AT (Return to Eritrea – Article 3)
| Jurisdiction | England & Wales |
| Judge | VICE PRESIDENT |
| Judgment Date | 25 January 2005 |
| Neutral Citation | [2005] UKIAT 43 |
| Court | Immigration Appeals Tribunal |
| Date | 25 January 2005 |
[2005] UKIAT 43
IMMIGRATION APPEAL TRIBUNAL
Dr H H Storey(Vice President)
Mr R A McKee
Mrs A J F Cross de Chavannes
Mr R Solomon of Counsel instructed by Zaides Solicitors for the appellant (hereafter claimant); Mr C Buckley, Home Office Presenting Officer, for the respondent.
AT (Return to Eritrea — Article 3) Eritrea
The claimant is a national of Eritrea. She appeals against a determination of Adjudicator, Mr P A Spencer, promulgated on 19 April 2004, dismissing her appeal on asylum grounds of appeal against a decision refusing to grant leave to enter.
There is a curious history to the promulgation of this determination. The Adjudicator originally promulgated it on 19 June 2003 and in that determination, whilst dismissing the appeal on asylum grounds, allowed it on Article 3 grounds. The Home Office then appealed stating that this was a typographical error. It was then remitted back to the same Adjudicator by a Tribunal chaired by Mr Parkes on 6 August 2003 for correction of a possible typing error. Acting under Rule 59 of the Immigration and Asylum Appeals (Procedure) Rules 2003 the Adjudicator then repromulgated his original determination with a correction stating that “I dismiss the appeal on human rights grounds”. Thus the appeal with which we are concerned is against a repromulgated determination dated 19 April 2004 dismissing the appeal on asylum and human rights grounds.
Since Mr Solomon conceded that the claimant would not be able to demonstrate that in respect of any real risk she faced it would be on account of a Refugee Convention reason or ground, the only remaining issue in this appeal is whether the Adjudicator erred in law in concluding that the claimant faced a real risk of treatment contrary to Article 3.
The Vice President who granted permission to appeal noted that the claimant's Article 3 claim was allowed by the Adjudicator “… largely because of a UNHCR recommendation, to be reviewed in mid-2004, following the return from Malta of about 220 Eritreans in 2002, some of whom were of draft age or failed asylum seekers”.
This analysis of the reason why the Adjudicator allowed the Article 3 grounds of appeal appears mistaken, since the Adjudicator nowhere refers to the UNHCR recommendation. Furthermore, the Vice President appears not to have had his attention drawn to the fact that permission was being sought against the repromulgated determination, which had dismissed (not allowed) the Article 3 grounds of appeal. Nonetheless, it is only right, now the appeal is before us, that we consider as far as possible the grounds of appeal as they stand.
As Mr Solomon and Mr Buckley acknowledged, neither party had been able to obtain the expected mid-2004 UNHCR review. However, both sought to adduce materials which were not before the Adjudicator, in particular those to hand since the Adjudicator promulgated his determination on 19 April 2004. Following the Court of Appeal judgment in CA [2004] EWCA Civ 1165, we can only take these post-promulgation materials into account if we are first satisfied there is a material error of law in her determination.
For reasons given below we are satisfied that he did not make a material error of law.
Whilst he accepted the claimant's account of her adverse experiences in Ethiopia, removal directions had only been proposed in respect of Eritrea. Hence the claimant was only entitled to succeed on Article 3 (or asylum) grounds if she could show that removal to that country would expose her to a real risk of treatment contrary to Article 3.
Insofar as the claimant's position as a potential draftee into military service was concerned, the Adjudicator did not consider that in her case this would give rise to any real risk. The claimant had claimed to have been inducted into military service whilst still a minor. However, bearing in mind objective evidence showing that only a small number of children under 18 had reportedly entered military service, the Adjudicator did not find it credible that the claimant had ever been taken into the army or undergone military training. Nor did he accept that the claimant was in effect stateless. He noted Amnesty International concern that anyone deported to Eritrea who was suspected of opposition to the government or having evaded military service or deserted from the army would be arrested and possibly subjected to torture or ill-treatment. He concluded such concern was not relevant in this case:
‘… this in my view does not apply to the appellant because she has not been required to perform military service’.
The grounds of appeal on behalf of the claimant contended firstly that having accepted that the claimant was still a minor who had fled military service by virtue of not completing it, the Adjudicator should have allowed the Article 3 grounds of appeal. Secondly, they contended that by virtue of her history of having been raped, the claimant would be particularly at risk on being drafted into the army in Eritrea. They referred to US State Department Report references to sexual harassment and ages of women in the army. Thirdly they submitted that the Adjudicator should have found she would be at risk simply as a failed asylum seeker. A fourth ground we extract from the draft of the ground is that the claimant would be at heightened risk, being a returnee of mixed ethnicity.
We have no hesitation in rejecting the first of these grounds. It presupposes that the Adjudicator found the claimant's account of having undertaken (and only partially completed) military service credible. He did not. No reasons are given in the grounds for challenging the Adjudicator's adverse credibility findings on this aspect of the claimant's account.
As for the second ground, it only has potential application if the claimant would face a real risk of being conscripted. However, the Adjudicator, as we have seen, found she would not face such a risk because she has not yet been required to perform military service.
We can see no basis for interfering with this finding of fact. We accept that it remains that, as a person soon to become of eligible age to perform military service, it is necessary to consider whether such women face a real risk of serious harm.
In considering this issue, Mr Solomon urged us to rely on the country guideline case of MA (Female draft evader) Eritrea CG [2004] UKIAT 00098. This decision was authority, he contended, for the proposition that all women of (or near) conscription age...
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