Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: JR-2025-LON-000125

Field House,
Breams Buildings
London, EC4A 1WR

12 February 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

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Between

THE KING
on the application of
AX
(Anonymity order in force)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Sandra Akinbolu
(instructed by Duncan Lewis Solicitors), for the applicant

Karen Reid, counsel
(instructed by the Government Legal Department) for the respondent

Hearing date: 12 August 2025

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J U D G M E N T
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1. The applicant is a national of Eritrea. He challenges (i) the respondent’s refusal on 15 January 2025 to treat his further submissions as constituting a fresh claim for international protection and (ii), together, the decision on 3 December 2024 to remove him to Eritrea and to enforce removal on 16 January 2025. There is an anonymity direction in force that should be continued; the risk of serious harm if the applicant is identified, and maintaining the integrity of the UK asylum system, justifies derogation from the principle of open justice.
The previous claims
2. The applicant first entered the United Kingdom in January 2009 and claimed asylum, asserting a fear of persecution in Eritrea arising from having deserted from the army and illegally exited the country. That claim was refused in June 2009 and his appeal dismissed in August 2009, Judge Hanson finding that the applicant had not established that he left Eritrea illegally such as to be at risk on return:
39. Although the appellant has not substantiated his claim because not all the conditions of paragraph 339L have been met, I am satisfied that some parts of his claim are true, limited to his nationality, his date of birth, and journey to the UK through Italy and France. I move on to consider what risks the appellant may face on return in light of my findings.
41. The person needs to show that they are at risk for the reasons clearly set out in the country guidance cases, the main one of which is MA (Draft Evaders -illegal departures- risk) Eritrea CG [ 2007] UKIAT 00059.
42. It is clear that the appellant lied to the Secretary of State and gave a false account in an attempt to secure refugee status in the United Kingdom. I make a finding of fact that he is not a credible witness and the extent of his deliberate deception was only uncovered as a result of a fingerprint match with fingerprints taken in Italy; after which the appellant gave another version of events relating to his journey to the United Kingdom.
43. Although the appellant is an Eritrea National and of draft age he has adduced no corroborative evidence to substantiate his claim to have left illegally and there is clearly evidence in the reasons for refusal letter, based upon the objective material, to show that individuals can leave the country legally which will not place them at risk upon return. The case of MA has made it clear that failed asylum seekers per se are not at risk and that it is the other elements identified within the decision that place them at risk.
44. The Court of Appeal when considering Eritrea upheld the Tribunal view that just because an individual may be an Eritrean national of draft age it could not be assumed they had left illegally, and that the burden of proof remains upon such an appellant to prove that what they are alleging is true, namely that they left illegally. This appellant left before the absolute ban referred to in the objective material came into force and in light of his early dishonesty and lack of supportive evidence I make a finding of fact that he has failed to discharge the burden of proof upon him to the required standard to show that he left Eritrea illegally.
3. Over the following years, the applicant made a series of further submissions, each of which was refused by the respondent under paragraph 353 of the Immigration Rules as constituting a fresh claim, adopting the adverse findings made by Judge Hanson.
4. In 2018, following the country guidance given in MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC), the respondent accepted further submissions as being a fresh claim, carrying a right of appeal, but refused it. The applicant’s appeal to the FtT against that decision was dismissed by Judge Woolley in February 2019. He observed that the previous adverse findings of Judge Hanson formed the starting point, and that the applicant had not adduced any evidence addressing the inconsistencies underlying Judge Hanson’s decision. After dealing with some new documentary evidence, that he afforded little weight, he held as follows:
39. Apart from this payment voucher there is very little, if any, evidence before me that was not also considered by Judge Hanson. He says that the Home Office is wrong to say that he left before the blanket ban on visas was in place, but this is a matter of country information and I find that the position changed in August/September 2008 and that he left before that date (as the Eurodac result shows). He maintains that he left Eritrea illegally. He repeats the assertion that he attended up to Grade 8 in school when Judge Hanson has already found that this is inconsistent with the country information. He can provide no proof he left illegally.
40. In his closing submissions Mr Duncan sought to draw a distinction between (a) the appellant’s failure to satisfy the tribunal evidentially that he had left illegally and (b) a positive finding that he left legally. He pointed out that Judge Hanson had made no finding that the appellant had left legally. It however remains the case under MST, as it was under MA that the burden is upon an individual to prove that what they allege is true, and what they must satisfy the decision maker of is that they left illegally. Judge Hanson made no finding as to whether the appellant had left legally because the Country Guidance did not require him to do so. I am in exactly the same position (save for the limited exception under Headnote 11 which I discuss below). The test in MST, in the case of a person whose asylum claim has not been found credible, is that if he is able to satisfy a decision-maker (i) that he left illegally, and (ii) that he is of draft age, he is likely to be perceived on return as a draft evader and as a result will face a real risk of persecution.
