Mo (Illegal Exit – Risk on Return)
| Jurisdiction | UK Non-devolved |
| Judge | Lady Dorrian,Storey,P R Lane |
| Judgment Date | 27 May 2011 |
| Neutral Citation | [2011] UKUT 190 (IAC) |
| Date | 27 May 2011 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2011] UKUT 190 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
THE IMMIGRATION ACTS
Lady Dorrian
SENIOR IMMIGRATION JUDGE Storey
SENIOR IMMIGRATION JUDGE P R Lane
For the Appellant: Mr I Palmer, Counsel, instructed by arnes Harrild & Dyer
For the Respondent: Mr C Avery, Home Office Presenting Officer
MO (illegal exit — risk on return) Eritrea CG
(i) The figures relating to UK entry clearance applications since 2006 – particularly since September 2008 – show a very significant change from those considered by the Tribunal in MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059 and are among a number of indications that it has become more difficult for Eritreans to obtain lawful exit from Eritrea.
(ii) The Eritrean authorities continue to envisage lawful exit as being possible for those who are above national service age or children of 7 or younger. Otherwise, however, the potential categories of lawful exit are limited to two narrowly drawn medical categories and those who are either highly trusted government officials or their families or who are members of ministerial staff recommended by the department to attend studies abroad.
(iii) The general position concerning illegal exit remains as expressed in MA, namely that illegal exit by a person of or approaching draft age and not medically unfit cannot be assumed if they had been found wholly incredible. However, if such a person is found to have left Eritrea on or after August/September 2008, it may be, that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of the adverse credibility findings.
(iv) The general position adopted in MA
(v) Whilst it also remains the position that failed asylum seekers as such are not generally at real risk of persecution or serious harm on return, on present evidence the great majority of such persons are likely to be perceived as having left illegally and this fact, save for very limited exceptions, will mean that on return they face a real risk of persecution or serious harm.
This case is one that was identified by the Upper Tribunal as an intended country guidance case some time ago. It concerns a national of Eritrea born on 19 May 2008 whose claim for asylum was refused by the respondent on 16 February 2009 and whose subsequent appeal to an Immigration Judge (IJ) Page was dismissed in a determination notified on 15 April 2009. Following a reconsideration hearing that took place on 13 November 2009, Senior Immigration Judge P R Lane's subsequent decision on 16 March 2009 that the IJ had materially erred in law (see Appendix A) stated that the parties were in agreement with him that the case was a suitable vehicle for giving country guidance. The Tribunal's direction to the parties made at the time, specified that the issues were confined to:
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1) risk on return where there has been illegal exit from Eritrea; and/or
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.2) [risk on return] where a person has claimed asylum in the United
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Kingdom (regardless of status of exit).
As is increasingly the practice of the Tribunal it was then subject to case management. Sometimes exchanges during the case management process can lead to the country guidance issue(s) being refined or altered, but this did not prove necessary in this case. We are grateful to both parties for their diligence in identifying and assembling relevant evidence. Following the replacement on 15 February 2010 of the Asylum and Immigration Tribunal (AIT) by a two-tier system, the Upper Tribunal, Immigration and Asylum Chamber is required to re-make the decision in the appeal.
Except for one point of clarification we have not sought to re-examine in this appeal the issues of the nature of military and national service in Eritrea, demobilisation and risk on return to persons who are or would be perceived as draft evaders or deserters which are the subject of the guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059. Nor do we need to re-examine the question of whether MA reflected a correct legal approach: in GM (Eritrea) & Others v Secretary of State for the Home Department [2008] EWCA Civ 833 it was held that the approach in MA was correct. In MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 the Supreme Court agreed.
