MA (Female draft evader)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 04 May 2004 |
| Neutral Citation | [2004] UKIAT 98 |
| Court | Immigration Appeals Tribunal |
| Date | 04 May 2004 |
[2004] UKIAT 98
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
For the Appellant: Mr A Steadman, instructed by White Ryland
For the Respondent: Mr P Deller, Home Office Presenting Officer
MA (Female draft evader) Eritrea CG
The Appellant, who was born on 12 th March 1985 and is now nineteen, is a citizen of Eritrea. The Secretary of State refused her claim for asylum and gave directions for her removal on 7 th August 2002. The Adjudicator, Miss G A Black, dismissed her appeal in a determination promulgated on 16 th October 2003 but, following the refusal of leave to appeal to the IAT, Statutory Review was granted on the basis that there was an area of risk to the Appellant which the Adjudicator had not considered.
The Appellant claimed to have left Eritrea in September 2001 when she was required, as a sixteen year old, to report for her compulsory military training. She feared that she would be made to fight, to complete her military service and claimed also to be in fear because she had left Eritrea illegally. At her appeal, she also alleged that military service was against her religious beliefs as a Muslim, a claim which the Adjudicator rejected as not credible. The Adjudicator also rejected her claim to have been persecuted on account of her father's involvement with the ELF; he had been killed when she was three.
The Adjudicator rejected her claim that she had received her call-up papers when she was sixteen; children were not called up now that there was a peace agreement between Eritrea and Ethiopia. However, she said that the Appellant was now over eighteen and on her return to Eritrea would be required to complete her military training. She said:
“I treat the appellant as if she were to be seen as either a draft evader or required to complete her military service upon return. I find that she has failed to establish a claim that her failure to do military service would amount [to] persecution for a Convention reason.”
After rejecting the claim that the Appellant was a conscientious objector or that the fact that she would have to do military service itself amounted to a Convention reason for persecution, the Adjudicator said that a three-year prison term for failure to complete military service was not disproportionate. Neither her failure to do military service nor her objections to military service would cause her to face a real risk of treatment contrary to the ECHR.
Finally, the Adjudicator concluded that returning the Appellant as a single woman to the country where she had lived, established her life and had been educated, where she had at least one family member and would not be destitute or alone, would not contravene her Article 3 rights.
The nub of the Appellant's submissions to the Tribunal were that the Adjudicator, having found that the Appellant would be seen either as a draft evader or as someone required to do military service, did not examine the background evidence as to how the former might be treated. We accept that the Adjudicator put the Appellant into one or other of two categories, and that it may not have been possible to know into which category the Eritrean authorities would put her. It was then necessary for the Adjudicator to examine both of the possibilities. The Adjudicator did not do so but reached conclusions only relevant to someone who would be required to complete her service or who would simply face a prison sentence for her failure do so. But there is background material which calls for consideration as to how someone who is seen as a draft evader is in practice treated by the authorities, including those who exercise power or control over the military service and punishment of draft evaders. We have accordingly examined that material.
The October 2003 CIPU Report says (5.53) that since the beginning of the border war in 1998, more than six percent of the country's population had served in the armed forces, leading to severe manpower shortages. To overcome this, soldiers had served in local public works programmes while awaiting demobilisation. Soldiers have however been checking on young men and women who have evaded the draft. In 2002, as in 2001, military police had been deployed at roadblocks and in sweeps and searches to find deserters and draft evaders and detain them. “ There was a general public perception that these round-ups were directed particularly at female draftees.” (5.57) There was no exception available for religious or conscientious objection, nor any alternative form of service; the punishment for refusing to perform national service was a maximum of three year's imprisonment.
Paragraph 5.63 referred to the pressures put on young people to fulfil their national service:
“The University of Asmara refused diplomas to students who had completed their studies unless they undertook their national service; additionally new graduates were occasionally pressured to work for government bodies. The army resorted to various forms of extreme physical punishment to force objectors, including some Jehovah's Witnesses, to undertake military service. The US State Department 2003 report notes that the police subjected deserters and draft evades to various military disciplinary actions that included prolonged sun exposure in temperatures of up to 113 degrees Fahrenheit or the tying of the hands and feet for extended periods of time.”
The last passage was strongly relied on by Mr Steadman for the Appellant. It appeared in a number of background reports. It is sourced via the US State Department Report to an Amnesty International Report of 2003.
The CIPU Report later refers to torture specifically. Torture is prohibited by the Constitution but the USSD reports many observers as believing that the police at least occasionally resort to torture and physical beatings of prisoners particularly during interrogations. The CIPU Report (6.9) records that the 2002 UN fact-finding delegation found much disagreement about the prevalence of torture; western embassies said that they were not aware of its routine use and were clear that its use was not systematic, whilst recognising that they would not be told if it did happen. It was thought possible that it was used in particular circumstances such as...
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