Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10866/2015

THE IMMIGRATION ACTS

Heard at Hatton Cross
Decision & Reasons Promulgated
On 2 December 2016
On 13 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

G B
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr Eric Fripp, Counsel, instructed by Supreme Solicitors
For the Respondent: Mr Esan Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the resumed hearing of the appeal of G B (hereafter the Appellant, as he was before the First-tier Tribunal) following my error of law decision promulgated on 28 April 2016 in which I found that the First-tier Tribunal had materially erred in law. This in turn led to me setting aside its decision (my error of law decision is annexed to this decision).
2. In summary I found that the First-tier Tribunal had erred in failing to deal with the issue of whether the Appellant was ever exempt from national service on account of his epilepsy. In addition I found the First-tier Tribunal had failed to engage with country information provided by the Secretary of State (hereafter, the Respondent once again), which sought to suggest that the situation on return was not now as set out in the previous country guidance case of MO (illegal exit - risk on return) Eritrea CG [2011] UKUT 190 (IAC). I specifically preserved findings of fact to the effect that the Appellant is an Eritrean national, that he was not a practising Pentecostal Christian, and that he had never been arrested or detained in Eritrea.
3. In my directions to the parties I set out the live issues, namely whether the Appellant had been exempt from military service at the time of his departure from Eritrea in 2009, whether he left the country illegally, and what the situation would be in respect of the risk on return now. All of this was to be decided in light of the then pending country guidance decision on national service and Eritrea. That country guidance case has now come out in the form of MST (national service - risk categories) Eritrea CG [2016] UKUT 443 (IAC) (MST).
The resumed hearing
4. In respect of the papers now before me I have a Respondent's bundle, the Appellant's original bundle before the First-tier Tribunal and a supplementary bundle from the Appellant dated 7 September 2016 and paginated 1 to 11.
5. Mr Fripp submitted firstly that whilst the Appellant may have been exempt on account of his epilepsy at some point in the past, given the arbitrary nature of medical exemptions as set out in MST, the fact that the Appellant had ceased to suffer from symptoms before he left and that he had indeed left the country illegally (as submitted by Mr Fripp), he would for that reason be at risk on return to Eritrea. Mr Fripp pointed out that he did not need to exclude other possibilities and that it was reasonably likely that the Appellant had been motivated to leave the country illegally because he knew that he was going to be called up for military service, given that the basis for the previous exemption had fallen away.
6. I asked Mr Fripp about an alternative scenario; namely that the Appellant had been exempt and had left Eritrea legally. Mr Fripp responded by submitting that in light of the evidence contained in the supplementary bundle the Appellant does not now have epilepsy (or at least does not suffer from any debilitating symptoms) and thus on return would not be subject to an exemption. Indeed, the Appellant would be seen as someone who had left the country to get out of doing the military service and would be viewed with sufficient hostility as to give rise to a risk of persecution or Article 3 treatment. Alternatively, the Appellant would simply be called up for national service with the consequence that he would be subject to treatment contrary to Articles 3 and/or 4.
7. Mr Tufan accepted that the Appellant's nationality was not now in dispute. However he submitted that it was the Appellant's own evidence that he had been exempted from national service by virtue of his medical condition. In respect of the medical evidence contained in the Appellant's supplementary bundle, this emanated from a GP and only covered a period of some eleven months. There was no specialist medical report before me. Mr Tufan submitted that it cannot be assumed that the Appellant left illegally given that other elements of his account had been deemed incredible by the First-tier Tribunal. On return Mr Tufan submitted that the Appellant would not be mistreated for any evasion in the past. He did however accept that if the Appellant were no longer exempted from national service he would be taken to undertake service, and this would engage Articles 3 and/or 4.
8. In reply Mr Fripp submitted that there was no evidence of any life-long exemption on medical grounds, the Appellant had stated in interview that he did not have any papers stating that he had an exemption at all, and that MST shows that there is no proper system in place regarding medical exemptions. He pointed out that the credibility findings were not all one way; whilst some aspects of the Appellant's account had been rejected, others had been accepted such as his nationality and some other circumstances pertaining to his time in Eritrea. It was the Appellant's evidence that he had been "cured" of his epilepsy prior to leaving.
9. I reserved my decision in this case.
My decision
10. In light of the evidence as a whole and having regard to the representative's submissions, I have concluded that this appeal should be allowed on the basis that the Appellant is a refugee and/or a person whose return would expose him to treatment contrary to Articles 3 and/or 4. My reasons for this are as follows.
11. First, whilst the picture in respect of exemptions from national service on medical grounds in Eritrea is unclear and indeed procedures are said to be arbitrary (see MST at paragraphs 291-296), I nonetheless find that the Appellant was suffering from epilepsy whilst in Eritrea at least up to a point, and based on his own evidence, he had obtained some form of an exemption on that basis (see questions 174 to 178 of the asylum interview).
