Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08820/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 13 December 2016
On 19 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

S G T
(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: Mr O James instructed by Barnes Harrild & Dyer, Solicitors

DETERMINATION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Respondent (SGT). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. For convenience, although this is an appeal by the Secretary of State, I will refer to the parties as they appeared before the First-tier Tribunal.
Background
3. The Appellant is a citizen of Eritrea who was born on 4 June 1986. He arrived in the United Kingdom on 12 December 2014 and claimed asylum. On 13 May 2015, the Secretary of State refused the Appellant's claim for asylum and on human rights grounds. However, the Secretary of State accepted that the Appellant was entitled to humanitarian protection and on 14 May 2015 was granted five years' leave to remain.
The First-tier Tribunal's Decision
4. The Appellant appealed to the First-tier Tribunal against the decision to refuse his asylum claim. The appeal was heard by Judge Price on 1 March 2016. Before Judge Price, a number of facts were accepted:
(1) The Appellant is a national of Eritrea;
(2) The Appellant evaded military service in 2005;
(3) That having fled to Egypt, when returned to Eritrea in June 2008 he was detained and received political education;
(4) The Appellant escaped whilst being transferred to a prison and is a military deserter;
(5) The Appellant left Eritrea illegally;
(6) The Appellant has established that he would be at risk on return to Eritrea as a consequence.
5. What was not accepted by the respondent was that the Appellant's fear arose from a Convention reason, namely his imputed political opinion. Before Judge Price, the Secretary of State contended that the background evidence did not establish that any ill-treatment would be based upon his political opinion.
6. Judge Price, however, found that the appellant's evasion of military service would be regarded as an expression of political opinion by the Eritrean authorities. As a consequence, she allowed the appellant's appeal on asylum grounds.
The Appeal to the Upper Tribunal
7. The Secretary of State sought permission to appeal Judge Price's decision to the Upper Tribunal on the basis that she had failed to deal with the issues raised by the respondent in the refusal letter and the submissions made at the hearing relevant to the issue of whether a Convention reason was established.
8. On 20 April 2016, the First-tier Tribunal (Judge M J Gillespie) granted the Secretary of State permission to appeal.
9. Thus, the appeal came before me. At the hearing, Mr Richards, who represented the Secretary of State relied upon the grounds and, in particular, that the judge had failed to engage with the background material relied upon by the Secretary of State before the judge. Whilst Mr Richards invited me to find that the judge had, therefore, erred in law, he accepted that the legal position had moved on since the hearing before the judge as a result of the Upper Tribunal's recent Country Guidance decision in MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 443 (IAC). He accepted that, in the light of MST and Others, the appellant faced a real risk of persecution or serious harm on return to Eritrea as a military deserter and, as the Upper Tribunal had recognised, where there was such a risk: "It is highly likely that it will be persecution for a Convention reason based on imputed political opinion."
10. Consequently, Mr Richards invited me, having found a material error of law, to allow the appeal on asylum grounds in the light of MST and Others.
11. Mr James, who represented the Appellant, concurred in that outcome.
Decision
12. I accept Mr Richards's submissions that the inevitable outcome of this appeal is that it should be allowed on asylum grounds in the light of MST and Others taken together with the facts accepted before Judge Price set out at para 4 above.
13. In the light of the position taken by the parties, I set aside the decision of the First-tier Tribunal on the basis that its decision involved the making of an error of law.
14. I remake the decision allowing the appellant's appeal on asylum grounds.

Signed

A Grubb
Judge of the Upper Tribunal

Date