Fesum v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE TUCKEY: This is an appeal by Aynom Fesum from a decision of the Immigration Appeal Tribunal, dismissing his appeal from a decision of an Adjudicator, who had in turn dismissed his appeal from the Secretary of State's rejection of his claim for asylum and under the Human Rights Convention.

2. The appellant, a national of Eritrea, entered the United Kingdom on 21 April 2002 using forged travel documents. The Adjudicator accepted that he was born on 15 March 1986, so he was just 16 when he arrived. He claimed asylum three days later on the basis that shortly before he left Eritrea his father, a dissident army officer, had been arrested and detained and he feared that if returned he would meet the same fate.

3. The Adjudicator accepted that the appellant had left Eritrea after his father had been arrested for political reasons and an incident which occurred when he returned home from school to find police questioning his mother about his father's activities, in the course of which they assaulted her and roughed him up when he tried to intervene. His evidence, about which the Adjudicator made no specific finding, was that when the police were about to leave they said that he should not have been at home while many young people like him were fighting. They were told by his mother that he was underage, but said that they did not care. When they left they said that they had to weed out traitors and no one would protect him; they would be back for him.

4. The issue on the asylum claim was whether the appellant, as the minor son of his father, was at risk of persecution simply because he was the son. The Adjudicator said it was not difficult to understand why, as a sensible precaution, the appellant had been got out of Eritrea because his family's position was bound to be uncertain following his father's arrest. This did not of itself, however, establish the claim. The Adjudicator went on to say:

"The objective evidence shows that whereas ordinary war refugees can now safely be returned, those who are perceived to be opposed to the government are at risk of arrest and long-term detention in breach of a number of their human rights. There is however no evidence that the non-political families of such people are themselves at risk ...

Having just emerged from a fierce border war, Eritrea is jumpy but the evidence does not show that those who do not draw attention to themselves are at risk -- otherwise the UNHCR would not be returning ordinary refugees. There is no generalised witch hunt."

5. Taking the situation as a whole, the Adjudicator concluded that the appellant had not established that he would be subjected to persecution if returned. It was ground that he was not political himself and had expressed no political opposition to the government.

6. The appellant obtained permission to appeal to the Tribunal on three grounds, only the third of which is relevant for present purposes. This alleged that the Adjudicator's decision was irrational because the findings he made could only have led him to conclude that the appellant was at risk if returned. However, somewhat eccentrically, in support of this ground it appears that the appellant's representative relied on objective evidence which was not before the Adjudicator. This included an Amnesty International Report, a United States State Department Report for 2002 and a report from Human Rights Watch made in January 2004. These reports referred, among other things, to the well publicised arrests and detention of 11 members of a group of 15 Eritrean dissidents in September 2001 (the G-15 Group). The reports also referred to the arrests of those with ties to this group.

7. It was argued that the appellant's father was associated with the G-15 Group. We have been taken through the material, which was before the Tribunal in some detail. It paints a depressing picture of conditions in Eritrea, although it is right to say that the picture is substantially the same as that summarised by the Adjudicator in the reasons for his decision.

8. In their reasons the Tribunal quote the State Department Report that at least six examples of arbitrary arrest of relatives of the G-15 Group had been reported and that there were unconfirmed reports of other arrests. Subsequent information, the Tribunal record, showed that two of the relatives of those associated with the G-15 Group had been released.

9. The Tribunal also quote from the Human Rights Watch Report which said:

"The government has arrested scores of Eritreans because of their ties to the dissidents, their perceived political views or their deviation from government dogma."

The Tribunal added:

"There are no more details or confirmation for that reference to 'scores of Eritreans' than for the unconfirmed detention of 'dozens' reported by Amnesty International ..."

10. Having reviewed the objective evidence in this way, the Tribunal concluded:

" ... there is nothing to show that relatives of supporters of the G-15 remained in detention. This appellant did not claim his father was a member of the G-15 himself, but only a supporter.

Our view is this. The appellant at the time of the incidents in question was not yet 16. He had not been sought by the authorities as far as anyone can see, but had simply come home and found the trouble going on. There is nothing to suggest that his father was a prominent enough supporter of the G-15 for this appellant himself to be at any real risk on return."

11. The notice of appeal takes two points, which it is not necessary to recite, because they are encompassed now in the way in which Mr Cox, who has appeared for the appellant today, puts the case. He argues that the Tribunal failed to give adequate reasons for their conclusion. The notice of appeal barely says this, but I am prepared to deal with the appeal on this basis, noting in passing that the failure to take this point clearly illustrates the difficulty of identifying any error of law by the Tribunal, which is of course a prerequisite of any appeal to this court.

12. The premise for Mr Cox's submission is that the objective evidence does support the claim that the appellant was at risk. It did not and could not do so more specifically because the Eritrean Government refuses to allow bodies such as Amnesty to visit the country to inspect conditions there, or to discuss their concerns. There simply was no available information as to whether someone in the particular position of the appellant was at risk. There was enough general information to suggest that he was, and yet the Tribunal had not spelt out sufficiently clearly the reasons for their conclusion. Had they rejected the general evidence altogether, or had they simply decided that the appellant was not at risk because the evidence was not specific enough? The appellant was entitled to know which. In either event, it could be argued that the IAT had acted perversely.

13. Cogently though this argument was put, I do not accept it. The Tribunal's reasons show that they looked at such objective material as was available, recognised that it was of a general nature, but that the class of person who might be at risk was someone associated with the G-15 group, as the appellant claimed his father was.

14. The Tribunal went on to consider whether the appellant fell within this class. They noted first of all that the appellant's father was only a supporter of G-15 and then considered whether the appellant, as the minor child of such a supporter, was himself at risk and concluded for the reasons which they gave that he was not.

15. This conclusion was, I think, sufficiently explained and clearly one which this experienced specialist Tribunal was entitled to reach on the evidence before it. In truth, the appellant's challenge to the decision is and always has been no more than that it is wrong. Such a challenge cannot be made in this court, however skilfully it may be packaged as a point of law.

16. For those reasons, I would dismiss this appeal. I should add, however, that in her submissions to this court on behalf of the Secretary of State, Miss Anderson has acknowledged the appellant's undoubted right to make a fresh claim if there are new facts which justify it. One such fact, as she accepted, is that the appellant is now 18 and therefore eligible for military service in Eritrea. There is some evidence that returned draft evaders may be at risk if returned. That is something which will have to be investigated if the appellant makes a fresh claim.

17. LORD JUSTICE WALLER: I agree that this appeal should be dismissed for the reasons given by my Lord.

18. SIR CHARLES MANTELL: I also agree.

Order: Appeal dismissed. Respondent awarded costs.