Tribunal decisions

The decision

IAC-TH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11778/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 9th January 2017
On 20th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Tirhas [S]
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Marcus of Counsel instructed by Bankfield Heath Solicitors
For the Respondent: Mrs Pettersen, HOPO

DECISION AND REASONS

1. This is the appellant's appeal against the decision of Judge Dearden made following a hearing at Bradford on 11th February 2015.
Background
2. The appellant is a citizen of Eritrea born on 3rd May 1987. She arrived in the UK on 22nd August 2014 and claimed asylum on 2nd September 2014. She was refused by letter on 15th December 2014 and her appeal against that refusal was dismissed on 18th February 2015.
3. She sought permission to appeal on a number of different grounds and permission was granted by Judge Macdonald on 23rd March 2015.
4. On 16th June 2015 the matter came before me and I set aside the decision on the grounds that the judge had erred in law in failing to resolve a central issue in the appeal and had failed to take into account all of the relevant evidence. The matter was remitted to the First-tier Tribunal.
5. For reasons which are entirely unclear that did not occur, and on 4th November 2016 Upper Tribunal Judge Jordan set down the hearing before the Upper Tribunal at Bradford.
6. Prior to the hearing, the appellant submitted a skeleton argument to the effect that the appeal ought to be allowed in accordance with the country guidance of MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 443.
7. Mrs Pettersen, for the respondent, accepted the appellant's case. She agreed that the issue of illegal exit was not the decisive factor since the appellant was at risk on return to Eritrea because she would be conscripted and she did not want to go into the military.
8. She therefore succeeded, both on Article 3 grounds and on the basis that she would be at risk on persecution as a consequence of her imputed political opinion, being of draft age.
9. Mrs Pettersen acknowledged that the question of whether married women are conscripted had, as she put it, become somewhat muddled before Judge Dearden, and there was in fact no basis to conclude that the appellant would be able to escape conscription on the basis that she might have married. The country guidance does not support the finding that married women are systematically either released from military service or not called up at all (paragraph 321 of MST and Others).
Findings and Conclusions
10. MST and Others held that the age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women. The Eritrean system of military/national service remains indefinite. Even if the appellant left Eritrea lawfully, at the age of 5, she remained outside the country and did not return despite being eligible for military service. She is therefore likely to be perceived as a draft evader if returned to Eritrea (paragraph 366 of MST and Others).
11. Accordingly, she has established a risk of persecution on return.

Notice of Decision
12. The original judge erred in law. His decision has been set aside. It is remade as follows. The appellant's appeal is allowed on refugee grounds and on Article 3 grounds.
13. No anonymity direction is made.

Signed Date 19 January 2017

Deputy Upper Tribunal Judge Taylor