Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09204/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision and Reasons Promulgated
On: 6th December 2016
On: 8th December 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

HFM
(Anonymity direction made)
Appellant

And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms Haughian, Broudie Jackson Canter
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Eritrea born in 1992. He appeals with permission1 the decision of the First-tier Tribunal (Judge G.D Tobin) dated 3rd March 2016 to dismiss his appeal on asylum and human rights grounds.

Anonymity Order

2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background and Matters in Issue before the First-tier Tribunal

3. The Appellant claimed a well-founded fear of persecution in Eritrea for reasons of his political opinion. He claimed to be an opposition activist who did not want to perform military service and who had left the country illegally.

4. His claim was refused on the 3rd June 2015. The Respondent accepted that the Appellant was Eritrean but found his evidence as to his political activism vague and inconsistent. The refusal letter noted his claimed desire to avoid military service but relied upon the evidence provided by the Danish Immigration Service in a report entitled 'Eritrea - Drivers and Root Causes of Emigration, National Service and the Possibility of Return' (the 'Danish report') to argue that in fact draft evaders are not viewed as traitors and that they can avoid any problems simply by paying the diaspora tax and signing a letter of apology.

5. When the matter came before the First-tier Tribunal it too accepted the Appellant's claimed age (at that point 23) and nationality. The Tribunal did not believe that he had been involved in opposition activities as claimed. As to the possibility of serious harm as a result of having evaded the draft, the Judge wrote "despite the criticism of many in the human rights industry, I find the Danish Immigration Service's report and ensuing United Kingdom country guidance measured and helpful". Apparently accepting that the Appellant had not yet completed his military service, the determination goes on to find that conscription does not amount to persecution. The Tribunal further found that although the Appellant had left the country illegally he would not be at risk as a result. The appeal was dismissed.

6. The grounds of appeal are that the Tribunal erred in failing to provide any reasons as to why he was prepared to place so much reliance on the Danish report. The Appellant's representative had provided a detailed explanation of the problems with that report, not least in the fact that one of the main researchers had publicly distanced himself from the conclusions as published. There was no cogent reason to depart from the country guidance in MO (illegal exit - risk on return) Eritrea CG [2011] and MA (draft evaders; illegal departures; risk) Eritrea CG [2007] UKAIT 00059. It was further submitted that the determination is flawed for lack of reasoning and/or findings made unsupported by any evidential foundation.

My Findings

7. I need not address the grounds in any great detail since the Respondent now accepts that in light of the decision in MST & Ors (national service - risk categories) CG [2016] UKUT 443 (IAC) the decision of the First-tier Tribunal could not stand. Although I was not aware of this prior to the hearing, the Secretary of State for the Home Department had in fact written to the Upper Tribunal, on the 30th November 2016, to request permission to withdraw her decision as she intended to grant refugee status to the Appellant. Before me Mrs Aboni renewed this application. It was opposed by Ms Haughian for the Appellant who expressed concern that withdrawal (in her experience) frequently leads to long delay. With that in mind, and the fact that both parties were in attendance, I refused permission to the Respondent to withdraw her decision and indicated that I would instead issue a short determination setting the decision of the First-tier Tribunal aside, and substituting the decision with one allowing the appeal on asylum and human rights grounds.

8. My brief reasons are as follows. In its decision the First-tier Tribunal declined to follow the established country guidance in MO and MA in favour of the conclusions in the Danish report. In doing so it failed to give adequate reasons as to why that report justified departure from the country guidance. The comment as to the criticisms made of that report by the "human rights industry" does not amount to analysis; the finding that the Danish report was "measured and credible" is made with no explanation at all. In MST & Ors the Upper Tribunal expressly rejects the conclusions of the Danish report [at 334]: "we do not accept that the evidence goes anywhere close to establishing that the payment of the tax and the signing of the letter would enable draft evaders and deserters to reconcile with the Eritrean authorities". The country guidance in MO and MA is expressly reconfirmed. I should add that even if MST had not been framed in the terms that it is, I would have very likely set this decision aside. It is bereft of reasoning and makes no attempt at all to evaluate the competing evidence that was before it.

9. It being accepted that the Appellant is today a 24 year-old male Eritrean who left the country illegally and who has not completed military service, applying the findings in MST & Ors, this appeal must be allowed.

Decisions

10. The determination of the First-tier Tribunal contains an error of law and it is set aside in its entirety.

11. The decision in the appeal is re-made as follows:

"The appeal is allowed on asylum grounds.

The Appellant is not entitled to humanitarian protection because he is a refugee.

The appeal is allowed on human rights grounds."

12. There is an order for anonymity.

Upper Tribunal Judge Bruce
6th December 2016