41. Taking the earlier decision as my starting point I find that the appellant has produced no further credible evidence before me to make me depart from the findings of Judge Hanson. I have rejected as of little weight the Fine Payment voucher produced after the decision. I find that the objections outlined by Judge Hanson, including the failure to claim asylum in Italy and France (I bear in mind that in 2009 Italy was not yet regarded by the European Court as having a dysfunctional asylum system), mean that the appellant must still be regarded as a witness who is not credible. These findings are enhanced by his attempt post-decision to introduce new evidence (the fine payment voucher) that cannot be regarded as reliable. I find that he cannot be regarded as a credible witness and that he has engaged in deception. I find that he cannot be assumed to have left illegally.
[…]
44. I have found the appellant’s account to be wholly lacking in credibility and he cannot be assumed to have left Eritrea illegally. Failed asylum seekers are not at risk for that reason alone. He left before August/September 2008 when exit visas were still being issued. As he is not a credible witness I cannot accept his account that he was of limited education or that his family were poor. No inferences can be drawn as to whether legal exit was not possible. He was aged 18 in 2008 and therefore of an age when a student visa could have been given. It is feasible that he could have qualified for lawful exit. It follows from MST that on return he would not be perceived as someone who had exited illegally or as a draft evader or deserter and would not be at risk of return.
5. Further submissions made in December 2021, including claims based on political activity in the UK and membership of the Eritrean People’s Democratic Party, were also refused, with the Respondent concluding that the Applicant’s involvement was minimal and recent, and did not establish a risk on return.
The decisions now challenged
6. On 3 December 2024, the applicant was encountered during an enforcement visit, detained, and served with notice that he would be removed on a date falling on or after 16 January 2025. During this time the applicant had several consultations with duty solicitors but claims to have been unable to secure effective representation until he instructed Duncan Lewis solicitors on 14 January 2025. On his behalf, they sent a pre-action protocol letter to the respondent, raising concerns about the risks on return to Eritrea, the applicant’s political activities in the UK (including political connections with the Brigade N’Hamedu), and requesting further time to prepare submissions and obtain documentation. The respondent declined to defer removal and refused to treat the further submissions as a fresh claim, citing a lack of sufficiently detailed evidence and referring to the FtT’s previous adverse credibility findings.
7. An urgent application to the Administrative Court for an injunction against removal was made out-of-hours on the evening of 15 January 2025 and refused by Collins Rice J. The applicant was accordingly removed to Eritrea on 16 January 2025, this application for judicial review being made on the following day.
8. The grounds now argued, as later developed in argument, can be fairly summarised as follows:
a. Ground 1: Access to Legal Advice and Procedural Fairness
The applicant contends that the respondent acted unlawfully and in breach of her own “Enforced removals: notice periods” Guidance (13 May 2024) by failing to afford sufficient access to legal advice prior to removal. It is argued that, although the applicant was notified of removal and had several brief consultations under the Detained Duty Advice Scheme (DDAS), proper instructions were never taken nor effective substantive representation provided until Duncan Lewis Solicitors were instructed on 14 January 2025. They requested an extension of time to obtain documentation and prepare submissions, citing difficulties in securing legal aid and accessing previous files, but this was refused. The applicant argues that the respondent’s reliance on the mere availability of appointments and the fact of previous consultations does not discharge her duty to ensure effective access to legal advice, as described in R (Howard League for Penal Reform) v The Lord Chancellor [2017] EWCA Civ 244. The applicant maintains that removal prior to obtaining adequate legal advice constituted a material error of law and a breach of the right to access justice.
b. Ground 2: Application of the Fresh Claims Test (Paragraph 353) and Anxious Scrutiny
The applicant submits that the respondent failed to apply the correct legal test under paragraph 353 of the Immigration Rules to the further submissions made in January 2025, particularly those relating to sur place political activities and association with Brigade N’Hamedu. The applicant argues that, although pressed for time, clear instructions and supporting evidence including an expert report from Dr David Seddon were provided, indicating a real risk on return. The respondent’s refusal, based on a perceived lack of detail, is said to be inconsistent with the “modest” threshold for a fresh claim as articulated in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and the requirement for “anxious scrutiny”. The applicant contends that the respondent failed to properly consider corroborating evidence, such as supporting letters and the expert report, and summarily rejected aspects of the claim that should properly have been taken as credibility points upon which the applicant could be successful before a FtT Judge.
