Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02493/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 14th October 2016
On 8th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Misghena [T]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Neville (Counsel)
For the Respondent: Ms H Aboni (HOPO)

DECISION AND REASONS
1. The Appellant is a male, a citizen of Eritrea, and was born on 10th November 1977. He appealed to the First-tier Tribunal against the decision of the Respondent dated 26th October 2015 refusing his claim for asylum and humanitarian protection on the basis that the United Kingdom's obligations under the Refugee Convention and the European Convention on Human Rights were not engaged.
2. The Appellant's appeal was heard by First-tier Tribunal Judge Broe at Birmingham Sheldon Court on 14th June 2016 and promulgated on 27th June 2016. In paragraph 27 of the determination, the judge held in respect of the Appellant that, "I do not accept that he left Eritrea illegally or that he is evading national service. The burden of proving that, albeit a low one is on him and it has not been discharged" (paragraph 27).
3. Both Mr Neville and Ms Aboni, appearing as Senior Home Office Presenting Officer, at the hearing before me on 14th October 2016, accepted that the Respondent in the refusal letter had already conceded both that the Appellant had left Eritrea illegally and that he had evaded national service (see paragraphs 46 to 47 of the refusal letter).
4. The judge had then gone on to rule that,
"The question of illegal departures from Eritrea was considered in MO (Illegal exit - risk on return) Eritrea CG [2011] UKUT 00190 (IAC) and it was found that the position adopted in MA, which was that a person of or approaching draft age who left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, was reconfirmed." (Paragraph 28)
5. At the hearing before me on 14th October 2016, Mr Neville, appearing on behalf of the Appellant, made two basic submissions. First, that before Judge Broe, the Presenting Officer, appearing on behalf of the Respondent, "said that he relied on the reasons for refusal letter save that he invited me to consider whether the Respondent's concession about illegal exit was 'fair'" (paragraph 23).
6. Mr Neville submitted that it was not open to a Presenting Officer to go behind a refusal letter, without making an application under Rule 24 in advance of the hearing, so that, if necessary, a supplemental refusal letter could be sent out by the Respondent amending the earlier refusal letter on a point, where it had been conceded that the Appellant had both left Eritrea illegally, and had been a draft evader.
7. Second, having applied the country guidance case of MO [2011] UKUT 00190, the judge then went on to curiously state that, "I am not persuaded that the Appellant comes within a risk category. I do not find it 'very likely' that he would be perceived as having left illegally" (paragraph 28). This, submitted Mr Neville, had reversed the position in the country guidance case because all that the Appellant had to show was that there was a reasonable likelihood that he would be perceived as having left illegally, and not whether it was "very likely". That is not what the country guidance case had established.
8. Mr Neville, for the sake of completeness, also drew my attention to the recent case of MST (National service - risk categories) Eritrea CG [2016] UKUT 00443 which, however, Mr Neville was careful to point out, had only just been withdrawn from the Tribunal website, and from Bailii, even though it had previously been sent out, and this reconfirmed the country guidance given in MO [2011] UKUT 00190.
9. For her part, Ms Aboni relied upon the Respondent's Rule 24 response, but added that she would have to agree with Mr Neville on both of his basic submissions that he had noted. The refusal letter had conceded two very important aspects of the claim, and if that concession was to be challenged, there had to be a Rule 24 application. She also accepted that the judge gave no reasons for why the Appellant was within the relevant risk category given that it had been found that the Appellant had left Eritrea illegally and had evaded national service by the Respondent in the refusal letter.
My Consideration of the Appeal
10. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows.
11. First, it is clear that the refusal letter had accepted that the Appellant left Eritrea illegally and had evaded national service.
12. Second, if the Home Office Presenting Officer at the hearing before Judge Broe wished to go behind that concession, there had to be a proper application in advance of the hearing, and not for an advocate to simply suggest that such a concession was not fair.
13. Third, the judge was accordingly wrong to have ruled that, "the burden of proving that, albeit a low one is on him and it has not been discharged" (paragraph 27), whereas plainly, on the basis of what the Home Office had already determined at paragraphs 46 and 47, the Appellant had discharged this burden of proof.
14. Finally, the judge also concluded that, "I am not persuaded that the Appellant comes within a risk category. I do not find it 'very likely' that he would be perceived as having left illegally" (paragraph 28), when the case of MO [2011] UKUT 00190 had established that a person who has evaded draft service and has left illegally is reasonably likely to be regarded with serious hostility on return, in circumstances where the risk categories were already quite narrow.
15. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am remaking this decision by allowing the appeal of the Appellant on the basis of MO [2011] UKUT 00190 in that the Appellant does fit in the risk categories because he has evaded military service and then has subsequently left the country illegally and is bound, on a reasonable likelihood test, to face the risk of ill-treatment and persecution in Eritrea.

Notice of Decision
16. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.
17. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 5th November 2016