Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01931/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 4th April 2017
On 27th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

miss azewet tsegay
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Holmes, Counsel
For the Respondent: Miss Aboni, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant states she is a citizen of Eritrea born on 1st January 1997. The Appellant’s evidence is that she entered the UK illegally on a lorry on 2nd July 2015. Thereafter she claimed asylum. Her claim for asylum was based on a purported well-founded fear of persecution in Eritrea on the basis of her imputed political opinion. The Appellant’s application for asylum was refused by Notice of Refusal dated 7th October 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Tobin sitting at Stoke on Trent on 3rd June 2016. In a decision and reasons promulgated on 20th June 2016 the Appellant’s appeal was dismissed on all grounds.
3. On 4th July 2016 Grounds of Appeal were lodged to the Upper Tribunal. On 14th July 2016 First-tier Tribunal Judge Dineen granted permission to appeal. It was necessary to extrapolate from the grant of permission those grounds upon which permission to appeal was granted. There are two grounds. Firstly it is complained that the judge erred in not taking into account the risks to the Appellant of returning to Eritrea as a person of draft age whether or not she left the country legally. Judge Dineen noted that at paragraph 22 the First-tier Tribunal Judge having found no evidence of illegal exit stated “accordingly ... there was no risk on return”. In granting permission Judge Dineen considered that the judge appeared to have linked risk on return to illegality of exit and that that arguably constituted an error of law. Secondly, at ground 4 Judge Dineen found that it was arguable that the judge erred in law in not stating reasons for the finding that the Appellant was vague and evasive. None of the other grounds were found to constitute potential errors of law.
4. On 25th July 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The response effectively separates the Grounds of Appeal in the manner set out above. The relevant two paragraphs therein are paragraphs 5 and 6. Firstly, it is submitted that given the unchallenged finding that the Appellant left legally/did not leave illegally it follows that the judge did not have to make a finding on whether or not the Appellant was a draft evader and secondly, as for the finding that the Appellant was vague and evasive, the Rule 24 reply submits that it would be argued that the judge had the benefit of hearing the Appellant giving evidence at court.
5. It was on that basis that the appeal came before me to determine whether or not there was a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appeared by her instructed solicitor, Ms Haughian. The Secretary of State appeared by her Home Office Presenting Officer Mr Bates. Unusually in an appeal before the Upper Tribunal Mr Bates was also the Home Office Presenting Officer who appeared before the First-tier Tribunal. His attendance is not challenged by Ms Haughian and it is accepted that there is no conflict of interest in his reappearing in this matter in the Upper Tribunal.
The Current Case Law
6. Due to the very helpful concession made by Mr Bates understandably agreed by Ms Haughian I accepted that a careful analysis of the decision showed the First-tier Tribunal Judge had not addressed the issue as to whether the Appellant would be at risk as a draft evader and whether as a married woman she would be at risk of being drafted. That in itself constituted a material error of law. I was however not persuaded by the submission of Ms Haughian that the issue should go further than that and that there should be a rehearing of the matter and in such circumstances the correct approach was to preserve the credibility findings on other issues made, to retain the matter within the Upper Tribunal reserved to myself and to give directions for a rehearing of this matter which can include oral testimony limited to the issue upon which there is a material error of law.
7. I gave directions for the continuance of this matter having found that the decision of the First-tier Tribunal Judge contained a material error of law and set the decision aside. I recorded that the outstanding issue was whether or not the Appellant as a married woman would be at risk of being drafted for military/national service and for consideration of the Appellant’s position pursuant to the most recent country guidance authority of MST and Others. Save for that issue the credibility findings of the First-tier Tribunal Judge were preserved and the matter was set down for rehearing before me. It is on that basis that the matter is restored before me. The appellant appears now by his instructed Counsel Mr Holmes and the Secretary of State by her Home Office Presenting Officer, Miss Aboni. The Appellant has, through her legal representatives, served an up-to-date bundle of documents including witness statements of herself and of her cousin, Dejen Guash. I have considered all documents that were placed before me.
8. It was agreed between the legal representatives that the hearing before the First-tier Tribunal was before the decision in MST and Others (National Service – risk categories) (CG) [2016] UKUT 443. The current guidance is consequently to be found in the head note to that authority. That reads:

Country guidance

1. Although reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059 and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 00190 (IAC), this case replaces that with the following:

2. The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service.

3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men.

