MY (Country Guidance cases – no fresh evidence)
| Jurisdiction | England & Wales |
| Judge | DR H H STOREY,SENIOR IMMIGRATION JUDGE |
| Judgment Date | 14 November 2005 |
| Neutral Citation | [2005] UKAIT 158 |
| Court | Asylum and Immigration Tribunal |
| Date | 14 November 2005 |
[2005] UKAIT 158
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Dr H H Storey (Senior Immigration Judge)
Mr S L Batiste (Senior Immigration Judge)
For the appellant: Miss V Quinn, Counsel, instructed by White Ryland
For the respondent: Mr G Saunders, Home Office Presenting Officer
MY (Country Guidance cases — no fresh evidence) Eritrea
The AIT Practice Directions 2005 mean that a Country Guideline case is authoritative in any subsequent appeal so far as that appeal relates to the country guidance in question and depends upon the same or similar evidence: see also R (Iran) [2005] EWCA Civ 982 . In a case depending, as did this, on the same or similar evidence, a party will not be permitted to challenge the country guidance findings except by the production of new evidence. Attempts to contest the findings in a CG case without such fresh evidence are not permissible.
The appellant is a national of Eritrea. By a determination notified on 3 June 2005 the Immigration Judge Mr T. Ward dismissed her appeal against a decision refusing to grant asylum and refusing to grant leave to enter. It is salient to mention at this point that Miss Quinn was also the representative before Mr Ward.
The Immigration Judge set out the basis of the appellant's claim as follows:
‘9. The appellant claims to be a member of the Eritrean Liberation Front (ELF). She claims to have fled to Addis Ababa when she heard that the Eritrean Government were to call her up for military service. She left Ethiopia and went to Bahrain in March 1998 to work as a domestic worker. She travelled there under a false name … She returned to Bahrain and married her husband in January 2001. The appellant claims that her father, two brothers and her husband were members of the ELF. She claims that the Eritrean government supporters were harassing her to contribute financial assistance to the Eritrean government while she was in Bahrain. According to the appellant her father was arrested on 1 August 2004. He was killed. On 15 October 2004 the appellant went back to Eritrea to visit her mother. Whilst there her brother Y was arrested. He does not know what had happened to him. On 12 November 2004 she went back to Bahrain. Her employer arranged a visa for her in the UK. However, thereafter her employer cancelled her leave in Bahrain and terminated her work. She left Bahrain and went back to Eritrea on 7 January 2005. On 7 February 2005 while she was out with a friend Eritrean security went to her house and searched it. They were looking for the appellant and her brother. Her brother T was arrested. The security forces asked about the appellant's whereabouts. As a result of all of this the appellant decided to leave Eritrea and came to the UK.
The Immigration Judge did not believe this account: he found her whole account “a tissue of lies”. It is not necessary to set out his reasons, since the grounds of appeal did not challenge his adverse credibility findings. Miss Quinn confirmed that the appellant's appeal was brought solely on the basis that the Immigration Judge was wrong not to allow the appeal simply on the basis that she was a national of Eritrea who had applied for asylum in another country and who was still of military service age. It is not in dispute that the appellant is 29 years old.
The grounds of appeal raised four main points. Firstly they challenged the reliance the Immigration Judge placed on the Country Guidance case of SE (Deportation – Malta – 2002 – General Risk) Eritrea CG[2004] 00295. They pointed out that it had been put to the Immigration Judge at the hearing that the Tribunal in SE overlooked that the Maltese returnees were not all draft evaders and deserters; 40% (95 out of 233) were civilians. It had also been put to the Immigration Judge that despite noting that all 233 of the Maltese returnees were detained for some weeks, the Tribunal in SE had failed to determine whether the detention involved (in Adi Abeto prison) arose in conditions that were persecutory and contrary to Article 3.
Miss Quinn's second challenge was to the Immigration Judge's assessment of the facts concerning the 111 Libyan returnees who arrived in Eritrea on 21 July 2004. Contrary to the significance the Immigration Judge appeared to attach at paragraph 38 to the fact that ‘most’ if not all of the Libyan returnees had deserted from military service or evaded conscription, the evidence was that to date none of them has been released.
Miss Quinn's third challenge centred on the comments of the Immigration Judge at paragraph 39, which again relied on SE.
‘In the case of SA it was stated that the Tribunal did not think that the contents of the May 2004 Amnesty International Report justified the conclusion that returnees generally were at risk. I was referred to that report by the appellant's representative since it stated that even the act of applying for asylum abroad would be regarded as evidence of disloyalty and reasons to detain and torture a person returned to Eritrea after rejection of asylum. For the reasons contained in the case of SA I do not accept that to be the case. I do adopt the Tribunal decision in that case to the effect that the mere fact of being a returnee to Eritrea does not mean that someone will face a real risk of serious harm.
[It is accepted on both sides that by SA the Immigration Judge meant here to refer to SE].
Since SE in fact nowhere dealt with the relevant passage of the Amnesty International report mentioning treatment of persons known to have claimed asylum abroad, the Immigration Judge was wrong, said Miss Quinn, to reject the argument she raised concerning it by reference to SE.
Miss Quinn's grounds also attacked the Immigration Judge's reliance on the most recent Tribunal Country Guideline case on Eritrea, IN (Draft evaders – evidence of risk) Eritrea CG [2005] UKIAT 00106. That reliance was misplaced, she said, because she had identified to the Immigration Judge issues concerning the Maltese returnees and the Libyan returnees which IN had before it but failed to address.
We are not persuaded by Miss Quinn's grounds of appeal that the Adjudicator materially erred in law. We remind ourselves that we are not deciding whether the Immigration Judge's conclusions were the right ones, but only whether they were conclusions which were reasonably open to her on the evidence: see CA [2004] EWCA Civ 1165.
At the time the Immigration Judge determined this appeal, viz 3 June 2005, the principal and only Tribunal Country Guideline case dealing with military service issues was IN, which had been notified and placed on the AIT website on 24 May 2005. MA and SE were removed from the IAT website on the same day.
This state of affairs has considerable significance for Miss Quinn's grounds of appeal since much of their focus is on SE, which by the time the Immigration Judge determined this appeal was no longer a Country Guideline case.
This state of affairs also has importance for our reconsideration of this appeal, since it is clear that the Immigration Judge, although he did refer to SE and other earlier Country Guidance cases, sought to reach his conclusions in the light of the latest Country Guidance case on Eritrea, i.e. IN.
We first of all need to establish whether, on the basis of the Immigration Judge's findings of fact, he was entitled to conclude, in the light of the guidance given in IN, that the appellant would not be at risk.
As we have already noted, the Immigration Judge made adverse credibility findings which Miss Quinn does not dispute. At paragraph 38 he found:
‘In my opinion the appellant is not being sought by the government for evading military service nor had she deserted. It is clear also in my opinion that she left the country on a genuine passport. If the authorities were interested in her she would not have been able to do so with such ease.’
As such the appellant's only relevant characteristics were that she was (1) a woman, and (2) of draft age.
Miss Quinn initially appeared to argue that the Immigration Judge was wrong to consider that a woman of draft age could not succeed under current Tribunal country guidance because IN had not heard argument on the risks faced by individuals of draft age on return to Eritrea and issued no guidance on this category. This argument is plainly misconceived. IN did hear arguments relating to those of draft age, male and female, and did give relevant guidance. At paragraph 44(ii) it stated:
‘There is no material distinction to be drawn between deserters and draft evaders. The issue is simply whether the Eritrean authorities will regard a returnee as someone who has sought to evade military service or as a deserter. The fact that a returnee is...
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