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

The applicant FB is 31 years old and entered the United Kingdom in 2001. He applied for asylum. That was refused, and directions for removal were given in April 2004. There has been a previous adjudication. A re-consideration was ordered, which led to the hearing and decision of May 2007. Miss Baruah appeared for the applicant at the IAT, as she has done in this court.

In 2001 the applicant formed a relationship with a woman who had already been granted indefinite leave to remain in the United Kingdom. Before the tribunal, the applicant gave evidence that he would be at risk on return to Eritrea. Miss Baruah has referred to his evidence: that he had been a strong supporter of PLF/RC and would not renounce his membership; he asserted that he was a deserter, having left military service; (in paragraph 45) he had been called up in July 1997 and was posted to the airport in 1998. Because the war broke out in May 1998 he remained in military service. The war continued until July 2000 but the applicant fled before that date. He claimed that the Eritrean authorities would be interested in him because he had left national service illegally. He would be severely punished or persecuted if he returned.

His evidence in part related to activities when he was employed as part of his service at the airport and the risk he claimed to have arisen from those activities. The two points taken to establish an error of law are, first, that there is a fundamental contradiction in the determination of the IAT, having apparently found that the applicant was not a deserter. It is claimed that there was a finding that he was a deserter and hence was at risk. The second point is that the tribunal has misconstrued the guidance which appears in the several guidance cases and in the background material which was before the tribunal and which is now placed before this court. Further, the tribunal did not have the advantage of considering its subsequent decision in a guidance case, MA (Draft evaders – illegal departures – risk) (Eritrea) v SSHD [2007] UKAIT 00059, notified on 26 June 2007 -- that is after the decision of the tribunal in the present case.

In the determination, the evidence of the applicant and his witnesses is set out in considerable detail; and the objective evidence was considered and detailed reference is made to it. The tribunal did not accept the credibility of the applicant. Findings of credibility and facts begin at paragraph 71. At paragraph 77, the appellant asserted that certain passengers were not to be stopped at the airport but allowed to enter the country so that they might be followed and their contacts discovered. The applicant gave evidence of an occasion in May of 1999, that ELF members were to arrive from Germany and he was to give them assistance in the course of his allegedly subversive activities. The tribunal concluded:

“It is not credible that the Appellant, had he received reliable information that the delegates’ identities and exact travel arrangements were known to the authorities, would not have informed his cell leader and caused them to alter their plans, rather than let them enter a trap, where the entire staff of Immigration Officers and security services at the airport knew their identities and travel plans, and the government intended to follow them in Eritrea to discover their contacts there. The Appellant’s failure to warn the ELF deliberately endangered the passengers and local ELF members, and it is not credible that the appellant would have allowed them to jeopardise themselves and others, including himself, by placing them under government surveillance.

78.

It is not credible that the Appellant, who had no reason to shake hands with any passengers at all and had never previously done this, would approach the two passengers from Germany, and associate himself with them in such an obvious way, still in the airport just after they came through Immigration control…

79.

[In relation to questioning before an alleged arrest on 23 May 1999] … It is not credible that the Appellant would not have taken precautions for his safety had this incident taken place.

80.

… It is not credible that the Appellant and the witness would not have supported the account with reports in contemporary publications, which would have been a matter of great concern to the ELF and Eritrean community in Germany where the head office is now located, had they occurred.

81.

It is not credible that the Appellant’s father was killed by the authorities for his ELF membership…

82.

[Referring to the alleged treatment in detention] … It is not credible that the authorities, had they wished to kill or imprison the Appellant permanently, would have sent him for treatment for abscesses or allowed him liberty in hospital and to return home.

83.

… It is not credible that authorities, intent on persecuting the Appellant, would allow him 3½ months home leave to recuperate from the ill-treatment they had inflicted on him, nor that he would not have been required to return directly to continue military service. It is not credible that he was being watched.

84.

… It is not credible that a person in fear of persecution, having already experienced torture, interrogation, threats of death or imprisonment for life, and whose connections with a proscribed organisation were known to the authorities, would have remained at home in those circumstances

85.

It is not credible that the authorities would not have arrested the Appellant during the period from 30:10:99 to mid February 00 had they been interested in him or suspected him of political opposition through work for the ELF. It is not credible that the authorities would have failed to act to arrest the Appellant in the time it would have taken…”

Having set out the facts and made those findings on the subject of credibility and having reasoned them in that way, the tribunal concluded:

“86.

… I am not satisfied even to the lower level of proof required of an Appellant that he could be considered a deserter or would be of interest to the authorities if returned.

89.

The Appellant’s entire account lacks credibility and cannot be accepted as probative of any of his assertions. On the evidence and following guidance of KA paragraph 113 on risk categories to Eritreans of military service age, I conclude the Appellant can be considered to have left Eritrea legally.”

