Ka (Draft-Related Risk Categories Updated)
| Jurisdiction | England & Wales |
| Judge | Dr H H Storey,Mr H J E Latter,Mr A A Lloyd |
| Judgment Date | 25 November 2005 |
| Neutral Citation | [2005] UKAIT 165 |
| Court | Asylum and Immigration Tribunal |
| Date | 25 November 2005 |
[2005] UKAIT 165
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Dr H H Storey (Senior Immigration Judge)
Mr H J E Latter (Senior Immigration Judge)
Mr A A Lloyd
For the appellant: Mr C Yeo, Counsel, IAS (Tribunal Unit)
For the respondent: Mr J Gulvin, Home Office Presenting Officer
KA (draft-related risk categories updated) Eritrea CG
This case, which updates the analysis of risk categories undertaken in IN (Draft evaders — evidence of risk) Eritrea CG [2005] UKIAT 00106 , gives guidance on several issues. It confirms the previous Tribunal view that returnees are not generally at risk. It reaffirms the view that those who would be perceived as draft evaders or deserters would be at risk. As regards persons of eligible draft age, this decision explains why it is thought that the Eritrean authorities, despite regarding such persons with suspicion, would only treat adversely those who were unable to explain their absence abroad by reference to their past history. Reasons are given for slight modification to certain parts of the guidance given in IN. A summary of conclusions is given at paragraph 113. The decision is also reported for what it says at paragraphs 7–15 about country guidance treatment of issues which go wider than the particular factual matrix of an appellant's appeal.
The appellant is a national of Eritrea born on 19 August 1985. She appeals against a determination of the Adjudicator, Mrs Susan Turquet, notified on 27 April 2004 dismissing her appeal against a decision refusing to grant further leave to remain and to give directions under s.10 of the Asylum and Immigration Act 1999 for removal from the United Kingdom. (There had been an appeal against an earlier decision refusing to grant asylum. This had been dismissed by the Adjudicator, Mr B. Watkins CMG, on 4 July 2002).
Following the grant of permission to appeal made on 2 September 2004, her appeal came for hearing on 27 May 2005 before a panel chaired by Senior Immigration Judge Mr C.P. Mather. By virtue of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 that took effect as a reconsideration hearing. At this hearing it was decided that the Adjudicator had materially erred in law “by not considering the risk on return to a young female of draft age who had never (effectively) been to Eritrea”. It was noted at the hearing that this was an issue that needed clarifying using the Tribunal Country Guideline case of IN (Draft evaders — evidence of risk) Eritrea CG [2005] UKIAT 00106 as a start-point. Subsequent to the hearing the Tribunal issued a Notice of Directions to the parties which in its relevant parts stated:
‘Issues for Reconsideration [as directed]
No necessity for oral evidence as grounds have not contested the Adjudicator's findings on credibility.
This case is being set down as a Country Guidance case in which the issues on which the parties are invited to make particular submissions are:
1) Whether the CG case of IN continues to adequately reflect current risk categories
2) Whether someone of eligible draft age but who has not been to Eritrea would fall into a current risk category
The case will not be joined with another.’
The last sentence was intended to clarify that it had been decided not to go ahead with the suggestion raised at the hearing before Mr Mather of joining this case with another.
At the hearing before us Mr Gulvin said he had only learnt of these directions when Mr Yeo had contacted him two days earlier. He was prepared, nevertheless, to accept that they had been sent to the parties and he was ready to proceed with the case and assist the Tribunal as far as he was able to in these circumstances. Mr Yeo had responded to the directions by adducing a comprehensive bundle containing inter alia, reports from four country experts and several items of background evidence post-dating those examined by the Tribunal in IN ( IN was heard on 2 February 2005).