c. Ground 3: Risk on Return of breach of Articles 3 and 4 ECHR
The applicant’s third ground is that removal to Eritrea exposed him to a real risk of treatment contrary to Articles 3 and 4 of the European Convention on Human Rights, irrespective of whether they left Eritrea legally or illegally. The applicant relies on country guidance in MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443 (IAC), the respondent’s own Country Policy and Information Note (CPIN), and recent background evidence (including Human Rights Watch and Freedom House reports) to argue that, as a person of draft age who has been absent for many years, they would be required to undertake military service on return, which is associated with forced labour and inhuman or degrading treatment. The applicant submits that the respondent failed to properly engage with updated country information and the expert report, and that the presumption that the applicant would avoid such risks is irrational given the current situation in Eritrea, especially in light of the conflict in Tigray and ongoing human rights concerns.
9. Again as subsequently developed in argument, the respondent’s case on each of those grounds can be summarised as follows:
a. Ground 1: Access to Legal Advice and Procedural Fairness
The respondent submits that the applicant was afforded a reasonable and lawful opportunity to access legal advice prior to removal, in accordance with the “Enforced removals: notice periods” Guidance (13 May 2024). The applicant was notified of removal on 31 December 2024 and given 15 clear days before departure, significantly exceeding the minimum 5 working days required by policy. During this period, the applicant had access to the Detained Duty Advice Scheme (DDAS), booking and attending multiple appointments with different firms, and was provided with information about how to obtain legal representation by the Detention Engagement Team (DET). The respondent argues that no technical or practical barriers were reported, and the applicant did not raise any difficulties in accessing legal advice until the last minute. The respondent maintains that the decision not to defer removal was reasonable, and that the applicant’s assertion of procedural unfairness is not supported by the facts.
b. Ground 2: Application of the Fresh Claims Test (Paragraph 353) and Anxious Scrutiny
The respondent contends that the decisions of 15 January 2025 correctly applied the legal test, and that the further submissions regarding sur place activities and association with Brigade N’Hamedu were vague, lacking specificity as to the nature and extent of involvement, and unsupported by credible evidence. The respondent’s decision letters gave full and lawful consideration to the material provided, including the expert report of Dr David Seddon, but found the risk assessment to be speculative and not substantiated by the applicant’s own witness statement or corroborating evidence. The respondent argues that anxious scrutiny was applied, with sustainable reasons given for rejecting the submissions, and that the applicant’s credibility had been previously found wanting by two First-tier Tribunal judges. The respondent submits that the threshold for a fresh claim was not met and that the decision was rational and lawful.
c. Ground 3: Articles 3 and 4 ECHR, risk on return
The respondent’s position is that the applicant’s removal did not place him at real risk of treatment contrary to Articles 3 and 4 of the European Convention on Human Rights. The respondent relies on the findings of Judge Wooley in the First-tier Tribunal determination of 11 February 2019, which concluded that the applicant had not demonstrated an illegal exit from Eritrea and would not fall into the risk categories identified in MST. The respondent maintains that the applicant’s further submissions did not provide any new evidence to justify departing from these findings, and that the risk assessment was properly considered in line with the Country Policy and Information Note (CPIN) and relevant case law. The respondent submits that the applicant’s arguments are speculative and unsupported by the material before the decision-maker, and that the removal was lawful and consistent with the United Kingdom’s international obligations.
Ground 1
Principles
10. The requirement of para 353 engaged under Ground 2 is whether the content of the applicant’s further submissions, taken together with the previously considered material, creates a realistic prospect of success. Ms Akinbolu argues, and I accept, that if the applicant was unfairly constrained in putting forward sufficient material to constitute a fresh claim by, for example, being unlawfully prevented from accessing legal advice and support in preparing it, then this may in turn vitiate the decision made on it. This forms the context in which to consider Ground 1.
