Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02610/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision and Reasons Promulgated
on 12 October 2016
on 13 October 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

F G
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Reza of Sultan Lloyd Solicitors.
For the Respondent: Mr C Bates Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Boylan-Kemp promulgated on the 13 July 2016 in which the Judge dismissed the appeal under the Refugee Convention but allowed it on humanitarian protection and human right grounds.
2. The appellant's challenge asserts the Judge erred in law.
3. The Judge found that the appellant, born on the 1 January 1994 had left Eritrea illegally. The respondent's case is that although the appellant left illegally and is of draft age there was no real risk on return in light of the Danish FFM Report findings.
4. At [28] of the decision the Judge finds:

28. Therefore, I must consider whether or not there would be a risk on return to the appellant as a result of his illegal exit. As Mr Khalfey is not relying upon the Danish FFM Report then I turn to the available country guidance as referred to by Mr Reza both in his oral submissions and in detail in his skeleton argument. The country guidance clearly sets out that an individual in the appellant's position would be at risk from the authorities; therefore , I find that if the appellant were required to return to Eritrea that his article 3 rights would be infringed and so he should be granted humanitarian protection under paragraph 339C of the Immigration Rules as a result.

5. The Judge rejected the asylum claim on the basis of a finding the core of the appellants case lacked credibility. It is found at [24]:

24. As a result of these findings, I conclude that the appellant has failed to satisfy me, even to the lower standard, that he is at a real risk of persecution due to his religion and therefore I find that he does not satisfy the criteria set out in the Refugee convention and so he cannot be granted asylum on this basis.

6. The basis of the asylum claim was wider than that of religion as the country guidance case law refers to those of draft age who left the country illegally facing a real risk of persecution for this reason. Failure to adequately consider this element and to give reason for rejecting this claim amounts to arguable legal error.
7. The decision is set aside to be remade.
8. In the interim the Upper Tribunal has published the updated country guidance case of MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 00443 in which it found that 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 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.
9. The Convention reason is that of an adverse imputed political opinion.
10. Mr Bates accepted that on the draft evader issue, when considering the country guidance, the appellant was entitled to succeed with his appeal.
11. The appeal is allowed on Refugee Convention grounds.

Decision

12. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed.

Anonymity.

13. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 12 October 2016