Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001821

First-tier Tribunal Nos: PA/54968/2021
IA/15056/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

1st of October 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

HH
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Panagiotopoulou, instructed by Shervins Solicitors
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer

Heard at Field House on 23 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant is a citizen of Eritrea. Her date of birth is 3 April 1987. In a decision dated 5 August 2025 a panel comprising Upper Tribunal Judge McWilliam and Deputy Upper Tribunal Judge Solanki set aside the decision of the First-tier Tribunal to dismiss the Appellant’s appeal on asylum grounds.
2. The Appellant successful on one ground, namely that the judge did not consider whether despite having exited Eritrea lawfully the Appellant may on forcible return have to resume or commence national service. National service constitutes forced labour contrary to Article 4(2) and Article 3 of the ECHR. The First-tier Tribunal did not apply MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 443.
3. It is necessary for us to set out the headnote of MST;
“1. Although reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 59 and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 190 (IAC), this case replaces that with the following:
2. The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service.
3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men.
4. The categories of lawful exit have not significantly changed since MO and are likely to be as follows:
(i) Men aged over 54
(ii) Women aged over 47
(iii) Children aged under five (with some scope for adolescents in family reunification cases
(iv) People exempt from national service on medical grounds
(v) People travelling abroad for medical treatment
(vi) People travelling abroad for studies or for a conference
(vii) Business and sportsmen
(viii) Former freedom fighters (Tegadelti) and their family members
(ix) Authority representatives in leading positions and their family members
5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.
6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return.
7. Notwithstanding that the round-ups (giffas) of suspected evaders/deserters, the ‘shoot to kill’ policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.
(i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.
(ii) Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii).
(iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.
8. Notwithstanding that many Eritreans are effectively reservists having been discharged/released from national service and unlikely to face recall, it remains unlikely that they will have received or be able to receive official confirmation of completion of national service. Thus it remains the case, as in MO that ‘(iv) The general position adopted in MA, that a person of or approaching draft 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, subject to limited exceptions…’
9. A person liable to perform service in the people’s militia and who is assessed to have left Eritrea illegally, is not likely on return to face a real risk of persecution or serious harm.
10. Accordingly, 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.
11. While likely to be a rare case, it is possible that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.
12. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a
Convention reason based on imputed political opinion”.
4. The Appellant is a female citizen of Eritrea. She left Eritrea in 2006. She worked in Saudi Arabia as a domestic worker between 2007-2014. She arrived in the UK as a domestic worker in August 2014 and claimed asylum shortly after on the basis that she had left Eritrea illegally and she would be persecuted on grounds of imputed political opinion on return. The Appellant was found not to be credible. The First-tier did not accept that she left Eritrea unlawfully. This finding is preserved.
5. The issue is whether despite having exited Eritrea lawfully, on forcible return the Appellant will face be perceived on return as a draft evader and/or have to resume or commence national service.
Findings and reasons
6. I had the benefit of skeleton arguments from both representatives and oral submissions with which I will engage in my findings.
7. I reject Mr Wain’s contention that while the Appellant is aged 46, she will be aged 47 by the time she is appeal rights exhausted and when she will be returned and that her appeal should be considered on that basis. I accept Ms Panagiotopoulou’s contention that I must consider risk on return at the date of the hearing. In any event, I would not be willing to speculate about the likely date of her removal. I will consider risk on return to the Appellant who is aged 46 and therefore of draft age.
8. The Appellant will be forcibly returned to Eritrea as her asylum claim has not been found to be credible by the First-tier Tribunal. In MST the Tribunal found that it would be rare in those circumstances that a person in the Appellant’s position would be at risk of serious harm by virtue of having to resume or commence national service.
9. On the basis that the Appellant has been found not to be credible, it is not appropriate for me to speculate how she left Eritrea lawfully. Ms Panagiotopoulou said that she left before the strict exit procedure. However, I take into account that in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 59 the UT considered evidence from 2006 and rejected the evidence that no one under 50 could obtain a visa to leave Eritrea. The UT accepted the evidence of Dr Kibreab in respect of those who are not affected by National Service and considered trustworthy by the government and who are unlikely to have difficulties in obtaining visit visas. Paragraph 348 of MA reads as follows:
“348. …. Dr Kibreab told us that those not affected by National Service and considered as trustworthy by the government, and thus unlikely to have difficulty in obtaining exit visas, comprised Ministers; ex-Ministers; Party Activists; Eritrean expatriates; namely those who could be British citizens working in Eritrea but of Eritrean origin; elderly people over fifty who were forty or over in 1994, those who wanted to go on Haj or visit relatives abroad; government officials; scholarship students (although Dr Kibreab's evidence was that the government now restricted their movements as many did not return); government employees who attended conferences (although Dr Kibreab maintianed this had recently stopped); and relatives of those in power who might arguably obtain exit visas as a result”.
10. It is reasonable to infer that as the Appellant left lawfully, at the time she left Eritrea she fell into one of the above categories that could potentially apply to her.
11. I asked Ms Panagiotopoulou to identify the circumstances that make this case rare with reference to paragraph 11 of the headnote in MST. She said that they were (1) The Appellant exited Eritrea nineteen years ago (2) She is of draft age (3) the background evidence.
12. Ms Panagiotopoulou relied on background evidence which had been served on the UT before the hearing. She relied on the CPIN-Eritrea– national service and illegal exit, Eritrea September 2021. She relied on section 7 to support that the Appellant does not fall into an exemption and is likely to be perceived as a draft evader. She relied on HRW -Eritrea – events of 2024 to support amongst other things that the Appellant will be vulnerable to sexual harassment and sexual violence as a female conscript. I accept that this and the CPIN support that many female conscripts are subjected to sexual abuse. I accept that the Appellant would not on the face of it fall into fall into an exemption. However, she left Eritrea lawfully and therefore fell into one of the categories described in MA.
13. The Appellant relied on ecoi.net: Eritrea- country briefing– 15.3.2024 to support forced conscription had increased and that coercive measures were used on an increasing scale to mobile the population. I accept that looking at the article that it may apply to all age groups; however, the examples given relate to children. There are no examples given which would relate to someone of the Appellant’s age. I do not find that this evidence is sufficient to go behind the country guidance or to support that the Appellant’s case is rare.
14. I have taken into account all the evidence submitted by the Appellant. I do not find the Appellant will be perceived as a draft evader on return. She has been found not to be credible. She left Eritrea lawfully and it can reasonably be inferred that she fell into one of the categories identified by Dr Kibreab in MA. She is not approaching draft age. She does not satisfy the conditions identified at para 10 of the headnote in MST.
15. While the Tribunal in MST did not give examples of rare cases, I do not find that the passage of time since she left Eritrea makes the Appellant’s case rare. Moreover, the Appellant’s case cannot be described as rare on the basis that she is of draft age. In respect of the background evidence, while capable of supporting that forced conscription had increased, it does not support that this Appellant an adult who left Eritrea lawfully would be at risk of having to resume of start national service.
16. Properly applying MST, I find that the Appellant will not be perceived as a draft evader or deserter on return, albeit forcibly returned. The Appellant has not established that she will be at risk of having to resume or start national service. This is not a rare case taking the factors identified by Ms Panagiotopoulou individually or cumulatively.
17. The Appellant relied on private life and very significant obstacles to integration to support her appeal under Article 8. However, there was no evidence of this over and above her claim for asylum. Her case was not advanced further on Article 8 grounds.
Notice of Decision
18. The Appellant’s appeal is dismissed on asylum grounds, humanitarian protection grounds and under Article 8 ECHR. The appeal is dismissed.

Joanna McWilliam
Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 September 2025