11. In R (Howard League for Penal Reform & Anor) v The Lord Chancellor [2017] EWCA Civ 244, Beatson LJ held :
42. Bearing in mind what fairness is likely to require where the issue is factually or legally complex or the consequences for the individual are serious, the common law rules of fairness will generally entitle a person to have access to legal advice and to be able to communicate confidentially with a legal adviser as part of the fundamental right of access to justice and to the courts: see R v Secretary of State for the Home Department, ex p Anderson [1984] QB 778, at 790; R (Daly) v Secretary of State for Home Department [2001] UKHL 26, [2001] 2 AC 532 at [5] and [30] (Lord Bingham and Lord Cooke of Thorndon); and R (Medical Justice) v Ministry of Justice [2010] EWHC 1925 (Admin) at [43] – [45] (Silber J). The importance of legal advice was referred to in R (Gudanaviciene and others) v Director of Legal Aid Casework and Lord Chancellor [2014] EWCA Civ 1622, [2015] 1 WLR 2247 which we consider below. In its discussion of the potential of an inquisitorial approach by the decision-making body to ensure that a person has effective access to justice, the court, in a judgment handed down by Lord Dyson, stated at [185], that “in some circumstances, legal advice to the litigant in person may be more important than legal representation at the hearing for ensuring effective access to justice”.
12. I should briefly deal with Ms Reid’s reliance upon R (AAA) v Secretary of State for the Home Department [2022] EWHC 3230 (Admin) at [405]-[407] as containing a relevant finding that there was no procedural unfairness in circumstances where a detainee was informed of the availability of the duty solicitor advice scheme, even if they did not subsequently receive advice. Considering the relevant passages for myself, I cannot see that the Divisional Court made any finding or statement of principle that extends beyond the discrete issue of whether a seven day period was too short for asylum claimants to prepare effective representations in response to a Notice of Intent to remove them to Rwanda. The subsequent focus on the issue in the Court of Appeal, in R (AAA) v Secretary of State for the Home Department [2023] EWCA Civ 745 was also upon the overall fairness of a seven day default time limit, and that issue does not arise in the present case. The applicant’s solicitors requested an extension of time in the manner discussed by Underhill LJ at [441], the refusal of which is now challenged; the question for the Tribunal is whether or not the circumstances lawfully permitted the respondent to do so.
Consideration
13. The following chronology is relevant. The applicant was detained on 3 December 2024 and served with a Notice of Liability to removal that began as follows: (emphasis in original)
This notice explains that you are liable to be removed from the United Kingdom (UK).
You do not have permission to enter or stay in the UK.
What this means for you
You do not have a right of appeal against this decision.
The reasons for this decision are set out in the ‘reasons for decision’ section.
Information about help and advice on returning home is in the ‘next steps’ section.
If you want to seek legal advice you must do so now.
14. Notwithstanding the somewhat scattergun use of emphasis, I agree that this draws the applicant’s attention to the fact that he was liable to be removed, and that he should seek legal advice promptly if he wished to do so. This applicant was familiar with the purpose of such legal advice due to his numerous previous claims.
15. On 9 December 2024 the applicant had a telephone consultation with a solicitor under the Detained Duty Advice Scheme; it is accepted that this was likely the first appointment available to him. The outcome of that consultation is unknown. On 11 December the applicant sought help from the Detention Engagement Team in obtaining legal representation, and was directed to the duty scheme. On 16 December 2024 he subsequently had a further consultation with a different firm than before.
16. On 31 December the respondent served a Notice of Intention on the applicant, which included the following:
Time to seek legal advice
You will not be removed from the UK before 16 January 2025. This will allow you time to seek legal advice. This time Period is your notice period. It will end on your departure date.
17. The applicant is recorded as having telephone conversations with representatives on 8, 10 and 14 January. On 8 January he also apparently told a member of staff that the lawyer he had spoken to was unwilling to represent him unless he could provide more evidence in support of his protection claim; however, this does not appear to be corroborated by any records and I afford the point no weight in my assessment.
18. On 14 January that Duncan Lewis sent a pre-action protocol letter. This set out an outline of the applicant’s claim, being that he had a fear of persecution on political grounds due to his sur place support of Brigade N’Hamedu. It included a request for removal to be deferred, drawing attention to the firm only having been instructed that day. I note from the decision of Collins Rice J that the loss of the previous day was attributable to Duncan Lewis, but this is not material to my decision.