4. The categories of lawful exit have not significantly changed since MO and are likely to be as follows:

(i) Men aged over 54

(ii) Women aged over 47

(iii) Children aged under five (with some scope for adolescents in family reunification cases

(iv) People exempt from national service on medical grounds

(v) People travelling abroad for medical treatment

(vi) People travelling abroad for studies or for a conference

(vii) Business and sportsmen

(viii) Former freedom fighters (Tegadelti) and their family members

(ix) Authority representatives in leading positions and their family members

5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.

6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return.

7. Notwithstanding that the round-ups (giffas) of suspected evaders/deserters, the “shoot to kill” policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.

(i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.

(ii) Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii).

(iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they will be perceived on return as draft evaders and deserters, namely:

(1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad);

(2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is

(3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.
Evidence
9. The Appellant attends and confirms and adopts her witness statement of 16th March 2017 as her evidence-in-chief. This is supplemental to all other evidence that the Appellant has previously served.
10. She is cross-examined by Miss Aboni. Miss Aboni notes that at paragraph 20 and 21 of her witness statements the Appellant accepts that she originally fabricated her account about detention and totally contradicted herself in her interview but contends that she did that because she was scared. The Appellant acknowledged that she maintained those lies at the appeal hearing in 2016 at Stoke. Miss Aboni puts it to her that bearing in mind this admission and that it was continued throughout the hearing before the First-tier Tribunal Judge she enquires as to why both the Secretary of State or the Tribunal should accept anything that the Appellant says. In response the Appellant states that she was scared when giving her original statements and evidence that she would be returned to Eritrea.
11. Mr Dejen Guash attends and gives evidence on behalf of the Appellant. He confirms and adopts his witness statement of 16th May 2017. His evidence purely relates to the leaving of Eritrea and travelling with the Appellant to the UK. That evidence is not challenged by the Secretary of State and Miss Aboni has no cross-examination.
Submissions/Discussions
12. Miss Aboni relies on the Notice of Refusal and the adverse findings of credibility made by Judge Tobin in 2016. She reminds me that the First-tier Tribunal Judge at paragraph 21 did not accept that the Appellant had exited Eritrea illegally. She points out that the Appellant was found not to be credible and that she had maintained a fraudulent account before the First-tier Tribunal as well as the interviewing Home Office representative. She reminds me that the Appellant was found not to be credible and that the Appellant has now accepted and adopted in a witness statement that she fabricated key evidence. She submits that this shows that the Appellant is perfectly capable of lying and that she has not provided any satisfactory evidence to corroborate her account. She submits that it is not possible to rely on anything the Appellant states and that her current witness statement contradicts her previous evidence. She reminds me that the appellant was previously found not to have left Eritrea illegally and that she was found not to have been a draft evader.
13. She relies on paragraph 253 and 254 of MST which she reminds me states that prior to the National Service Proclamation of 1995 married women and mothers were exempt from national service but that the 1995 proclamation removed those exemptions for married women and mothers and that exemption became a matter for the discretion of recruiting officers. She further points out that Eritrean national service can involve civilian service which can include jobs in the civil service and that the great majority of conscripts were engaged in civilian national service rather than military national service. She takes me to the exemptions paragraph at paragraph 291 regarding the exemptions from national service and of the practice of tolerance disclosed at paragraphs 292 and the exemptions based on contacts and/or bribes described at paragraph 294. She submits that it is possible that any exemption granted to the Appellant would be as a married woman therefore she would not be considered a draft evader on return. She further relies at paragraph 301 of MST in support of this contention.
14. She submits that the evidence of her cousin adds little weight to her claim and that his claim was based on totally different circumstances and he cannot give any first hand evidence of the Appellant’s purported alleged problems in Eritrea as he left in 2010. Overall she asked me to find that the Appellant is not credible, that she has not left Eritrea illegally and that she would not be considered a draft evader or a deserter. She asked me to dismiss the appeal.