On the issues we shall re-examine, the position as stated in MA was set out at paras 445-449 of that decision:
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“445. It is clear that a person of military service age or who is approaching military service age who leaves Eritrea illegally before undertaking or completing Active National Service (as defined in Article 8 of the 1995 Proclamation)… is reasonably likely to be regarded by the Eritrean authorities as a deserter and punished accordingly. The evidence of a “ shoot to kill” policy in respect of deserters, the imprisoning of parents and the process known as “ the giffa”, together with the more general objective evidence regarding the oppressive nature of the Eritrean regime, confirms that any such punishment is likely to be both extra-judicial and of such a severity as to amount to persecution, serious harm and ill-treatment.
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.446. What also emerges plainly from the evidence, is that a person of draft age, who has left illegally and who is not medically unfit will be similarly regarded even if he has completed Active National Service and has been “ demobilised” therefrom because, in the absence of special factors, he or she is still regarded as being subject to National Service. The country guidance in IN (Draft evaders – evidence of risk) Eritrea CG [2005] UKIAT 00106, KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165 and AH (Failed asylum seekers – involuntary returns) Eritrea CG [2006] UKAIT 00078 is therefore modified so as to include this category of persons amongst those who are in general at real risk.
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.447. As stated in paragraphs 371 - 374 above, we do not find that all returning failed asylum seekers are as such at real risk. That is so even if the returnee is of draft age (or approaching it). If the position were otherwise, we should expect to see some evidence in the background materials. Dr Pool did not advance such a view in his evidence. The only specific evidence was in the comments of Dr Kibreab, recorded in paragraph 374 above. Although we have found him in general a witness whose testimony carries weight, his comments on this issue are unrelated to any specific case history and struck us as unacceptably vague.
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.448. A person of or approaching draft age who fails to show that he or she left Eritrea illegally is not reasonably likely to be regarded with serious hostility on return, even if the authorities are or would be reasonably likely to be aware that that person had made an unsuccessful asylum claim abroad.
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.449. A finding as to whether an Eritrean appellant has shown that it is reasonably likely he or she left the country illegally is therefore likely to remain crucial in deciding risk on return to that country…. In making such a finding, judicial fact-finders will need to be aware of evidence that tends to show the numbers of those exiting Eritrea illegally appear to be substantially higher than those who do so legally and that distaste for what is effectively open-ended service at the behest of the state lies behind a good deal of the current emigration from Eritrea. Nevertheless, where a person has come to this country and given what the fact-finder concludes (according to the requisite standard of proof) to be an incredible account of his or her experiences that person may well fail to show that he or she exited illegally.”
Although these findings noted some points of disagreement with Professor Kibreab, the Tribunal had attached significant weight to his evidence (as stated at para 205) that those able to obtain exit visas were limited to eight categories:
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• Ministers
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• Ex-ministers
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• Party activists
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•3 Eritrean expatriates, namely those who would be British citizens working in Eritrea but of Eritrean origin
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•Elderly people over fifty who were forty or over in 1994 who wanted to go on Haj or visit relatives abroad
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• Scholarship students (the government now restricted their movements as many did not return)
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2• Government employees who attended conferences (although D Kibreab maintained this had recently stopped)
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• Relatives of those in power might arguably obtain exit visas as a result.
Professor Kibreab's evidence then was that, otherwise, no one under fifty for whatever reason could lawfully obtain an exit visa and would have to walk to Ethiopia or the Sudan, which was risky, and try to cross the border (para 206).
At a CMR hearing on 25 March 2010 SIJ P R Lane issued directions designed, inter alia, to assist the appellant's representatives in making a request to the respondent for information regarding student and other visas issued by the UK Embassy in Eritrea and the number of persons entering the UK pursuant to such visas (there being Freedom of Information considerations).
The respondent's response confirmed, inter alia, that since 2005 there had been eleven successful applications for entry clearance visas issued to students by the British Embassy in Asmara. A further direction following CMR hearings on 11 August 2010 and 24 November 2010 specified the need for the respondent to provide a further breakdown of the figures already furnished relating to the eleven students concerned, in particular with a view to establishing whether they actually entered the UK and for the appellant's representative's expert, Dr...
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