19. The factual picture that emerges from this chronology, and the evidence as a whole, does not support a conclusion that in this particular case the applicant was denied a meaningful opportunity to obtain legal advice. He had multiple points of contact with legal representatives, clear signposting to the duty scheme, and adequate notice of when any legal challenge to removal must be mounted. All that can be reliably said is that he was unable to secure a representative willing to advance the claim in the form now proposed. The respondent’s policy does not guarantee the securing of particular legal representation, nor does it require that every detained individual be provided with sustained or continuous advice from a single firm. Much less does it guarantee a representative willing to put forward a particular claim. Rather, the policy requires that there be a genuine opportunity to access effective legal advice and to take steps to challenge removal where appropriate. The wider concerns raised with the scheme’s ability to reliably provide such an effective opportunity for all detainees may, or may not, be well-founded, but I accept the respondent’s case that it was provided for this particular applicant. He was detained on 3 December 2024, informed immediately that he was liable to removal and should seek legal advice “now”, and made use of the Detained Duty Advice Scheme on several dates. No procedural irregularity is said to have affected the availability of those appointments; nor is there any evidence that the respondent frustrated or obstructed contact with lawyers.
20. While I accept that Duncan Lewis were instructed very late, and that they acted with appropriate diligence and urgency once instructed, the lateness of that instruction cannot properly be attributed to any failing on the part of the respondent. The applicant does not appear to have raised any concern about an inability to obtain legal advice in the critical period following detention such that would engage any duty on the part of the respondent. His previous solicitors’ inability to assist due to the absence of a legal aid contract is regrettable, but on the overall chronology cannot be said to have led to discrete unfairness or to raise the prospect that the firm would have mounted the present claim if able to work on a legal aid basis. The circumstances do not establish even a low degree of likelihood that receiving effective legal advice sooner would have led to deferral of removal. The respondent is not under a blanket obligation to defer removal whenever representation is secured close to the date of removal, or a new representative puts forward a claim that has not yet been considered.
21. I also accept that the respondent’s submission that she complied with the applicable policy. The applicant was afforded more than the minimum five working days of notice, and in fact received fifteen clear days between the Notice of Intention on 31 December and the scheduled removal on 16 January. He was repeatedly informed of the need to seek legal advice promptly. On the facts, it was open to the respondent to conclude that no justified or evidenced basis had been demonstrated for extending the notice period.
22. I therefore reject that the applicant was denied effective access to justice. While time was undoubtedly tight, and placed his newly‑instructed solicitors under considerable pressure, I do not find that the respondent acted unfairly or contrary to her policy in declining to defer removal. The standard required by the authorities set out above was met: the applicant had a genuine and practical opportunity to obtain legal advice.
23. None of the above is altered by my below assessment of the other grounds. In particular, I accept Ms Reid’s argument that the lack of detail as to sur place activity in the further submissions cannot be ascribed to the short timescale, and that such details could have readily been ascertained in the time available if the applicant was capable of giving them.
Ground 2
Principles
24. For further submissions to stand as a fresh claim, the refusal of which would engage a statutory right of appeal, the respondent must address the two limbs of para 353. The first, requiring that the new material has not previously been considered, is not in issue. The second limb requires the respondent to decide whether, taken together with the earlier material, it creates a realistic prospect of success before the FtT. It follows that the decision‑maker is required to engage with credibility issues only to the limited extent necessary to assess whether success before an FtT is realistically possible, not probable.
25. As observed in WM at [7], the rule itself only imposes a modest test, and its application must recognise that the FtT in turn does not require certainty before allowing an appeal on protection grounds. I was not addressed on whether the standard of proof now imposed by section 32(2) of Nationality and Borders Act 2022 is likely to alter the outcome of para 353 considerations in general, or in this particular case, and simply address the issue according to existing principles. The requirement for a para 353 decision to be quashed remains Wednesbury irrationality, albeit that rationality is measured whether the respondent has exercised anxious scrutiny: WM at [8]-[11], as restated in Robinson v Secretary of State for the Home Department [2019] UKSC 11 at [37].
26. Anxious scrutiny demands that respondent has confronted and evaluated the substance of the material and the appellant’s representations, has not misdirected herself on material country information or relevant legal principles, and has provided sufficient reasoning to demonstrate a rational grasp of the case advanced. Previous adverse credibility findings cannot be treated as conclusive, but instead as forming a starting point according to the well-established Devaseelan guidelines described in Secretary of State for the Home Department v BK (Afghanistan) [2019] EWCA Civ 1358 at [32]-[38].
27. It was held in ST v Secretary of State for Home Department [2012] EWHC 988 at [51] that a decision must take account of the “more detailed and rigorous decision-making process that an immigration judge will undertake compared to the often rudimentary process that the SSHD decision-maker is able to undertake”, including a hearing with oral evidence, more documentary evidence than was available to the decision-maker, and “the benefit of experienced representation and advocacy on behalf of the applicant which will be able to bring out an applicant's case in its most favourable light”. It may nonetheless be rationally open to a decision-maker to conclude that such possibilities to improve a case are insufficient to create a realistic prospect of success, for example as held in R. (NS) v Secretary of State for the Home Department [2015] EWCA Civ 1599 at [15].
