Upper Tribunal (Immigration and asylum chamber), 2017-05-22, AA/11900/2015
| Jurisdiction | UK Non-devolved |
| Date | 22 May 2017 |
| Published date | 12 July 2017 |
| Hearing Date | 10 May 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/11900/2015 |
Appeal Number: AA119002015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA119002015
THE IMMIGRATION ACTS
|
Heard at Birmingham Employment Tribunal |
Decision Promulgated and sent |
|
on 10 May 2017 |
on 22 May 2017 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
HAMA
(Anonymity direction in force)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Howard of Fountain Solicitors
For the Respondent: Mrs Aboni Senior Home Office Presenting Officer
ERROR OF LAW FINDING
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This is an appeal against a decision of First-tier Tribunal Judge Lucas (‘the Judge’) promulgated on 17 October 2016, following a hearing at Taylor House on 15 September 2016, in which the Judge dismissed the appellant’s protection and human rights appeals.
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Permission to appeal was granted on a renewed application on the grounds it was arguable that the Judge made a material error of law regarding the risk on return to Eritrea as a woman of draft age.
Background
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The appellant is an Eritrea national born in 1987. Having considered the evidence the Judge sets out relevant findings from [58] of the decision under challenge. The Judge states in [59] that the Tribunal is mindful of the current country guidance decisions and that the respondent accepted that the appellant is a citizen of Eritrea which is the country to which removal directions have been set.
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The Judge did not accept the appellant is a witness of truth and formed the view that she had come to the UK for reasons other than a well-founded fear of persecution for a Convention reason [61].
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The core of the appellant’s account regarding events in Eritrea was not accepted and nor was it accepted that the appellant faced an adverse risk from the authorities in Eritrea. At [63] the Judge notes, on the appellant’s own admission, that she was exempt from military service on account of her marriage to an Eritrean citizen.
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At [67]–[68] the Judge finds:
67. The Tribunal forms the view that the Appellant had no profile at all when she left Eritrea and that her claim was without any foundation at all. She has produced no evidence to show that she has even lived in Eritrea recently and the Tribunal has noted that she has admitted owning an Eritrea passport. She has clearly sought to distance herself from the consequences of this admission in her Screening Interview because the possession of an Eritrea passport presupposes that it was legitimately issued to her. The consequence of this is that if she possessed and/or continues to possess an Eritrea passport, she had the ability to leave Eritrea with it. If therefore she was able to leave Eritrea with her own passport, it goes without saying that she must have been within an exempt category and could not have left that country illegally, whenever she did. The only evidence of her actually living in Eritrea in the recent past comes from her own evidence and those of her supporters who have attended this Tribunal to assist her claim. While the Tribunal does not doubt that those witnesses have attended this Tribunal in good faith, the Tribunal does not place great weight upon their evidence since the main purpose of their evidence is to assist the claim that is otherwise lacking in any substance or credibility.
68. The Tribunal has carefully considered the objective information and Country Guidance relating to Eritrea. It does not regard the Appellant as a witness of truth. She has clearly come to the UK for reasons unrelated to a well-founded fear for Asylum. She is not at risk of military service upon Eritrea and the fact that she possessed an Eritrea passport means that she fell within an exempt category of citizens who are able to acquire a national passport. There would have been no point in the Appellant acquiring a national passport if it was not going to be used.
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The Judge did not accept the appellant left Eritrea illegally and that an examination of the records in Eritrea would show the appellant was issued and possessed a valid Eritrea passport [71]. The appellant’s account was rejected as lacking credibility and it was not accepted she is a draft evader nor that she left the country illegally and therefore did not fall within any of the categories of risk identified in the relevant country guidance with regard to Eritrea [72].
Grounds
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Permission to appeal was sought on four grounds.
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Ground 1 asserts the Judge failed to apply relevant country guidance as it was accepted the appellant is an Eritrea national but it is claimed the Judge failed to appropriately consider whether the appellant would be perceived on return as a draft evader or deserter and hence face a real risk of persecution. It is asserted the Judge failed to explain whether the appellant will be perceived as having left illegally and therefore at persecutory risk and failed to explain which of the limited exception categories of person the Appellant is otherwise considered to fall within. It is also asserted the Judge failed to make findings in relation to the appellant’s contention that passport expired and the effect that would have upon return to Eritrea.
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Ground 2 asserts the Judge failed to give adequate reason as to why significant weight cannot be attached to the evidence of the appellant’s witnesses particularly given that the Tribunal accepted that the witnesses attended the tribunal in good faith.
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Ground 3 asserts the Judge failed to make findings as to the persecutory risk the Appellant faced on return to Eritrea as a member of a Particular Social Group namely a single loan female returning with a child and/or persecutory risk the appellant faces on return as a failed asylum seeker.
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Ground 4 asserts the Judge failed to make findings in relation to the appellant’s fear her daughter would be subject to FGM on return to Eritrea, failed to give reasons why paragraph 276ADE(1)(vi) of the Immigration Rules did not apply, and failed to address the respondent’s duties under section 55 Borders, Citizenship and Immigration Act 2009.
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The Secretary of Status filed a Rule 24 reply which asserts the Judge directed himself appropriately and has given adequate reasons for the finding the appellant did not leave Eritrea illegally and that overall the appellant was not credible in her account of events and that, given the findings by the Judge, the appellant cannot demonstrate that she would be at risk on return to Eritrea.
Error of law
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The current country guidance case relating to Eritrea, judgment of which was handed down on 7 October 2016 between the date of the First-tier Tribunal hearing and promulgation of the decision under challenge, is MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC) in which it was held that:
(i) 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 following:
(ii) The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service;
(iii) The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men;
(iv) The categories of lawful exit have not significantly changed since MO and are likely to be as follows: (a) Men aged over 54; (b) Women aged over 47 (c) Children aged under five (with some scope for adolescents in family reunification cases; (d) people exempt from national service on medical grounds; (e) People travelling abroad for medical treatment; (f) People travelling abroad for studies or for a conference; (g) Business and sportsmen; (h) Former freedom fighters (Tegadelti) and their family members; (i) Authority representatives in leading positions and their family members;
(v) It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable,...
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