Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09837/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 2nd August 2016
On 5th August 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MRS KIDST FITWI
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: P Turner (instructed by Lei Dat & Baig, Solicitors)
For the Respondent: Mr G Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission by the Appellant against a judgment of the First-tier Tribunal, Judge O'Donnell, promulgated on 26th November 2015 in which he dismissed the Appellant's appeal against the Secretary of State's decision to refuse her asylum claim.
2. The Appellant is a citizen of Eritrea born on 15th January 1990. She left Eritrea with her parents when aged three, moving to Ethiopia for her father's employment. In 1998 her parents returned to Eritrea and she travelled to Sudan. She was employed, she claims, as a domestic servant in Sudan. She claimed to have been sexually abused by her employer and became pregnant by him after being raped. She was then dismissed by his wife. She sought refuge in a church where she met her future husband.
3. Her husband visited his mother in Ethiopia in 2014, taking the Appellant's daughter with him. However, he was arrested and wrongly accused of being a supporter of the OLF. He remains in prison and her daughter remains in Ethiopia with his mother.
4. After her husband was arrested the Appellant decided to leave Sudan and she came to the UK via Egypt, Greece and France and claimed asylum. Her asylum claim was based on her religion as a Pentecostal Christian and her imputed political opinion.
5. The Judge noted that her nationality was accepted. He accepted that she had been born in Eritrea and left at the age of three, moving to Ethiopia.
6. The Judge did not accept the core of her asylum account on the basis that her own and the evidence of her witness was unreliable. He did not accept that she is a Pentecostal Christian or that she would be at risk on return to Eritrea due to her religion or imputed political opinion. Based on the Judge's adverse credibility findings he had to assess the Appellant's risk on return to Eritrea on the only basis left to her, namely that she was of an age where she would be liable for military service. The Judge accepted that she would be unable to prove that she was a married woman or that she had a child. However, she had not left Eritrea illegally and was not, nor would she be viewed as a draft evader, having left at the age of three. He concluded on the basis of the country information and country guidance that the requirement to perform national service, even endless national service, in Eritrea as a single woman did not entitle her to international protection as it does not amount to persecution or inhuman or degrading treatment.
7. The grounds seeking permission to appeal do not to challenge the factual findings; rather they challenge the Judge's conclusion that being required to perform endless national service does not in and of itself represent a risk that entitles her to protection. The grounds refer to the fact that the country information and country guidance cases were tainted by the Danish fact-finding mission report which has been heavily criticised.
8. Whilst I accept the Danish report has been heavily criticised and indeed tends not to be relied upon by Judges in such cases, that does not mean that either case law or the country information indicates that military service, even endless military service, in Eritrea is in and of itself persecutory or inhuman or degrading treatment. The Appellant's representative's arguments are therefore misconceived. Had she exited illegally when of draft age she would have been perceived as a draft evader and that would entitle her to international protection. However, none of those apply in this case. Mr Turner was unable to refer me to any country guidance case law that would entitle me to find that the requirement to perform military service, absent any risk factors, would entitle her to succeed.
9. Accordingly I find the First-tier Tribunal did not make an error of law material to the outcome and the decision is upheld.
Notice of Decision

The Appellant's appeal to the Upper Tribunal is dismissed.

There has been no application for an anonymity order and I do not make one

Signed Date 4th August 2016

Upper Tribunal Judge Martin