12. Having said that, there is no evidence before me and nothing in MST to suggest that individuals are ever given a lifelong exemption from national service. It may be that there are cases in which a person has a significant and enduring mental and/or physical disability which would render any such service simply impossible for the duration of their lives. In my view this would be a rare occurrence given the attitude of the Eritrean government to the obligation of service. In this appeal, the Appellant was suffering from epilepsy, a condition that does not necessarily last a lifetime and whose symptoms can cease. It is reasonably likely therefore that the exemption obtained by the Appellant was of a temporary nature. I note his evidence that he had never been given any papers relating to an exemption and thus I would accept that he could have had no specific knowledge as to the nature or the conditions upon which the exemption had been granted by whoever made the relevant decision in the first place.
13. Second, the Appellant's evidence is that he was "cured" of his epilepsy by reason of the power of prayer. This occurred, he says, whilst still in Eritrea. Now of course I bear in mind that the issue of the Appellant's religion was disbelieved by the First-tier Judge and that finding has been preserved. Therefore I treat the evidence on this point with significant caution. I am, however, prepared to accept that prior to the point of departure in 2009 the Appellant had ceased to experience the symptoms of epilepsy to the extent that in his view the liability to be taken for national service was looming. I am prepared to accept Mr Fripp's submission that this provided a motive for the Appellant to leave the country prior to being taken into national service. I of course bear in mind that aspects of the Appellant's account have been deemed incredible. However as Mr Fripp fairly pointed out, there was not a wholesale disbelief of the Appellant's account: a major issue in the appeal had been that of nationality, and that was accepted by the First-tier Tribunal judge. In addition, certain other matters perhaps of less significance had been accepted in this regard and the Appellant's case is legitimately distinguishable from the situation in GM [2008] EWCA Civ 833, in which the individual's account had been almost entirely rejected.
14. Third, in light of the foregoing I find it is reasonably likely that the Appellant left Eritrea illegally in 2009 on the grounds that the basis of the previous exemption from national service had by the point of departure fallen away. It is reasonably likely that the Appellant would not have been granted an exit visa in view of the fact that:
(a) he was not experiencing debilitating symptoms,
(b) that there is absolutely no evidence to suggest he was seeking to go abroad for medical treatment,
(c) that he was otherwise a fit young man able to carry out national service even if that did not include a military component.
15. Fourth, on the basis of my finding that the Appellant left Eritrea illegally, he would in light of MST be at risk on return on that basis alone, and the appeal must succeed.
16. Fifth, there is an alternative scenario which I now turn to consider. On the basis that the Appellant had an exemption from national service as at the point of his departure from that country, and on an assumption that he in fact left the country legally at that time because of his exemption (a possibility that is frankly remote to say the least), I assess the issue of whether he would be at risk on return now. In so doing I consider first whether or not the Appellant is in fact currently suffering from epilepsy.
17. Mr Tufan has sought to cast doubt on the significance of the medical evidence before me (contained in the Appellant's supplementary bundle). With due respect, in my view his submission on this point is misconceived. It is true that there is no specialist report from, for example, a neurologist. It is also true that the GP who has written the letter at page 4 of the bundle had not himself met the Appellant. However, the author of the letter has clearly had regard to the GP records, as is stated in paragraph 1. The author goes on to say categorically that according to those records the Appellant has never (as far as the surgery is aware) suffered from epilepsy, and that he is currently not receiving any medication for epilepsy.
18. I turn to look at the notes and the GP records themselves contained at pages 5 to 8 of the bundle. There is nothing in these records to indicate that the Appellant is suffering from epilepsy or is taking any relevant medication. These records cover a period of some eleven months. It is reasonably likely I find that the GP records and the accompanying letter are a reliable source of evidence. It is reasonably likely that if in fact the Appellant were suffering from epilepsy this would be noted in the records and/or that he would be in receipt of relevant medication over the course of the eleven-month period. There is nothing to that effect in the evidence. It is true that people with epilepsy may not experience symptoms for periods of time, perhaps even considerable periods. However, applying the lower standard of proof the Appellant makes good his claim not to be suffering from this condition.
19. In light of this the Appellant would return to Eritrea as a person to whom the previous exemption on medical grounds (assuming there ever was one) would no longer apply. Upon return he would clearly have to explain himself as to where he has been since 2009, what he has been doing, and what his circumstances were in general. Of course, he could not be expected to lie, and it is quite obvious that he would be asked about his health either on the basis that the authorities were aware of a previous exemption and wanted to check whether this still was applicable or whether they were not aware of any previous exemption and simply wanted to know why he had not done national service. On any view, the fact that the Appellant does not suffer from epilepsy any longer would become apparent to the authorities (even if this meant detaining him for a period to see whether or not he in fact displayed any symptoms).
20. One of two things are reasonably likely to follow as a result of the foregoing. Either he is immediately detained as being in effect a person who has sought to evade national service and is persecuted and/or ill-treated contrary to Article 3 whilst in detention. Alternatively, he is sent straight for national service on the basis that he is now fit to undertake it, in which case Articles 3 and/or 4 are engaged (in light of MST). Any which way one views this there is a risk on return for this particular Appellant.
21. In light of the above, the appeal is allowed in the alternative scenario I have set out.

