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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> HF (married women, exempt from draft) Eritrea [2005] UKAIT 00140 (6 October 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00140.html Cite as: [2005] UKIAT 00140, [2005] UKAIT 140, [2005] UKAIT 00140 |
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HF (married women – exempt from draft) Eritrea [2005] UKAIT 00140
Date of hearing: 1 June 2005
Date Determination notified: 6 October 2005
HF |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
Expert evidence that married women are exempt from call-up for compulsory military service in Eritrea
Background
Permission to appeal
"The failure to adduce material before the adjudicator is entirely the fault of the representatives. However, there has been a recent country guideline case in respect of the material alluded to (MA (Female Draft Evader) Eritrea CG [2004] UKIAT 00098 ) and in the premises it is appropriate to grant permission."
Error of law
"E and R [2004] EWCA Civ 49 - paras 65 and 66. Risk on return generally not considered by adjudicator.
a) Draft evasion noted by Adjudicator at paragraph 23 of determination. Not specifically raised as an issue before him [sic] and decision was before MA [2004] UKIAT 00098 However issue obvious one to be considered.
b) UNHCR "Position on Eritrea" Jan 2004 was not placed before Adjudicator raises Malta returns and urged states [to] refrain from all forced returns of rejected asylum seekers. Had Adjudicator had that doc (combined with US State Report which he had as evidence by para 23) his view on return may well have been different.
Not easy issue. SE [2004] UKIAT 00295, AN [2004] UKIAT 00300, NM [2005] UKIAT 00073 and 1 to come. Generous view of E and R to ensure that fairness is done."
Appellant 's submissions
"Persons being deported to Eritrea have long been of concern to UNHCR. Our position paper highlights the situation of deportees from Malta in particular. Between 30 September and 3 October 2002, 233 persons were deported from Malta to Eritrea. 170 of them were reported not to have sought asylum, whereas 53 had been rejected in the asylum procedure (which was not known to UNHCR at the time). They were reportedly arrested immediately on arrival in Asmara and taken to detention incommunicado. The Eritrean authorities neither acknowledged the detentions nor revealed the whereabouts of the detainees to their families or the public. Subsequent reports have suggested that those with children and those over 40 (the conscription limit) may have soon afterwards been released, but the remainder were - and many possibly still are - kept in incommunicado detention in secret places, described as halls made of iron sheets and underground bunkers. According to different sources, the detainees were deprived of their belongings (including shoes and clothes to change), subjected to forced labour, interrogated and tortured (e.g. by beating, tying up and prolonged exposure to sun at high temperatures). The dwellings are said to be congested and lacking the facilities for personal hygiene. Food and water provided for the detainees is inadequate and unclean. Consequently, many of the detainees have succumbed to illnesses, notably various skin conditions and diarrhoea. Medical treatment is said not to be available. Some detainees are believed to have died of their diseases and/or injuries. At least one person was allegedly killed by shooting during an escape attempt."
"The government detains about 350 refugees who fled Eritrea but were involuntarily repatriated in 2002 (from Malta) and in 2004 (from Libya). They are held incommunicado in detention centers on the Red Sea coast and in the Dahlak islands. Faced with the grim prospect of incommunicado detention and torture, a planeload of 75 Eritreans being forcibly returned to Eritrea from Libya commandeered their Libyan transport and forced it to land inSudan
."
"The evidence of the returns from Malta and Libya indicate that the Eritrean government is exceptionally suspicious of those of military age who are returned. It is not only the draft evaders amongst the Maltese returnees who were detained. Those of military service age, even those not identified as evaders, remain in detention. A similar fate has happened to the Libyan returnees."
Respondent's submissions
Appellant's reply
Conclusions
"I have been politically active for the EPLF-DP in the UK since around May 2003. I participate in demonstrations and attend meetings in London whenever I can afford to."
As that is not an argument on which the appellant sought to rely before us, we do not find it necessary to consider it further.
General risk as failed asylum seeker
"This appeal raises the issue of the nature and extent of the risk of persecution or treatment contrary to Article 3 for actual or perceived draft evaders being returned to Eritrea and, if there is a risk, whether it extends to all those of draft age. This case will review in the light of the current evidence the country guidance cases MA (female draft evader) Eritrea CG [2004] UKIAT 00098 , SE (deportation - Malta - 2002 - general risk) Eritrea CG [2004] UKIAT 00295 and the reported case GY (Eritrea - failed asylum seeker) Eritrea [2004] UKIAT 00327 , AT (return to Eritrea - article 3) Eritrea [2005] UKIAT 00043 and NM (Draft evaders - evidence of risk) Eritrea [2005] UKIAT 00073 This appeal is reported as country guidance on these issues."
"Bringing all these factors together, and applying the lower standard of proof, the Tribunal is satisfied that at present there is a real risk that those who have sought to avoid military service or are perceived to have done so, are at risk of treatment amounting to persecution and falling within Article 3. We summarise our conclusions as follows:
(i) On the basis of the evidence presently available, there is a real risk of persecution and treatment contrary to Article 3 for those who have sought or are regarded as having sought to avoid military service in Eritrea.
(ii) There is no material distinction to be drawn between deserters and draft evaders. The issue is simply whether the Eritrean authorities will regard a returnee as someone who has sought to evade military service or as a deserter. The fact that a returnee is of draft age is not determinative. The issue is whether on the facts a returnee of draft age would be perceived as having sought to evade the draft by his or her departure from Eritrea. If someone falls within an exemption from the draft there would be no perception of draft evasion. If a person has yet to reach the age for military service, he would not be regarded as a draft evader: see paragraph 14 of AT. If someone has been eligible for call-up over a significant period but has not been called up, then again there will normally be no basis for a finding that he or she would be regarded as a draft evader. Those at risk on the present evidence are those suspected of having left to avoid the draft. Those who received call up papers or who were approaching or had recently passed draft age at the time they left Eritrea may, depending on their own particular circumstances, on the present evidence be regarded by the authorities as draft evaders.
(iii) NM is not to be treated as authority for the proposition that all returnees of draft age are at risk on return. In that case the Tribunal found on the facts that the appellant would be regarded as a draft evader and also took into account the fact that there was an additional element in the appellant's background, the fact that her father had been a member of the ELF, which might put her at risk on return.
(iv) There is no justification on the latest evidence before the Tribunal for a distinction between male and female draft evaders or deserters. The risk applies equally to both.
(v) The issue of military service has become politicised and actual or perceived evasion of military service is regarded by the Eritrean authorities as an expression of political opinion. The evidence also supports the contention that the Eritrean government uses national service as a repressive measure against those perceived as opponents of the government.
(vi) The position for those who have avoided or are regarded as trying to avoid military service has worsened since the Tribunal heard MA.
(vii) The evidence does not support a proposition that there is a general risk for all returnees. The determinations in SE and GY are confirmed in this respect. In so far as they dealt with a risk arising from the evasion of military service, they have been superseded by further evidence and on this issue should be read in the light of this determination."
Risk as perceived draft evader
"With the exception of married women and the medically unfit, all Eritrean citizens must undertake military service. Draft evasion is punishable by imprisonment with decisions on detention taken by secret military tribunals. There is no provision for conscientious objection."
"The appellant relied on an expert report from Dr David Poole [sic] dated 15 February 2005. This confirms that, with the exception of married women and the medically unfit, all Eritrean citizens between the ages of eighteen and forty must undertake military service and that draft evasion is punishable by imprisonment with decisions on the length of detention decided by secret military tribunals."
Reporting
Decision
Signed
Dated: 3 October 2005
L V Waumsley
Senior Immigration Judge
Approved for electronic distribution