Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03334/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12th September 2016
On 29th September 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ALAY [K]
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr A Adewoyle, Prime Solicitors

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a citizen of Eritrea aged 20. His appeal against the Respondent's decision to deport him as a foreign criminal was allowed by First-tier Tribunal Judge O'Rourke in a decision promulgated on 20th January 2016.

2. The Secretary of State appealed on the grounds that the judge failed to provide adequate reasons on material matters. The evidence before the judge demonstrated a significant change in the approach by the Eritrean authorities on the issue of illegal exit and draft evasion to the extent that there was ample evidence to depart from the country guidance of MA (Draft evaders - illegal departures - risk) Eritrea CG [2007] UKAIT 00059.

3. The judge had failed to make clear in his decision the precise criticisms levied at the Danish FFM report which was relied on by the Respondent. In addition the judge had before him the September 2015 CIG on national service and illegal exit. This report took into account a range of sources and demonstrated that the Eritrean government was adopting an increasingly pragmatic approach to draft evasion and desertion (paragraph 2.6.5). The judge had failed to adequately engage with this report and it was clearly relevant material which rendered the judge's assessment incomplete.

4. Further, the judge found that the Appellant would be unable to pay the diaspora tax, but this failed to take into account the availability of funds from the Appellant's family members, in particular his brother who was employed in the UK and had indicated a wish to visit his siblings. The judge had further taken into account irrelevant matters in finding that the Appellant would be at risk as a trouble maker. The judge had failed to provide sufficient reasons to conclude that the Appellant would be subject to false labour, in failing to identify cogent objective evidence to suggest that the Appellant would fall within the rare number of cases where conditions of national service coupled with its duration would amount to forced labour.

5. Permission to appeal was granted by Upper Tribunal Judge Goldstein on the following basis: "In view of the present uncertainties as regards the situation as it relates to risk on return to Eritrea, and the shortly pending consideration of the issue by the Upper Tribunal, I am persuaded that in such circumstances, Ground one, that challenges inter alia, the First-tier Tribunal Judge's reliance on the guidance in MA (Draft evaders -illegal departures - risk) Eritrea CG [2007] UKAIT 00059 (that was not in any event the most recent guidance: See MO (Illegal exit - risk on return) Eritrea CG [2011] UKUT 00190 (IAC)) are arguably not least as to whether in such circumstances the judge was entitled in law to reach the conclusions that he did for the reasons given."

6. Mr Clarke relied on the grounds and submitted that the judge was dismissive of the Respondent's evidence without appreciating that it was premised and supported by other evidence. Further, the judge failed to consider that the Appellant's brother could support him and pay the diaspora tax and the judge has failed to give proper reasons for why he concluded that the Appellant would be a trouble maker. His finding that the Appellant would be subject to forced labour was not reasoned on the basis of the available evidence in the CIG. There were strong grounds to depart from the country guidance at paragraph 2.5.13 of the CIG. The evidence which was before the judge was not miles away from the country guidance. The Danish Report indicated a softening of the government approach. If the judge refused to depart from country guidance then the Appellant's appeal would be successful. However, the judge wrongly concluded that the Danish Report was insufficient to depart from country guidance and accordingly he had erred in law.

7. Given the judge's reasons at paragraph 28 of the decision, I concluded that it was not necessary to hear oral submissions from Mr Adewoyle and he relied on his Rule 24 response which in essence submitted that the First-tier Tribunal Judge had considered all the evidence and his conclusions were open to him. The judge had properly applied country guidance because there was no clear evidence of a change in circumstances. It was clear from both country guidance cases that those who exited illegally and returnees who are to undertake military service may be ill-treated contrary to Article 3 of the ECHR.

8. In his Rule 24 response, Mr Adewoyle relied on MO which states: "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 the very limited exceptions, will mean that on return they would face a real risk of persecution or serious harm."

9. It was submitted that following MA: "Illegal exit continued to be a key factor in assessing risk on return. A person who fails to show that he or she left illegally will not in general be at real risk even if of draft age and whether or not the authorities are aware that he or she has unsuccessfully claimed asylum in the United Kingdom."

10. Mr Adewoyle submitted that the judge was entitled to rely on the country guidance case given that the objective evidence in the current CIG of 2015 and the CIO of September 2015 was not of a certain nature and it was unclear if the situation had changed from the situation in MA. The judge took into account the evidence before him and was entitled to choose the version he preferred in the objective evidence. There was other objective evidence at pages 42 to 58 of the Appellant's bundle which gave credence to the fact that illegal exit, draft evasion and conditions of military service would amount to treatment in breach of Articles 2 and 3 of the ECHR.

11. The judge was also entitled to rely on the well documented behavioural pattern of the Appellant, which had landed him in trouble in the UK, to predict a profile that would attract the adverse attention of the Eritrean authorities. The judge had the benefit of the OASys Report, Risk Assessment Report and the sentencing remarks, including a special needs assessment and the poor grasp of local language, to fit into the profile of those who will come to the adverse attention of the authorities if returned to Eritrea and undergo military service.

12. The reference to diaspora tax by the judge was correct. The evidence was unclear as to who benefits from the chance to pay the tax. It was unclear whether this is limited to those who had left a long time ago, those who exited illegally, or those who had evaded draft or will be treated as such. The judge was entitled to find that the Appellant would be unable to pay or simply refuse to pay as a rebellion against constituted authority.

