AG (Eritrea) v Secretary of State for the Home Department

The applicant is a citizen of Eritrea who has sought asylum in this country. Her claim was refused by the Secretary of State. An appeal was dismissed by an immigration judge. Reconsideration of that decision was ordered, but a senior immigration judge found on reconsideration that the original judge did not make a material error of law.

Permission to appeal was refused by the tribunal and by Sir Henry Brooke. The application is now renewed before me. The applicant has appeared in person and, with the assistance of an interpreter, has made clear and helpful submissions to me.

The account given by her in support of her asylum claim was that her husband had deserted from the Eritrean Army in October 2001, as a result of which she was detained by the police for about a month. She was released, as I understand it, when he was arrested. She had worked for a wealthy family in Asmara since the beginning of 2001 and they took her back after her release from detention. She says that the family was of the Pentecostalist Christian faith. She herself converted to that faith in January 2002 and was baptised in April 2002, a month before practice of the religion was banned by the Eritrean authorities. In August 2006 the house was raided by the police and soon afterwards the police came to her house looking for her. It was then that she decided to leave Eritrea for her own safety, and with the assistance of an agent she travelled to Sudan and then to this country.

The original immigration judge described the applicant’s claim as pithy and lacking substantive detail. She said that the applicant’s oral evidence was full of inconsistency. After examining the evidence in some detail, the judge found that the account which the applicant gave of the search of her employer’s home was not credible, and that the applicant did not come to the attention of the authorities for that or any other reason.

She said that logically the rest of the applicant’s claim fell away, but in coming to her findings she took into account the applicant’s evidence concerning her faith. On that issue the judge found as a fact that the applicant was not a Pentecostalist. The judge concluded that the applicant had fabricated her account in order to gain access to this country and that there were no substantial grounds for believing that the applicant would be at risk on return to Eritrea.

I should also mention that the applicant had originally claimed that she would be perceived as a draft evader on return to Eritrea, but the judge found little merit in that claim because the applicant accepted in evidence that she was exempt from military service as a married woman with a child. That aspect of the claim was not pursued on the reconsideration.

The case before this court as set out in the grounds of appeal is, in essence, that the original judge erred in law in certain respects and the senior immigration judge should have so concluded on the reconsideration.

Let me get out of the way at the start one point made in the papers, which is a complaint that the senior immigration judge who refused permission to appeal to this court was the same judge as the one who decided the case on reconsideration. There is nothing wrong with the judge who has decided the case also deciding whether to grant leave to appeal; it is in fact the normal practice in these courts. Anyway, nothing turns on it because an application can be made and has been made direct to this court.

Turning to the alleged errors of law in the original judge’s decision, it is said first that the judge ought to have found that the applicant’s husband was a deserter from the army. The senior immigration judge observed that the original judge had not made any express finding about the husband, but referred to a clear discrepancy in the applicant’s evidence on this and thought it clear that the judge had rejected the applicant’s evidence on the point because of that discrepancy.

For my part, I am prepared to proceed on the basis that the judge made no finding on the point. I do not think that that was an error, let alone a material error. The applicant had lived in Eritrea for some five years since the desertion of her husband and her own detention by the police. The desertion, if it happened, was not in itself going to place her at risk on return. The applicant has rightly accepted that she did not flee the country because of concerns about risk arising from her husband’s desertion. The risk that she claims to fear arises out of her faith, so the absence of a finding on the husband’s desertion from the army does not matter.

A further point made in the grounds of appeal is that there was no clear finding by the original judge on whether the applicant had left Eritrea illegally. The senior immigration judge, on the reconsideration, said that the applicant’s lack of credibility generally meant that she had failed to show that she had left the country illegally. I see no error of law in that approach, but again I am not persuaded that the original judge needed to make a finding on this point since it was common ground that she would not be perceived on return as a draft evader, which is the point to which the issue of legal or illegal departure from the country can be particularly relevant. If the judge was otherwise correct in her findings that the applicant would not be at risk on return, the fact of illegal departure from the country, even if established, would not be sufficient to put her at risk.

I turn to the final and most important question: the challenge to the original judge’s findings concerning the applicant’s faith and her account of what happened to her by reason of her faith and her employer’s faith. The grounds of appeal raise a rather technical point, though in principle an important point: it is said that the original judge fell into the trap identified in one of the earlier cases, in reaching an adverse credibility finding first in relation to the applicant’s account of the raid on her employer’s house and only then turning to consider her claim to be a Pentecostalist.

The case referred to was one in which the tribunal was found to have erred in law in rejecting the applicant’s credibility before considering medical evidence which strongly supported credibility. I am satisfied that the judge in this case did not fall into an equivalent error. The applicant’s claim to be a Pentecostalist did not in itself provide support for the credibility of her account of the raid on her employer’s house. The judge was entitled to reject that account for the reasons she gave and to go on to consider the claim to be a Pentecostalist.

This brings me to the heart of the case as seen by the applicant herself, which is her complaint that the judge was wrong to reject her evidence as to her faith. She observes that she had answered all the questions put to her about her faith and she asks: how could the judge find against her in those circumstances? I stress that the function of this court is not to reach its own conclusion on the merits of a claim, but only to consider whether the decision reached below was a lawful decision. I do not think there was any arguable error of law in the judge’s approach to this issue or her conclusions on it. In my view, she was entitled, for the reasons she gave, to reject the applicant’s claim as to her faith; and it seems to me that the written grounds of appeal prepared on the applicant’s behalf were realistic in not seeking to challenge that aspect of the judge’s conclusion. They were right to try to identify some legal error, even though, for the reasons I have given, I do not think that they succeeded in identifying such an error.

For those reasons I have reached the same conclusion as Sir Henry Brooke, that there is no real prospect of success on an appeal. Permission to appeal must therefore be refused.