The first submission to which I have referred is based on paragraph 88:

“The Appellant asserted that he would be at risk, if returned, as a deserter from military service. He lived for a considerable period at a known address where he had been seen twice by those who had previously arrested him, without being ordered to return to military service. I conclude that the Appellant was not of interest as a deserter, following the guidance of WA paragraph 64 to 69.”

It is submitted that by including in that paragraph the expression “ordered to return to military service”, the tribunal was inevitably finding that he was a deserter because only if he was a deserter could such an order be contemplated. I do not accept that reading of the paragraph in context, following as it does the very considerable catalogue of reasons why credibility was not accepted, and the conclusions in paragraphs 86 and 89 to which I have referred. In refusing permission to appeal, Senior Immigration Judge Jarvis stated:

“Whilst it could have been more clearly expressed, at 88 the Immigration Judge appears to reason on the basis that even if the Appellant’s account of having been arrested were true, which she does not accept, then he had been seen twice by those who had arrested him…”

Sedley LJ, in refusing permission to appeal on a consideration of the papers, stated:

“As the SIJ correctly pointed out in refusing PTA, that is an ‘even if’ finding.”

I agree with that construction of the paragraph.

As to the second point, there is concern about the return of deserters to Eritrea and the risk which they face, and this has been the subject of very considerable analysis in the tribunal, followed by guidance. The tribunal in this case referred to paragraph 113 of KA, which includes the statement:

“A person who generally lacks credibility will not be assumed to have left illegally.”

The submission in this and many other cases is that it is those who have left illegally and are under the strict regime of national service existing in Ethiopia who are at risk on return. The tribunal’s reference to that paragraph in KA appears to me to be appropriate.

The main point relied on is that reconsideration is required, and a reassessment of the evidence in the light of the decision in MA, also a guidance case. Miss Baruah set out extracts from a very long decision in that case in her skeleton argument and has developed the points orally. She properly referred in her skeleton argument to paragraph 449 of the decision, which comes immediately before the short findings which led to the decision:

“A finding as to whether an Eritrean appellant has shown that it is reasonably likely that he or she left the country illegally, is therefore likely to remain crucial in deciding risk on return to that country (see paragraph 234 above). In making such a finding, judicial fact-finders will need to be aware of evidence that tends to show the numbers of those exiting Eritrea illegally appear to be substantially higher than those who do so legally and that distaste for what is effectively open-ended service at the behest of the state lies behind a good deal of the current emigration from Eritrea. Nevertheless, where a person has come to this country and given what the fact-finder concludes (according to the requisite standard of proof) to be an incredible account of his or her experiences, that person may well fail to show that he or she exited illegally.”

Paragraph 234 provides:

“The significance of that point [that is in relation to ‘a credible account of material particulars’] is worth emphasising. Persons who have been found by a judicial fact-finder not to be credible in any material respect may be hard-pressed to demonstrate that they left Eritrea illegally. If they did not exit illegally then the only alternative is that they left with the permission of the Eritrean authorities despite being of draft age. (see further paragraph 449 below).”

Miss Baruah’s first submission was that paragraph 449 is merely a recitation of KA. That clearly is not so. It is a finding of the tribunal itself in MA. It appears in the paragraphs headed “The nature of Eritrean ‘demobilisation’ and the risk on return”, where the very point at issue in this case was considered. She then submitted that consideration of the entire 450 paragraphs is required, but rightly did not persist in that submission, and neither she nor I are disadvantaged by referring to the parts which we have. It is then submitted that if one looks at other paragraphs to which she has referred me, it somehow takes the substance out of the plain statements in paragraphs 234 and 449. Those paragraphs appear to me to be clear guidance and guidance to be followed by tribunals; and I can see in this case no relevant difference between the way in which the tribunal put it by reference to an earlier case, from the way which it may now be put in the light of MA. In both cases it is clear that where there is a comprehensive finding that the applicant’s account of events is not credible, the tribunal is entitled to conclude on the evidence, if it sees fit, on a consideration of all the evidence and the circumstances, that the departure from Eritrea was not unlawful and was authorised.

The findings against the applicant in this case were comprehensive. They related not to a single incident but the entire account which the applicant gave as the basis for his alleged fear in Eritrea and his leaving the country. The suggestion that it was because the applicant was entrusted with an important position at the airport where he greeted entrants to Eritrea that he was at risk was rejected by the tribunal. Reasons for the rejection of that and other allegations which are claimed to put the applicant at risk, were given.

In those circumstances I can see no error of law in this determination. I agree with the senior immigration judge who refused permission, and with Sedley LJ who refused permission on paper. I have had the opportunity, with Miss Baruah’s help, to consider the recent guidance case of MA. Nothing relevant in that appears to me to create what is arguably an error of law in the approach which the tribunal took in this case. I see no real prospect of success and I refuse this application.