Consideration
28. The material relied upon by the applicant, taken at its highest, did not overcome the substantial evidential deficits identified by the respondent, nor did it provide any basis on which a First‑tier Tribunal judge could realistically depart from the established adverse credibility findings made by Judges Hanson and Wooley. Those adverse findings were not marginal; they went to the core of the applicant’s credibility on matters integral to risk on return. Judge Hanson found the applicant to have given a deliberately false account and to have engaged in deception. Judge Wooley, reviewing the matter many years later, found no basis to depart from that conclusion, likewise describing the applicant’s account as “wholly lacking in credibility”. The respondent was accordingly entitled to scrutinise the new sur place claim with caution and ask herself not whether the new material could conceivably be true, but whether there was a realistic prospect of being accepted as such to the relevant standard by the FtT.
29. The respondent was entitled to answer that question in the negative. The applicant’s January 2025 representations contained very limited detail about the claimed association with Brigade N’Hamedu and lacked particulars about what the applicant had done, when, or in what capacity. His witness statement did not mention Brigade N’Hamedu at all, nor did a corroborating statement upon which he relied provide any meaningful detail of political activity.
30. Dr Seddon’s report does not assert that the applicant is known to Brigade N’Hamedu, nor that he has been seen at demonstrations, nor that his name is recognised by any relevant source. Rather, the report merely notes that if the applicant had been involved in activities with the group, and if those activities had been observed, then this might place him at risk. But the expert has no primary evidence that the applicant actually engaged in such activities. The risk opined by Dr Seddon was therefore premised entirely on the truthfulness of the applicant’s account, and the respondent was entitled to conclude on the material provided that there was no realistic prospect of an FtT Judge deciding that the applicant was a genuine political activist for Brigade N’Hamedu. I reject the applicant’s assertion that a lawful decision required the respondent to interview the applicant in order to supply the detail his representations lacked; the applicant had a fair opportunity to provide an account capable of belief if he had been able to do so, and the respondent was entitled to make her decision on the material with which she had actually been provided. I likewise consider that there was no sufficient prospect of the appellant’s case improving on appeal such as to vitiate the respondent’s decision.
Ground 3
31. Turning to Ground 3, I am satisfied that the respondent was rationally entitled to conclude that the applicant’s removal did not give rise to a real risk of treatment contrary to Articles 3 or 4 ECHR. This ground ultimately depends upon whether the applicant submitted any material new evidence capable of displacing the findings of Judge Wooley in 2019, who applied MST to find that the applicant had neither demonstrated an illegal exit nor shown that he would be perceived as a draft evader on return.
32. The respondent’s decisions demonstrate that both MST and the CPIN were expressly considered. She noted, correctly, that the guidance in MST does not place all returning Eritrean nationals at risk; rather, the risk categories are confined principally to (i) those who left illegally, and (ii) those who are perceived as draft evaders or deserters. Judge Wooley, having taken Judge Hanson’s earlier adverse credibility findings as his starting point, found that the applicant had not proven illegal exit, nor that he would be perceived as a draft evader. On the contrary, he left Eritrea at a time when exit visas were still sometimes issued, given his age he could feasibly have done so lawfully, and his assertion to the contrary was rejected on credibility grounds.
33. The further submissions did not present evidence capable of undermining that conclusion. None of the evidence materially differs from the evidence available to Judge Wooley. It reiterates the temporary nature of exemptions and the ongoing human rights concerns associated with national service, but does not alter the basic structure of the MST risk categories, and nor does it call into question the FtT’s findings regarding lawful exit upon which the respondent was entitled to rely. Dr Seddon’s report does not contradict Judge Wooley’s 2019 conclusion that the applicant did not fall within the risk categories. It does not purport to challenge the finding that the applicant likely exited lawfully; nor does it present evidence that on return, having been outside Eritrea for many years, he would automatically be recalled to service in conditions contrary to Articles 3 and 4 regardless of his exit history. In the absence of such evidence, the respondent was entitled to rely on the FtT’s findings and conclude that the applicant remained outside the risk categories. Risk arising from the claimed sur place activity is addressed under Ground 2 above, and for the same reasons does not disclose any risk on return.
Conclusion
34. The application for judicial review is dismissed on all grounds.
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