Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09549/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons Promulgated
On 9 December 2016
On 12 December 2016

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
F N
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Greer of Broudie Jackson and Cantor
For the Respondent: Mr G Harrison Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Pickup promulgated on 21 March 201 which purported to allow the Appellants appeal against a refusal of asylum to the limited extent that the decision was not in accordance with the law and the Respondents decision remained outstanding.
Background
4. The Appellant was born on 25 December 1992 and is a national of Eritrea.
5. On 23 December 2014, the Appellant applied for asylum on the basis that he absconded from military service on 27 June 2014 and exited the country illegally.
6. On 12 June 2015, the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) The Appellants nationality was accepted.
(b) It was accepted that the Appellant was in active military service when he left the country.
(c) The Appellants account of his escape from detention was not accepted as it was found to be implausible.
(d) It was not accepted that simply leaving the country illegally would put the Appellant at risk on return relying on the Country Information and Guidance Eritrea National Service March 2015 and the Country Information on Illegal Exit.
The Judge's Decision
7. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Pickup ("the Judge) allowed the appeal against the Respondent's decision to the limited extent set out above. The Judge found
(a) The account given by the Appellant of escaping military service was not believable.
(b) The Respondents assessment of risk on return failed to consider MO (illegal exit-risk on return) Eritrea CG [2011] UKUT 00190 and MA (Draft Evaders; illegal departures; risk) Eritrea CG [2007] UKAIT 0059.
(c) The decision of the Respondent was not in accordance with the law having failed to consider country guidance.
8. Grounds of appeal were lodged arguing that the Judge acted ultra vires in that he failed to take into account the grounds of appeal under section 84 of the Immigration Act 2014 and he had no power to find that the decision was not in accordance with the law ; the Judge misdirected himself in law and was required to determine the case on its merits taking into the CG cases referred to and given the concessions made that the Appellant was performing military service and would at the very least be viewed as having exited illegally he should have allowed the appeal.
9. On 11 April 2016 First-tier Tribunal Judge Pedro gave permission to appeal.
10. At the hearing Mr Greer relied on the grounds of appeal and Mr Harrison relied on the Rule 24 Notice.
Finding on Material Error
11. Having heard those submissions, I reached the conclusion that the Tribunal made a material error of law. I am satisfied that the decision in issue fell for consideration under section 844 of the Immigration Act 2014. In relation to an asylum decision an appeal must be brought on the grounds specified which no longer include that the decision was not in accordance with the law.
12. Therefore I accept that the Judge was obliged to consider whether the Appellant was at risk on return to Eritrea on the factual basis that was before him which was that the Respondent made an unequivocal concession that the Appellant had absconded from military service and he should have made a finding as to whether the Appellant did, as a fact exit illegally or might be viewed as someone who had exited illegally.
13. I therefore set aside the decision which the parties were content for me to remake.
Remaking the decision
14. The Appellant is clearly by reference to the background material of an age where he would be subject to military service. The Respondent in the refusal letter conceded that he performed such service albeit finding that his account of his escape was implausible. I am satisfied that in MO whilst it remains the position that failed asylum seekers as such are not generally at real risk of persecution or serious harm on return, on present evidence the great majority of such persons are likely to be perceived as having left illegally and this fact, save for very limited exceptions, will mean that on return they face a real risk of persecution or serious harm. I am satisfied that the Appellant does not come within the category of anyone who would be allowed to exit legally and indeed Mr Harrison did not seek to argue this.
15. Therefore I find that the Appellant has evaded military service and has exited illegally. There was no argument placed before me that there was a basis to go behind the CG case given that the 'Danish Report' previously relied on by the Respondent has been discredited.
Decision
16. There was an error on a point of law in the decision of the First-tier Tribunal such that the decision is set aside
17. I remake the appeal.
18. I find that the Appellant has discharged the burden of proof on him to show that he has a well-founded fear of persecution for a reason recognised by the Geneva Convention. Accordingly, the Appellant's removal would cause the UK to be in breach of its obligations under the Geneva Convention.
Conclusions on ECHR
19. On the facts as established in this appeal, there are substantial grounds for believing that the Appellant's removal would result in treatment in breach of ECHR.
Decision
20. The appeal is allowed on asylum grounds.
21. The appeal is allowed on human rights grounds.
22. No anonymity direction is made

Signed Date 9.12.2016
Deputy Upper Tribunal Judge Birrell