Re MA (Draft Evaders; Illegal Departures; Risk) Eritrea CG

JurisdictionEngland & Wales
JudgeGoldstein,Jarvis,Mr R Baines
Judgment Date02 March 2007
Neutral Citation[2007] UKAIT 59
CourtAsylum and Immigration Tribunal
Date02 March 2007

[2007] UKAIT 59

Asylum and Immigration Tribunal





Mr R Baines JP

Secretary of State for the Home Department

For the Appellant: Ms V Quinn, Counsel

For the Respondent: Mr J Parkinson (for the hearings on 7/11/06 and 4/01/07)

Mr Y Oguntolu (for hearing on 2/03/07)

MA (Draft evaders — illegal departures — risk) Eritrea CG

  • 1. A person who is reasonably likely to have left Eritrea illegally will in general be at real risk on return if he or she is of draft age, even if the evidence shows that he or she has completed Active National Service, (consisting of 6 months in a training centre and 12 months military service). By leaving illegally while still subject to National Service, (which liability in general continues until the person ceases to be of draft age), that person is reasonably likely to be regarded by the authorities of Eritrea as a deserter and subjected to punishment which is persecutory and amounts to serious harm and ill-treatment.

  • 2. Illegal exit continues to be a key factor in assessing risk on return. A person who fails to show that he or she left Eritrea illegally will not in general be at real risk, even if of draft age and whether or not the authorities are aware that he or she has unsuccessfully claimed asylum in the United Kingdom.

  • 3. This Country Guidance supplements and amends to the above extent the Country Guidance in IN (Draft evaders – evidence of risk) Eritrea CG [2005] UKIAT 00106, KA (draft-related risk categories updated) Eritrea CG UKAIT 00165, AH (Failed asylum seekers – involuntary returns) Eritrea CG [2006] UKAIT 00078 and WA (Draft-related risks updated – Muslim Women) Eritrea CG [2006] UKAIT 00079.


The Appellant, born on 1 November 1976, is a citizen of Eritrea. He appeals against the decisions of the Respondent respectively dated 15 and 23 July 2005, refusing to him the grant of asylum under paragraph 336 of HC395 (as amended) and directing his removal as an illegal entrant from the United Kingdom.


The brief immigration history of the Appellant is that he claims to have entered the United Kingdom clandestinely (via a lorry) on 24 January 2005. He claimed asylum and illegal entry papers were served upon him, on the same day.


The Appellant's appeal against those decisions came before Immigration Judge Reid, who on 13 September 2005 dismissed the appeal on asylum and human rights grounds.


The Appellant obtained an order for the reconsideration of the determination of Immigration Judge Reid, the first stage hearing of which, was heard before a panel comprising Senior Immigration Judges Gleeson and Pinkerton on 14 August 2006, when the Tribunal found that the Immigration Judge had made a material error of law and directed that the appeal be set down for a full second stage reconsideration hearing. The Panel's reasons were as follows:

  • “1. The Appellant has been granted review of the determination of Immigration Judge Reid, who dismissed his appeal against the Secretary of State's decision to refuse to grant him asylum and to set removal directions to Eritrea, his country of origin. Reconsideration was granted because Senior Immigration Judge Jarvis considered it arguable that the Immigration Judge fell into material errors of law including failure to make findings or clear findings as to relevant facts, alternatively that she reached findings which were not based on the evidence. Further, it was arguable that the Immigration Judge's finding of lack of real risk of persecution or other serious harm as a deserter from military service was predicated on a fundamental misreading of and misapplication of the background evidence and the guidance in IN (Draft Evaders – Evidence of Risk) Eritrea CG [2005] UKAIT 00106. Additionally, there was no consideration of or findings in relation to the risk on return to the Appellant as a failed asylum seeker per se.

  • 2. At the error of law hearing, Ms V Quinn of Counsel (instructed by White Ryland Solicitors) appeared for the Appellant. Mr J Gulvin represented the Secretary of State. An allegation in the grounds for review upon which leave was given in relation to alleged interpreter difficulties is not pursued.

  • 3. The Appellant is still a relatively young man and although he has performed his primary [National] service, remains eligible. The Immigration Judge found that he had probably been demobilised, but the objective evidence on demobilisation does not support that finding.

  • 4. The Immigration Judge's determination is based exclusively on the CIPU Country Report evidence but does not examine the other materials in the Appellant's bundle. After examination of the background evidence (particularly pages 80, 20, 117, 137, 165 and 201) of the Appellant's bundle, together with the record of proceedings in which the Immigration Judge was plainly referred to a number of areas of background evidence (including some of those pages) which are not referred to in her determination, Mr Gulvin conceded, and the Tribunal agreed, that there were significant omissions in the fact-finding in relation to the military service evasion element of the Appellant's account. This appeal therefore proceeds to second stage reconsideration by consent.

  • 5. The appeal was therefore set down for full reconsideration by any Immigration Judge other than Mrs Reid.”

The Claim

The Appellant's claim, at its most extensive as revealed in his various accounts, can be summarised as follows. He was born in Ethiopia of Eritrean parentage and moved with his family to Eritrea in 1977. The Appellant's mother and brothers joined the EPLF.


On 20 October 1997 the Appellant was ordered to do his military service and was taken to Sawa Military Training Camp. He completed his training on 3 March 1998.


