Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06372/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 22 August 2016
On 27 October 2016
Prepared on 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

B. K.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Brakaj, Solicitor, Iris Law Firm
For the Respondent: Mr McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant claimed asylum in the UK on 13 October 2014, and said that she had entered the UK illegally three days earlier. Her claim was based upon her assertion that she was a citizen of Eritrea, and as such faced a real risk of harm upon removal from the UK to that country.
2. Although the Respondent accepted that the Appellant was a citizen of Eritrea, her asylum application was refused on 26 March 2015, and a decision was made to remove her from the UK in consequence. The Appellant duly appealed that immigration decision and her appeal was in due course heard by First Tier Tribunal Judge Fisher. The appeal was dismissed in a decision promulgated on 22 January 2016 in the course of which her account of being a Pentecostal Christian, and her experiences as such in Eritrea was rejected as untrue. The Judge went on to conclude that although the Appellant claimed to have left Eritrea illegally at the age of 14 in the company of any aunt, since the Appellant was now the mother of a young child (born on 20 August 2015) she was exempt from national service, as indeed was conceded before him. He concluded that the Appellant did not face a real risk of being required to perform national service, and, that he was not satisfied she would face any punishment for illegal exit.
3. The Appellant lodged an application with the First Tier Tribunal for permission to appeal. The application was refused by Judge Lever on 4 April 2016 on the basis that it was no more than a disagreement with the Judge's findings and identified no arguable material error of law. Undaunted the Appellant renewed the application to the Upper Tribunal, asserting that the Judge had failed to make any finding on whether she had left illegally, and thus the Judge had conflated punishment for illegal exit with exemption from national service and had thus failed to follow the guidance to be found in MO (illegal exit - risk on return) Eritrea CG [2011] UKUT 190.
4. That application was granted by Upper Tribunal Judge McWilliam on 12 May 2016.
5. The Respondent filed a Rule 24 response on 14 June 2016. She pointed out that the Judge's adverse credibility findings were unchallenged, and that it was therefore open to the Judge to conclude as he had (after referring himself to the guidance in MO) that the Appellant had not established that she was at any risk of harm upon return to Eritrea.
6. The Appellant made no application pursuant to Rule 15(2A) of the Upper Tribunal Procedure Rules.
7. Thus the matter came before me.

Error of law?
8. On behalf of the Appellant Ms Brakaj accepted that the Judge had made a series of adverse credibility findings in relation to the Appellant's evidence, and that he had rejected her claim to be a Pentecostal Christian as a lie.
9. Ms Brakaj also accepted, as her predecessor before the Judge had done, that the Appellant was now exempt from national service in Eritrea as the mother of a young child.
10. Although the Appellant had asserted that she had left illegally at the age of 14 in the company of an aunt leaving the rest of her family behind in Eritrea, the Respondent had not accepted this element of her claim and had pointed to evidence that the Eritrean authorities did grant some adolescents exit visas, whilst refusing to grant exit visas to entire families.
11. Ms Brakaj argued that the Judge had made a material error of law in failing to make a clear finding of fact either that the Appellant had left illegally as she claimed, or legally as the Respondent had argued it was possible for her to do. She confirmed that this was the sole complaint advanced, and although this appeared initially to be her case she confirmed that she did not pursue the suggestion that the Judge had erred by failing to identify evidence in the bundle of documents lodged for the appeal that the Appellant's representative had not directed him to.
12. Mr McVeety argued that a proper reading of the decision led to the conclusion that the Judge had rejected the entirety of the Appellant's account. Without any reliable positive evidence to indicate the circumstances in which the Appellant had left Eritrea it followed that there was no obligation upon the Judge to make a finding that she had left illegally, and indeed no proper basis upon which he could have done so.
13. Furthermore Mr McVeety argued, as the Judge had identified, but the grant of permission did not, the Appellant had claimed to have left Eritrea in 2003, and not after 2008. Thus the guidance to be found in MO about the change in attitude on the part of the Eritrean authorities to the issue of exit visas since 2006, and particularly since September 2008, was relevant. Whilst on the Appellant's account she left when she was older than the age of 8 it did not necessarily follow from that alone that she must have left illegally.

Conclusions
14. In my judgement it is clear from paragraph 23 of the Judge's decision that he did not accept the Appellant's claim as to when, or how, she had left Eritrea. He made specific reference to the guidance in MO that illegal exit by a person approaching draft age cannot be assumed if they have been found wholly incredible, and pointed out that he had rejected the Appellant's evidence. It is plain that he was not prepared to accept in those circumstances her evidence as to when and how she had left. That was a conclusion that was well open to him on the evidence, and one to which he was entitled to come, and for which he gave adequate reasons. This was not a case in which the Appellant must have left illegally, whatever the truth of the rest of her account of her experiences.
15. Having reviewed the decision, and the criticisms made of it, in the light of the new country guidance decision of MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 443 I am satisfied that there is no need to reconvene the hearing for further argument. I am also satisfied that this guidance discloses no error of law in the Judge's approach to the evidence before him.
16. In the circumstances, and notwithstanding the terms in which permission to appeal was granted, the grounds disclose no arguable error of law in the Judge's approach to the evidence. The Appellant has therefore failed to establish that there was any error of law that requires the decision to be set aside and remade. The decision to dismiss the appeal is therefore confirmed.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 22 January 2016 did not involve the making of an error of law in the decision to dismiss the appeal that requires that decision to be set aside and remade. The decision to dismiss the appeal is accordingly confirmed.

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Deputy Upper Tribunal Judge JM Holmes
Dated 20 October 2016