Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04051/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 January 2017
On 13 January 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Luul Yeibyo
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Mr J Kirk, instructed by Elder Rahimi Solicitors
For the respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Luul Yeibyo, date of birth 1.1.99, is a citizen of Eritrea.
2. This is his appeal against the decision of First-tier Tribunal Judge Lucas promulgated 17.10.16, dismissing on asylum and human rights grounds but allowing on humanitarian protection grounds only his appeal against the decision of the Secretary of State, dated 7.4.16, to refuse his claims for asylum, humanitarian protection and human rights.
3. The Judge heard the appeal on 15.9.16.
4. First-tier Tribunal Judge Chohan granted permission to appeal on 6.12.16.
5. Thus the matter came before me on 13.1.17 as an appeal in the Upper Tribunal.
Error of Law
6. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge Lucas should be set aside.
7. The Secretary of State accepted that the appellant was an Eritrean national who had left the country illegally and in doing so evaded national service, which the First-tier Tribunal Judge acknowledged at [18] and [19] of the decision.
8. Judge Lucas concluded that the appellant's core account was fabricated, unsustainable and implausible, but in the light of the country guidance in relation to illegal exit and draft evasion allowed the appeal on humanitarian protection grounds.
9. The decision not to allow the appeal on asylum grounds was perverse. The country guidance as it stood at the date of hearing of the appeal before the First-tier Tribunal included MO (illegal exit -risk on return) Eritrea CG [2011] UKUT 190 (IAC), and MA (Draft evaders -illegal departures-risk) Eritrea CG [2007] UKAIT 00059, which demonstrated that persons in the appellant's circumstances, having left Eritrea illegally in order to evade military service, are likely to be viewed as having engaged in an act of political opposition and on return would be persecuted for this reason, so that he is a refugee for a reason within the Refugee Convention.
10. Following the hearing but before the decision of the First-tier Tribunal was promulgated the Upper Tribunal confirmed this position in MST and Others (national service - risk categories) Eritrea CG [2016] UKUT 00443 (IAC).
11. It is clear that having found that the appellant would be at risk on return as someone who left illegally and evaded national service, the appeal should have been allowed on asylum grounds.
12. This is accepted in the Secretary of State's Rule 24 response, dated 5.1.17, which states: "The respondent does not oppose the appellant's application for permission to appeal and concedes the point raised in ground 1, that the First-tier Tribunal Judge made a material error of law in dismissing the appeal on asylum grounds, having found that the appellant left Eritrea illegally and had evaded national service. The Country Guidance on this scenario provides that the appellant falls under the provisions of the Refugee Convention and should be granted asylum. In the circumstances that the respondent accepts that the decision is unsustainable, it will be unnecessary for the hearing scheduled for 13 January to proceed."
13. The response of the Secretary of State has not been considered before today, and the appeal remained listed for hearing.
14. In the circumstances, and for the reasons explained above, it is clear that the decision of the First-tier Tribunal cannot stand and should be set aside to be remade by allowing the appeal on asylum grounds.
Conclusions:
15. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision in its entirety with no findings of fact preserved.
I re-make the decision in the appeal by allowing the appeal on asylum grounds.
In the circumstances, it is not necessary to consider humanitarian protection or human rights grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Deputy Upper Tribunal Judge Pickup
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: No fee is payable in this case and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup

Dated