15. In response Mr Holmes starts with the objective factors and takes me to the head note of MST in particular paragraph 5 and to the skills profile as to whether or not legal exit on an Appellant’s behalf was feasible. He submits the Appellant discusses this at paragraph 22 of her witness statement pointing out as stated therein that there is nothing in her account to suggest the authorities would allow her to leave Eritrea illegally. He reminds me she is now aged 20 (18 at entry into the UK) and therefore within the age bracket liable for military service. He takes me to paragraph 14 of her original interview pointing out that she has no special skills that would qualify her for lawful exit. He acknowledges that she performed badly at interview.
16. He then turns to look at the objective factors which he contends are in her favour. He starts by taking me to paragraph 10 of the head note of MST namely:
“That accordingly a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of and/or approaching draft age, is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm.”
He submits that she falls within that category and asked me to find that the Appellant left Eritrea illegally and contends that the First-tier Tribunal Judge did not properly assess the evidence.
17. He then looks at the position with regard to married women starting with the unwritten policy that exemption from national service is usually granted to women and girls who are married, pregnant or have children albeit that it is an unwritten policy and appears to be arbitrarily implemented. He relies on the Amnesty International Report of 1st December 2015. He too, (like Miss Aboni) refers me to paragraph 253 of MST pointing out that the change was brought in, in the written policy above and says that that is important because MST draws no conclusions as to whether a married woman could get out of military service in that way.
18. He further refers me to paragraph 109 of MST – 3.1.6 with regard to the demobilisation of women over 27 pointing out that the Appellant would be unable to bring herself within that category and to the section relating to the arrest of family members of deserters to be found in the Amnesty International Report and the risk to family members referred to at paragraph 279 of MST. He further reminds me that as a matter of law it is not impossible for a genuine case to be supplemented by a lie and he asked me to consider the reasons that she has given for lying as set out within her witness statement and to give weight to the honesty in which she has now approached the matter. So far as the Appellant’s cousin is concerned he submits that his evidence does add something as it gives an account of how they actually met and gives weight to the manner in which she left which he contends was an illegal exit. He asked me to allow the appeal.
Findings
19. I start by reminding myself that the issue is whether or not the Appellant would be considered on return to Eritrea to be a draft evader. I am satisfied for all the reasons set out by the First-tier Tribunal Judge that she would not. In fact that position is amplified by the admission that the Appellant now makes, candid as it is, that her initial account contained lies and that her account was fabricated particularly with regard to detention. The Appellant was found not to be credible. Mr Holmes asked me to give weight to the fact that she has now told the truth. I am prepared to do that but this does not negate the lack of credibility or perhaps more importantly does it do anything to assist the Appellant on the submissions made on the sole issue upon which this matter is being reheard.
20. It is quite simply wrong of Mr Holmes to submit that the First-tier Tribunal Judge did not look properly at this case. Judge Tobin did and has given reasons. Those findings save for the discrete issue remain and there is nothing that has been produced to me or shown on an analysis of MST that would show that the Appellant is a draft evader. I have considered the evidence of her cousin and whilst it may have some factual accuracy it does not assist in her case. The Appellant has not provided any further corroborative evidence and the constant reference to paragraph 253 of MST gives credence to the concept that as a married woman and mother she may be exempt from national service. If that were to be the case then the Appellant would of course not be considered a draft evader. Given the complete lack of any credible findings whatsoever in this mater which are in fact merely compounded by the admission that she lied and had given a fraudulent account there is no evidence whatsoever to show that she would be considered a draft evader and in reaching that decision if have considered all the evidence that has been produced to me today both subjective and objective and I have given due consideration to the fact, quite properly put to me by Mr Holmes, that genuine cases can be supplemented by a lie. For all the above reasons the Appellant’s appeal is dismissed.

Notice of Decision

The appellant’s appeal is dismissed on all grounds.

No anonymity direction is made.

Signed Date 26th April 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 26th April 2017

Deputy Upper Tribunal Judge D N Harris