As the Appellant had grown up in a Revolutionary School and spent 2 years teaching ‘ fighters’ in the Barka region, he was exempted from doing one year's national service as he had already served his country. He simply returned home.


In April 1998 the Appellant received emergency call-up papers and was informed he would be sent abroad to study. Initially, the Appellant was sent to Hashferai.


The border war broke out between Ethiopia and Eritrea and in July 1998 the Appellant was sent to a naval base to train para-commandos.


In October 1998 the Appellant joined the Naval Training Centre in Dongolo.


In August 2003 the Appellant graduated as a Naval Officer from the Electrician Department with the rank of sub-lieutenant. The Appellant was working as an engineer on a ship.


Following graduation the Appellant was sent to Massawa to work at the Naval Base as an electrician. He was assigned to work in Gedem (near Massawa) at a new building.


The Appellant produced photographs of himself in military uniform as an addendum to his statement of 4 May 2005.


At interview on 13 May 2005 the Appellant gave his last address in his country of origin as “Navy address: Eritrean Navy, Massawa, Eritrea”. He confirmed that he had undergone military service from 20 October 1997 to 3 March 1998. He had received emergency call up papers in April 1998.


In that latter regard, the Appellant explained that he did not join the Navy upon call up but three months later. The Navy was not his choice.


In the Appellant's statement of 26 August 2005, he was clear that he had never been discharged from the military.


In the Appellant's subsequent statement of 7 September 2006 the Appellant explained that he was initially called up for national service in October 1997 and was only required to complete six months military training because he obtained an exemption on the grounds that he had spent two years teaching after independence in 1992. The Appellant had been recalled for national service in April 1998 just before the war broke out in May 1998.


At paragraph 4 of his September 2006 statement, the Appellant maintained that no one was discharged from national service unless they were invalided and that he had never heard of anyone being discharged or demobilised nor had he heard of any demobilisation programmes. The Appellant attached a copy of his Naval Diploma to his statement.


It was the Appellant's account, that whilst at the Naval base in Massawa, he became a member of the EPLD-DP (now EDP). He passed information about the conditions of the failed asylum seekers who had been returned to Eritrea from Malta and who were said to have been detained on return. Indeed, he passed information on to the EDP about the treatment of prisoners continually, until he left Eritrea.


The Appellant claimed that his problems began whilst on a months leave in January 2004. He had become engaged in that month to his girlfriend who was a member of the EPLD-DP. In that same month, the Appellant claimed to have been arrested following his fiancée's arrest; she had apparently given the authorities the Appellant's name. The Appellant was arrested on suspicion of being involved with the opposition although the authorities did not apparently know the specific party with which the Appellant was involved.


The Appellant was detained in Gedem where he claimed to have been ill treated. The Appellant's account was that he became very ill in November 2004 and as a consequence was taken for treatment to the Gerar Hospital in Massawa.


The Appellant claimed that on 26 November 2004 whilst in hospital, three people came in gowns and helped him escape. The guard outside the Appellant's hospital room apparently did not see him escaping.


The Appellant was taken to Amatere where he remained until 3 December 2004.


In the Appellant's statement of 4 May 2005, he described how an agent took him from his home to the Sudanese...

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54 cases
  • Upper Tribunal (Immigration and asylum chamber), 2016-10-07, [2016] UKUT 443 (IAC) (MST and Others (national service – risk categories) (CG))
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 7 October 2016
    ...guidance 1. Although reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059 and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 00190 (IAC), this case replaces that with the 2. The Eritrean system of militar......
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    • Asylum and Immigration Tribunal
    • 9 September 2008
    ...indeed it could not be in the light of the Tribunal's country guidance case MA (Draft evader – illegal departures – risk) Eritrea CG [2007] UKAIT 00059, that if the Appellant's account was true he is at risk of serious ill-treatment contrary to Article 3 of the ECHR if he returned to Eritre......
  • Upper Tribunal (Immigration and asylum chamber), 2009-03-09, [2009] UKAIT 12 (IH (s.72, 'Particularly Serious Crime'))
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 9 March 2009
    ...indeed it could not be in the light of the Tribunal’s country guidance case MA (Draft evader – illegal departures – risk) Eritrea CG [2007] UKAIT 00059, that if the Appellant’s account was true he is at risk of serious ill-treatment contrary to Article 3 of the ECHR if he returned to Eritre......
  • MA (Somalia) and Others v Secretary of State for the Home Department
    • United Kingdom
    • Supreme Court
    • 24 November 2010
    ... ... protection, and that he would be at a real risk of physical violence which crossed the Article 3 ... 18 GM (Eritrea), YT (Eritrea) and MY (Eritrea) v Secretary of ... quite different from that relating to illegal exit by members of such a class of persons about ... ...
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1 books & journal articles
  • Do human rights treaties help asylum-seekers? Lessons from the United Kingdom.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 48 No. 1, January - January 2015
    • 1 January 2015
    ...Becerikli v. Sec'y of State for the Home Dep't, [2006] EWCA (Civ) 693, [9], (Eng.). (102.) See MA v. Sec'y of State for the Home Dep't, [2007] UKAIT 00059 [207] (103.) See Darji v. Sec'y of State for the Home Dep't, [2004] EWCA (Civ) 1419 [36] (Eng.). (104.) See Djali v. Immigration Appeal ......

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