Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02819/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 15 November 2016
On 17 November 2016

Before

LORD BANNATYNE
UPPER TRIBUNAL JUDGE PITT

Between

FT
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:
For the Appellant: Mr Chakmakjian, instructed by Leonard Cannings Solicitors LLP
For the Respondent: Mr Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we continue the anonymity order made by the First-tier Tribunal. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. We do so in order to avoid a likelihood of serious harm arising to the appellant from the contents of the protection claim.
2. This is an appeal against the decision promulgated on 21 September 2016 of First-tier Tribunal Judge Keith which refused the appellant's asylum appeal but allowed the appeal on humanitarian protection/Article 3 grounds.
3. The ground of challenge here was narrow, relating only to the refusal of the asylum claim. The parties were in agreement at the hearing as to there being an error on a point of law and also as to the re-making of the asylum appeal as allowed.
4. First-tier Tribunal Judge Keith found at [39] that the appellant had left Eritrea illegally and was of an age that meant that by doing so he had avoided military service. Indeed, as [39] indicates, the respondent had accepted that to be so.
5. The judge went on to disagree at [41]-[45] with the respondent's submission that the risk identified in MO (illegal exit-risk on return) Eritrea [2011] UKUT 00190 (IAC) for an appellant with this profile was no longer made out because of new country information. At [45], Judge Keith indicated that the new material relied upon by the respondent:
"? did not provide a sufficient basis to depart from the clear findings in MO that the Appellant faced a real risk of serious harm so that he was entitled to humanitarian protection (if not protection as a refugee, because he did not belong to a particular social group, or hold particular political opinions)."
6. At [52], Judge Keith went on to say:

"52) For the reason set out above (namely the absence of membership of a particular social group or political opinion), I do not find that the Appellant meets the requirements of the Refugee Convention as a "refugee", but I do find that he meets the criteria for subsidiary humanitarian protection, as demonstrating that if he were returned to Eritrea, there would be a real risk of suffering serious harm, on the basis of the case of MO. While I do not conclude that the risk to the Appellant of death is sufficiently certain to engage Article 2, I do conclude that the Appellant's removal would breach Article 3 in this context."
7. Those comments, in our view, showed a material misreading of MO which confirmed that illegal departure from Eritrea whilst of draft age amounted to an imputed political opinion, thus bringing the appellant within one of the categories set out in the Refugee Convention. This is indicated in the head note of MO at (iv):
"(iv) The general position adopted in MA, that a person of or approaching draft age (i.e. aged 8 or over and still not above the upper age limits for military service, being under 54 for men and under 47 for women) and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed ?.
(v) Whilst it also remains the position that failed asylum seekers as such are not generally at real risk of persecution or serious harm on return, on present evidence the great majority of such persons are likely to be perceived as having left illegally and this fact, save for very limited exceptions, will mean that on return they face a real risk of persecution or serious harm."
8. As indicated at [45] and [52], the First-tier Tribunal judge clearly intended to follow MO. If more were needed, the recent country guidance case of MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 00443 (IAC) at paragraphs 8 and 10 of the head note upholds paragraphs (iv) and (v) of the head note of MO.
9. We therefore found that the decision of the First-tier Tribunal disclosed an error on a point of law in the assessment of whether the appellant is a refugee and set aside that part of the decision. Following the reasoning above, we found that as someone who left Eritrea whilst of draft age, the appellant has shown a real risk of serious harm on the basis of imputed political opinion and meets the definition of a refugee under the Refugee Convention.
Decision
10. The decision of the First-tier Tribunal on the appellant's asylum claim discloses an error on a point of law and is set aside.
11. The appeal on asylum grounds is re-made as allowed.

Signed: Date: 15 November 2016

Upper Tribunal Judge Pitt