decision in which was notified on 29 October 2004. It examined whether the appellant would be at risk either as a female draft evader or as a mere returnee. In relation to both issues it looked closely at the effect of MA. On the issue of draft evasion the tribunal found against the appellant for two main reasons: first, because "[i]f there is no evidence that the authorities have taken steps to call someone up, over a significant period of time during which such a person was eligible, it is hard to accept that they would classify him or her as an evader the first time they came into contact with such a person" (para 14) , and secondly, because the appellant had failed to establish that she left Eritrea illegally and it could not be concluded that the authorities on her return would view her as someone who had left in circumstances designed to avoid compliance with her duty to perform military service.
On the issue of risk as a mere returnee, the tribunal held that MA was not intended to establish that all returnees to Eritrea were at risk and found that the objective evidence before it did not compel a conclusion that returnees generally were at risk. That evidence again included the fate of the Maltese returnees, the problems relating to whom were said by the tribunal to be linked closely with the perception of the Eritrean authorities that they were draft evaders or deserters.
In GY (Eritrea – Failed asylum seeker) Eritrea [2004] UKIAT 00327, a reported decision notified on 30 December 2004, the tribunal held that SE had correctly identified the limit of the scope of MA and accepted that the ordinary failed asylum seeker was not generally at risk.
NM (Draft evaders – evidence of risk) Eritrea [2005] UKIAT 00073 was a reported decision notified on 22 March 2005. Its status and effect are central issues in the appeal in Ariaya. The appellant was a 33 year old woman who had left Eritrea in 1991. Her father had been a member of the ELF and she had fled the country when he was arrested and detained. The tribunal found that the upper age limit for military service, for men and women, was 40. It referred to the background evidence of torture and mistreatment of army deserters and draft evaders. It described the means adopted to enforce conscription and recited the fate of the Maltese returnees and a similar experience suffered by a number of Eritreans deported from Libya in July 2004. The tribunal continued:
"14. … The Tribunal is satisfied and the evidence put before us is clear that at present in Eritrea those who are suspected of evading and refusing conscription are at risk of ill treatment and torture.
15. The issue in this appeal is whether there is a real risk that the appellant would be suspected of being a draft evader. In normal circumstances it might be argued that someone who had been out of the country for many years and had not been summoned for military service would not be at risk. However, it is clear from the background evidence that the situation is normal in Eritrea so far as the government's attitude towards military service is concerned. There is political impetus to enforce military service as part of the reconstruction of Eritrea and a failure to perform it is seen as disloyalty to the authorities. The evidence of the returns from Malta and Libya indicate that the Eritrean government is exceptionally suspicious of those of military age who are returned. It was not only the draft evaders amongst the Maltese returnees who were detained. Those of military service age, even those not identified as evaders, remain in detention. A similar fate has happened to the Libyan returnees.
16. On the evidence as it stands at present, the Tribunal is satisfied that there is a reasonable likelihood that this appellant might be at risk. It is not just a case of her being a returnee of draft age. She may be additionally vulnerable because of her family's political history, the Adjudicator having accepted that her father had been a member of the ELF. Looking at the appellant's circumstances in the light of the current background evidence the Tribunal find that there is a real risk that she will be perceived as a draft evader leading to a risk of detention and ill-treatment.
17. There is further evidence before us which was not before the Tribunal in MA. We are satisfied that being perceived as a draft evader does carry political connotations in the eyes of the Eritrean authorities to the extent that the appellant would be at risk of serious harm for a Convention reason, her perceived opposition to the current government. These findings distinguish this case from the position on SE which primarily dealt with the issue of risk for returnees as such."
IN (Draft evaders – evidence of risk) Eritrea CG [2005] UKIAT 00106 was a country guidance case. The decision was notified on 24 May 2005 and therefore post-dated the tribunal's decision in Ariaya. However, it was issued soon before the decision in Sammy and was referred to in that decision; and it plays an important part in the submissions before this court in Sammy in particular. In IN the tribunal looked in considerable detail at the up to date objective evidence, including that relating to the Maltese and Libyan returnees and to a further group of four returnees from Djibouti who were reported to have been detained without charge. It observed that the state of the evidence as it was before the tribunal in MA, SE and GY already contained some worrying features, but that the further evidence before the tribunal in IN reinforced and significantly increased its concerns. It concluded (para 44) :
"44. Bringing all these factors together, and applying the lower standard of proof, the Tribunal is satisfied that at present there is a real risk that those who have sought to avoid military service or are perceived to have done so, are at risk of treatment amounting to persecution and falling within Article 3. We summarise our conclusions as follows:
(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...
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