Notice of Decision
The decision of the First-tier Tribunal contains material errors of law and is set aside.
I determine that the Appellant's removal from this country would breach its obligations under the Refugee Convention and would also be unlawful under section 6 of the Human Rights Act 1998.
I therefore remake the decision by allowing the Appellant's appeal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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 their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 11 December 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date: 11 December 2016
Deputy Upper Tribunal Judge Norton-Taylor

Annex 1: the Error of Law decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10866/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 April 2016

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Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

G B
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Miss E Daykin, Counsel, instructed by Supreme Solicitors

DECISION AND REASONS

Introduction
1. For ease of reference I shall refer to the parties as they were before the First-tier Tribunal. Thus the Secretary of State is the Respondent and GB is once more the Appellant.
2. This is an appeal by the Respondent against the decision of First-tier Tribunal Judge O'Garro (the judge) promulgated on 13 January 2016 in which she allowed the Appellant's appeal on refugee and Article 3 grounds.

The judge's Decision
3. The judge found that the Appellant was in fact an Eritrean national, contrary to the assertions made by the Respondent in her Reasons for Refusal Letter. The judge rejected the Appellant's claim to have been a practising Pentecostal Christian, or that he was arrested and detained by the Eritrean authorities when still in that country.
4. Notwithstanding this, the judge went on to consider the issue of whether the Appellant left Eritrea illegally. She cites passages from background country information and then states at paragraph 60:
"The background evidence also considers certain categories of people would be particularly at risk of arbitrary detention, torture and ill-treatment, possible extrajudicial execution. Among those categories include [sic] national service conscripts and members of the armed forces deserting from the army and people evading and refusing conscription on account of their opinions or beliefs."
5. In paragraph 61 the judge goes on to say the following:
"Although I have no evidence that he was ever conscripted into the Eritrean army he appears to be a healthy young man and there is no evidence before me that the Appellant has actually been discharged from military service or was exempted from military service."
6. Having said this the judge goes on to find that on return the Appellant would be regarded as a person who had left Eritrea illegally and that there was a real risk of him being persecuted and/or ill-treated contrary to Article 3. She finishes by stating in paragraph 64 that her belief was that the country guidance decision in MO (illegal exit - risk on return) Eritrea CG [2011] UKUT 190 (IAC) supported her findings. The appeal was duly allowed.
The grounds of appeal and grant of permission
7. The Respondent's grounds are twofold. First, that the judge had failed to deal with the Appellant's own evidence that he had been exempted from military service on account of epilepsy. Reliance was placed upon the answer given to question 176 of the asylum interview. Second, it is said that the judge failed to have regard to the aspect of the Respondent's case that even if the Appellant was Eritrean he would not now be at risk on return in light of new country information, some of which was set out in the Reasons for Refusal Letter.
8. Permission to appeal was granted by Upper Tribunal Judge McGeachy on 12 February 2016.
The hearing before me
9. Mr Kotas relied on the grounds. He submitted that the judge was simply wrong in regard to the exemption issue given that the Appellant himself had given evidence that he was exempt. In view of this, there was the possibility that the Appellant had in fact left Eritrea legally and the judge should have dealt with this issue in a lot more detail than she did. In addition, Mr Kotas submitted that the Respondent had an alternative position as set out in the Reasons for Refusal Letter, namely that even if the Appellant was Eritrean and had left the country illegally he would not be at risk now in light of the new country information, in particular the Danish Fact Finding Report. The judge had failed to deal with this issue in any detail as well.