Discussion and Conclusions

13. At the beginning of the hearing Mr Clarke applied for an adjournment on the basis that permission had been granted on the grounds that there was country guidance from the Tribunal under consideration and that a decision was expected in the near future. He sought an adjournment to await promulgation of that decision. Mr Adewoyle resisted the application for the adjournment on the basis that it was unknown when a decision would be promulgated and that the Appellant was currently detained pending the appeal by the Respondent and would be prejudiced by any delay. The issue was whether the judge had applied the relevant guidance at the time of the decision and whether there was an error in his decision. If it subsequently transpired from the imminent country guidance case that there had been a change in circumstances and the Appellant no longer succeeded, then it would be open to the Respondent to curtail any leave that was given. An adjournment was not the appropriate course of action and the appeal should go ahead.

14. I considered the matters, but concluded that it was unclear when a country guidance decision on Eritrea would be handed down and therefore it would be prejudicial to the Appellant to keep him in detention pending his case being resolved. The issue was whether the judge had made an error of law on the basis of the material that was before him and a decision could be made in relation to that without awaiting any country guidance, particularly where it was unknown when a decision would in fact be promulgated. Accordingly, I refused the adjournment.

15. The issue in this case is whether the judge had sufficient evidence before him to depart from country guidance. It was conceded by Mr Clarke that, applying country guidance in MA and MO, the Appellant would succeed in his claim. The issue before the judge was whether there was evidence sufficient to demonstrate a change in circumstances such that country guidance should not be followed.

16. I find that it is clear from the judge's decision at paragraph 28 that he considered all relevant evidence, but concluded it was insufficient to enable him to depart from country guidance. At paragraph 28 the judge states:

"I find that the Appellant is entitled to humanitarian protection and/or the UK would be in breach of Article 3 or 4 of the ECHR if the Appellant were deported to Eritrea and I do so for the following reasons.

i. While I do not consider there to be a great risk of the Appellant being treated as a draft evader if returned to Eritrea (because of his age when he left the country - the age of 8 being regarded as the minimum to which such considerations would apply (MA (Draft evaders - illegal departures - risk) Eritrea CG [2007] UKAIT 00059) the country guidance indicates that such risk cannot be discounted and bearing in mind his now relatively poor grasp of Tigrinya, (and indeed difficulty in even expressing himself in clear English); his complete lack of knowledge of the country and, I accept, the lack of any family or other support there and his likely inability to pay any 'diaspora tax', there is every chance he would fall foul of the authorities. In those circumstances, the bulk of the objective evidence indicates that he could face torture or inhuman or degrading treatment. I note the Danish FFM Report, but that report seems to have been 'cherry picked' from others of the same vintage, as perhaps it paints a slightly more favourable view of this scenario. However, even that report is far from unequivocal, laced as it is with terms such as 'unclear', 'some sources indicate they might; others indicate they may not', 'difficult to establish', 'no information is available'. Other reports, such as one from the UN 2015 Commission of Enquiry [13.2.1] indicate that 'national service conscripts may be detained for a variety of reasons, including for desertion, unauthorised movement or absence, insubordination or for asking questions. The Commission documented many cases of detention in military training camps prisons and others for the reasons mentioned above, often accompanied by torture and ill-treatment.' I consider therefore that particularly taking into account the Appellant's troubled profile, he will be at unacceptable risk of such treatment.

ii. In any event, even if not regarded as a draft evader, he is highly likely to be conscripted. The country guidance is again equivocal on what the consequences of what that might be for the Appellant. It does however state [2.5.3] that 'dissent, attempted escape and disobedience can be punished severely. Even minor transgressions against military discipline or any form of criticism may attract severe punishment including ill-treatment and torture.' The bulk of the Appellant's life since his early teenage years has been one of disobedience, disruption, rule and law-breaking, with little apparent self control on his part. He also has no experience of life in Eritrea and (I accept) is likely to have a poor grasp of the language (at least for an initial period). It seems overwhelmingly likely therefore that he would quite likely come to the attention of his military superiors, be identified as a 'trouble-maker' and be treated accordingly.

iii. The Country Guidance indicates [2.5.12 and 2.5.14] that the current model of national service is of such duration that when coupled with poor conditions, may in some cases amount to forced labour. Those who are more likely to escape that combination of poor conditions and excessive duration are conscripts with connections, or the educational qualifications to merit higher level civilian posts, but the Appellant has neither. The indications are therefore, that he will be the 'lowest of the low', left to perform the most menial and manual work, for an unknown duration. I consider such treatment would amount to forced labour, in breach of Article 4."

17. Accordingly, I find that the judge has assessed whether the evidence before him was sufficient to depart from country guidance and he gave sufficient reasons for his conclusions that it was not.

18. The Respondent relied on paragraph 2.5.13 of the CIG which states that the Eritrean government has stated that from November 2014 national service will has reverted to eighteen months only and be based in the military i.e. no civic or government postings. There is evidence that this has been communicated to some conscripts. The new approach will reportedly include those who have not yet reported for national service, but it is unclear as to whether it will apply to deserters, existing conscripts or returnees.

19. The judge's conclusion that the evidence was insufficient to depart from the country guidance was a conclusion which was open to the judge on the evidence before him. The CIG does not support a departure the country guidance.

20. The judge properly applied country guidance relevant to the Appellant's case and there was no error of law in the judge's decision to allow the appeal on humanitarian protection and human rights grounds. The Respondent's appeal against that decision is dismissed.

Notice of Decision

Appeal dismissed

No anonymity direction is made.

J Frances
Signed Date: 27th September 2016

Upper Tribunal Judge Frances