Nevertheless, Mr Yeo's skeleton argument repeated an earlier application made to the Tribunal in a 28 September 2005 letter asking that the directions be amended and the first direction be struck out. Since it raises a point of some importance, we shall set out what he said in both places. The main paragraphs of his letter were as follows:
‘Given that the facts of this case do not match the directions that have been given, I ask that the directions are amended and the first direction is struck out. In a report written by the IAS on Country Guideline cases, IAS was critical of the use of inappropriate cases to determine wider issues. The appellant in this case has no interest in arguing wider issues or presenting country information outside her own case and as the appellant's representative I have no duty to do so. Indeed, I feel that to do so would compromise my overriding duty to my client by allowing the Tribunal to be distracted from the key issues in this particular case and confusing matters by introducing arguments that are irrelevant to my client. If the Tribunal does want to consider wider facts, it would need to link this case with other suitable cases in which those facts do arise.
Should the directions not be amended, I will need to ask that it is clearly recorded in the final determination that the appellant did not present arguments or evidence relating to facts that did not arise in her own case.’
The way the application was put in the skeleton argument was as follows:
‘2.6. It is submitted that this case is not appropriate for designation as a Country Guideline case on issue (1) as identified in the AIT's directions. The facts of IN [2005] UKIAT 00106 are very different to those of the appellant's case and the appellant therefore has no legal standing to advance arguments or evidence relating to those wider issues. Had the AIT wanted to designate this case as a Country Guideline case on issue (1) it would have been appropriate to link it with other cases that raise the issue the AIT has outlined in issues direction (1). Without having taken that step it will hear no argument on those issues nor will evidence be presented to the AIT specifically relating to those issues that fall outside the appellant's case. Issues direction (1) is ultra vires as the AIT cannot direct the appellant to prepare arguments or submit evidence that are not immediately relevant to her case. Rule 45(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 explicitly limits the power to make directions to the conduct of the instant appeal or application.
2.7. In addition, the jurisdiction of the AIT to review IN is questionable. No evidence appears to have come to light to cast doubt on the correctness of the guidance in IN and the respondent has presented no fresh evidence in this case or, as far as the appellant's representatives are aware, in any other case, to dispute those findings (nor any evidence at all in this case). Indeed, the evidence gathered by the appellant relating to her own individual facts which indirectly relate to IN suggests that the situation has deteriorated.’
We refused this request for several reasons. Firstly, it is quite clear that the appellant's case, as put by Mr Yeo, relies in part on general propositions about risk to persons affected by the draft in Eritrea. She does not rely solely on evidence relating to herself, but also on evidence relating to persons affected by the draft generally. Secondly, her 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. Thirdly, Mr Yeo did not object to the directions relating to issue 2 (‘whether someone of eligible draft age but who has not been to Eritrea would fall into a current risk category’) and, even had directions been confined to this issue, its asessment necessarily required linkage being made to an overall set of current risk categories.
We also reject Mr Yeo's submission that we have no jurisdiction to review IN. This is a second-stage reconsideration hearing in which the relevant date for the assessment of risk is the date of hearing before us: see R (Iran) [2005] EWCA Civ 982. Accordingly, we must have regard to any evidence placed before us concerning relevant changes or developments which have taken place in country conditions in Eritrea since the Country Guideline case of IN (as well as to more recent evidence affecting the appellant's individual circumstances). It is only by having regard to such evidence that we can decide whether the appeal before us “depends upon the same or similar evidence” (see April 2005 AIT Practice Directions para 18.2). Only if we were to decide that the country guidance issues in this case do depend upon the same or similar evidence, would we then be required by para 18.2 to continue to treat IN as authoritative in any subsequent appeal so far as it relates to the country guidance issues in question.
In this regard, it is noteworthy that Mr Yeo himself expressly sought to rely on a number of post- IN items of background evidence, as well as five expert reports, three of them written since IN - one from Michael Ellman dated 14 October 2005, one from Dr David Pool, also dated 14 October 2005, one from Dr June Rock dated 13 October 2005. Even the two reports from Dr John Campbell dated 24 January and 31 January 2005 respectively, were submitted by reference to an “updating” letter of 10 October 2005, which also authorised their use for this appeal. Although each of the four country experts places focus on...
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