In (Draft evaders – evidence of risk)
| Jurisdiction | England & Wales |
| Judge | VICE PRESIDENT |
| Judgment Date | 24 May 2005 |
| Neutral Citation | [2005] UKIAT 106 |
| Court | Immigration Appeals Tribunal |
| Date | 24 May 2005 |
[2005] UKIAT 106
IMMIGRATION APPEAL TRIBUNAL
Dr H H Storey (Vice President)
Mr H J E Latter (Vice President)
Dr A U Chaudhry
For the Appellant: Mr C Jacobs, Counsel, instructed by White Ryland
For the Respondent: Mr M Blundell, Home Office Presenting Officer
IN (Draft evaders — evidence of risk) Eritrea CG
The appellant, a citizen of Eritrea, appeals against the determination of an Adjudicator, Mr Warren L. Grant, notified on 8 September 2004, who dismissed his appeal on both asylum and human rights grounds against a decision made on 26 May 2004 giving directions for his removal following the refusal of his claim for asylum.
This appeal raises the issue of the nature and extent of the risk of persecution or treatment contrary to Article 3 for actual or perceived draft evaders being returned to Eritrea and, if there is a risk, whether it extends to all those of draft age. This case will review in the light of the current evidence the country guidance cases MA (female draft evader) Eritrea CG [2004] UKIAT 00098, SE (deportation — Malta — 2002 — general risk) Eritrea CG [2004] UKIAT 00295 and the reported case GY (Eritrea — failed asylum seeker) Eritrea [2004] UKIAT 000327, AT (return to Eritrea — article 3) Eritrea [2005] UKIAT 00043 and NM (Draft evaders — evidence of risk) Eritrea— [2005] UKIAT 00073. This appeal is reported as country guidance on these issues.
The appellant is an Eritrean citizen. His account can briefly be summarised as follows. He was born on 1 April 1983 and was brought up in Ginda. He attended a private school from seven until the age of fifteen. He claimed that in 1991 his father left home. The family did not know where he had gone and it was not until the end of 1997 that his mother and uncle found out that his father had been arrested by the Eritrean government. His father had been a longstanding member of the ELF. In September 1998 when the appellant was at home, government armed police came and took him to do military service against his will. He was taken to Sawa training camp. Two days after he arrived he challenged one of the officers, demanding to know why he had been brought to do military service against his will. He was then detained and ill-treated. After four weeks he and two others were able to escape. They ran to a nearby road where they met a caravan which took them to Kassala on the border between Sudan and Eritrea. He was helped by one of his father's friends who took him to Khartoum where he stayed until arrangements were made with an agent who provided him with documents so that he could travel to the United Kingdom.
He left Sudan on 22 February 1999, entering the United Kingdom illegally. He claimed asylum on 26 February 1999. His application was refused for the reasons set out in the Secretary of State's letter dated 24 May 2004. It was his view that the appellant's unwillingness to undertake military service did not give rise to a claim under the Refugee Convention. The appellant had failed to provide any evidence that he would suffer disproportionate punishment for draft evasion. The application was refused on both asylum and human rights grounds. The decision to remove the appellant from the United Kingdom to Eritrea was made on 26 May 2004.
The appellant appealed against this decision to an Adjudicator who heard the appeal on 1 September 2004. He did not find the appellant to be a credible witness. He did not believe that he had been forcibly recruited into the armed forces in 1998 nor that he had escaped from detention. He rejected the appellant's story about his father's membership of the ELF and his subsequent detention. The appeal was dismissed on asylum grounds. The Adjudicator went on to consider the claim on human rights grounds. He summarised his findings in paragraph 17 of his determination as follows:
‘The appellant is a failed asylum seeker. It is however implicit in Mr Jacobs' argument that the appellant is an Eritrean aged twenty-one who has not carried out his military service and that, on return, he would be subjected to the treatment meted out to returnees from Malta who are referred to in paragraph 23 of the IAT determination in MA Eritrea. I note however that in that case the appellant had been required to report at the age of sixteen for military training. The appellant in our appeal did not receive any call up papers and I have rejected his story about being forced to do military service. Even though he may well have been living in Eritrea during the time when fifteen year olds were subjected to forcible recruitment, he was not according to my findings ever recruited. He is someone who is liable to carry out military service. Mr Jacobs supplied me with a copy from the Africa director of HRW dated 3 August 2004 concerning refugees repatriated from Libya. It does not say what has happened to them but it refers to returnees from Malta. Mr Jacobs has helpfully supplied me with a marked bundle and I have read through it. The appellant is not someone who has fled Eritrea to avoid military service. He would have served in the armed forces to defend his country. I believe that this fact or attitude distinguishes him from the Malta returnees who were draft evaders. Upon return he will be able to declare his willingness to serve. As a result I find that there is no reason to believe that he will be subjected to the treatment referred to in paragraph 5.70 of CIPU. I do not believe that either of these Articles is engaged.’