10. Miss Daykin submitted that it was open to the judge to follow MO rather than accepting the information contained in the Danish Report. In fairness to her, Miss Daykin did accept that the judge had failed to grapple with the competing country information. In respect of the exemption issue, Miss Daykin quite properly accepted the judge was factually wrong in respect of the absence of any evidence, given what the Appellant himself said in interview. She suggested that this error was not material, however, partly because any exemption would not have been from all national service and, secondly, that any exemption would not in any event have been permanent.
Decision on error of law
11. In my view there are material errors of law having regard to the judge's decision as a whole.
12. The judge was clearly wrong to have concluded that there was no evidence on the issue of exemption from military service given what the Appellant himself had said at questions 175 to 176 of the asylum interview.
13. The error is material. It is material because although the Appellant may have been healthy as at the date of the hearing before the judge, he left Eritrea back in 2009 and there was a possibility that he had been exempt from national service in all its forms at that particular time. It followed that there was a possibility that the Appellant had left the country legally.
14. In this regard the issue was a live one and required more detailed consideration than that accorded to it by the judge.
15. Although the rule 24 response from the Appellant has set out country information which in part suggests that any exemption on medical grounds would not be complete and /or would not be permanent, that evidence cannot be said to be conclusive, and the judge has simply failed to deal with the issue adequately.
16. The second error involves the competing country information and the applicability of the guidance in MO. The Respondent's case was based in part on the alternative submission that in any event the Appellant would not be at risk on return because of a change in the country situation (in particular the information contained in the Danish Fact Finding Report).
17. Whilst the judge has cited passages which do refer to that report, she has not grappled with the tension between this country information and the guidance set out in MO. This is not to say that the judge was bound to have departed from MO, but she was in my view bound to deal with the matter by way of proper consideration, findings and clear reasoning on the point. There is no such consideration on the face of her decision.
18. In light of the way in which the Respondent's case was put, the judge's second error is also material. I therefore set aside her decision.
Disposal
19. I am adjourning this appeal within the Upper Tribunal. I do so because I am aware that the Upper Tribunal has heard or is in the process of hearing new country guidance cases on Eritrea and these cases will deal expressly with the Danish Fact Finding Report and other relevant information which is material to the present appeal. It is sensible to await the outcome of these cases.
20. Both parties agreed with this course of action and I therefore issue appropriate directions below.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I adjourn the appeal with directions

Directions to the parties:
1. The appeal is adjourned pending the promulgation of the new country guidance cases in MST AA/07733/2015, TM AA/06369/2015, MYK AA/11206/2014, and AIA DA/00924/2014;
2. The parties shall liaise with the Upper Tribunal listings in order to fix a new date for the resumed hearing in due course;
3. The following findings of the First-tier Tribunal are preserved:
a) that the Appellant is an Eritrean national;
b) that the Appellant was not a practising Pentecostal Christian;
c) that the Appellant was not arrested and detained in Eritrea
4. The following issues are live:
a) whether the Appellant was exempt from national service at the time of his departure from Eritrea in 2009;
b) whether he left the country illegally;
c) risk on return in light of the new country guidance cases (or in default MO and the current country information)
5. Oral evidence from the Appellant on relevant matters will be permitted at the resumed hearing;
6. The Appellant is to file and serve on the Upper Tribunal and Respondent an updated witness statement and any further evidence relied upon no later than 10 working days before the resumed hearing;
7. Both parties are to comply with any further directions issued by the Upper Tribunal.

Directions to Listings at Field House
1. This appeal is adjourned for a resumed hearing on a date to be fixed;
2. The parties are to liaise with Listings when setting a new date;
3. There is a 2 hour time estimate for the resumed hearing;
4. An Amharic interpreter is required for the resumed hearing.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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 their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 25 April 2016
Deputy Upper Tribunal Judge Norton-Taylor