The grounds of appeal argue that the Adjudicator erred in finding that the appellant was not a draft evader. They repeat the assertion that the appellant was forcibly conscripted in September 1998 and argue that the Adjudicator erred in finding that the appellant's case was distinguishable from that of the Maltese returnees. It is also argued that he erred in finding that the appellant would willingly serve in the Eritrean army. He had never asserted that he would but only stated that he would fight to defend his country if invaded. The Adjudicator erred in finding that the appellant would be able to avoid ill-treatment as a suspected draft evader by declaring an intention to serve in the military upon return. The grounds argue that the Adjudicator misdirected himself on the objective evidence. The UNHCR have not alleged that only actual as opposed to perceived draft evaders were ill-treated amongst the Maltese returnees. As a failed asylum seeker of military age, the appellant would be suspected on return of draft evasion and would be interrogated and ill-treated as a suspected draft evader. The grounds rely on the UNHCR report dated 20 January 2004 and the country guidance case of MA. They further argue that the Adjudicator failed properly to consider the evidence relating to the return of 110 returnees to Eritrea from Libya who were detained and ill-treated as suspected draft evaders.
When granting permission to appeal, the Vice President commented that the Adjudicator's treatment of the facts could not be faulted but he granted permission on the basis that the grounds raised properly arguable issues as to the assessment of risk in the light of the facts relating to the Maltese and Libyan returnees and the Tribunal's determination in MA.
Mr Jacobs submitted that the Adjudicator had erred in law by distinguishing the facts in this case from those in MA where the Adjudicator had rejected the claim that the applicant had received her call up papers when she was sixteen but had accepted that she would be required to do military service. The second error of law was the failure to take into account the background evidence which showed that those of draft age would be perceived as draft evaders. The Adjudicator also erred in his finding that the appellant would be able to avoid the possibility of ill-treatment by declaring his willingness to undertake military service. He had also failed to take into account the implications arising from the treatment of not only the Maltese but also the Libyan returnees.
Mr Jacobs submitted that MA was correctly decided. The evidence about the Maltese returnees illustrated the risk to those perceived as draft evaders. This risk was confirmed by Amnesty International, Human Rights Watch and the UNHCR. All those returned from Malta were treated in the same way and no distinction was drawn between actual and perceived draft evaders. The fate of the returnees from Libya confirmed these concerns and demonstrated that the fate of the Maltese returnees could not be treated as a one-off incident. There was evidence that many Eritreans had fled the country in an attempt to evade military service. The authorities were responding by attempting to prevent those of draft age leaving Eritrea, actively seeking out suspected draft evaders or deserters and routinely ill-treated them. The reasoning in SE was undermined by the fact that the Tribunal failed to consider the evidence relating to the returnees from Libya. The Tribunal in GY had also failed to address this issue.
The risk to the appellant arose because he was of draft age. As someone who had not undertaken military service, he would face a real risk of detention and ill-treatment. That fear would not be removed by the appellant declaring his intention to serve in the military on return, which in any event was an intention he did not have. There was nothing in the background evidence to support a proposition that draft evaders could avoid ill-treatment on return by agreeing to undertake military service. The situation in Eritrea was such that the authorities treated draft evaders as political opponents and any ill-treatment arose for...
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