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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> FN (Article 8, removal, viable options) Eritrea [2006] UKAIT 00044 (18 April 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00044.html Cite as: [2006] UKAIT 00044, [2006] UKAIT 44 |
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FN (Article 8 – removal- viable options) Eritrea [2006] UKAIT 00044
Date of hearing: 5 December 2005
Date Determination notified: 18 April 2006
FN |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
The assessment of an in-country Article 8 claim will normally first require consideration of (i) whether there are insurmountable obstacles to the appellant's family accompanying him or her abroad and then second, (ii) whether even if there exist such obstacles, there is a viable option of an entry clearance application.
The fact that before being able to apply for entry clearance a person may have to perform military service in his country of origin will not normally be a factor of any significance in assessing the proportionality of a return in the context of Article 8.
Introduction – the procedural history
"1. On risk on return, the Immigration Judge accepted in paragraph 12 that the appellant had perhaps conscientious reasons for not wanting to perform military service and that he would face in consequence a penalty of three years detention. Given these findings his assessment that the appellant would not face a real risk of serious harm was contrary to the Tribunal Country Guidance on this issue.
2. On Article 8, the Immigration Judge erred in failing to consider, when examining whether the appellant would have a viable option of applying for entry clearance, that Eritrea currently imposes exit restrictions on those of eligible military age."
A summary of the claim
The burden and standard of proof
The documentary evidence before us
(i) the SEF and statement of 15 January 2001 (Annex E);
(ii) the second statement of 28 June 2004 (Annex F);
(iii) the appellant's bundle, paginated 1 to 360;
(iv) the appellant's statement of 14 February 2005 (pages 1-3 of the appellant's bundle);
(v) the statement of MO of 14 February 2005 (pages 6 to 7 of the appellant's bundle);
(vi) the skeleton argument with additional background material;
(vii) the amended skeleton argument (running to some 23 pages) with additional background material;
(viii) the October 2005 COI Service report from the Home Office Science and Research Group;
(ix) the Eritrea OGN v. 4.0 issued 21 November 2005;
(x) case law, including IN (Draft evaders – evidence of risk) Eritrea CG [2005] UKIAT 00106; KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165; SS (ILR, Article 8, return)Sri Lanka
[2004] UKIAT 00126 .
The appellant's claim to be at risk in Eritrea
(i) he is of mixed ethnicity;
(ii) he will be perceived as an Ethiopian;
(iii) he is a member of a particular social group, namely, family members of parents of mixed ethnicity;
(iv) his perceived political opinion as anti-Eritrean and pro-Ethiopian;
(v) his perceived political opinion based upon the political beliefs of his father;
(vi) as a returned asylum-seeker of draft age, he will be perceived as a draft evader with the imputed political opinion as one who is opposed to the current Eritrean government;
(vii) as a person who refuses to perform military service, he will be similarly viewed as opposing the regime.
"In summary, the appellant claims a fear of persecution… from the Eritrean authorities… because his father was an opponent of the regime (as an army officer during the Derg regime and thereafter as an active member of the Eritrea Liberation Front (Revolutionary Council) and/or his father fought against the EPLF for fifteen years)( in consequence of which the authorities will attribute to him the political beliefs of his father), he is of mixed Eritrean/Ethiopian ethnicity (he will be seen as pro-Ethiopian and a spy in particular in light of the rising tensions between the two countries), he is a returned asylum seeker of draft age and he refuses to perform military service in consequence of which he will be perceived as a draft evader and imputed a political opinion opposed to the regime. Suspicions that he is a traitor and an opponent of the regime will be aroused because he is a returned asylum-seeker of draft age. As such he will be perceived to be a draft evader and therefore anti-government. He will be suspected of disloyalty and imputed a political opinion opposed to the regime. He will be arrested, detained and interrogated about his past and background. Family members of political opponents are targeted for arrest, detention and harassment. The government often uses national service as retribution for perceived criticism of government policies. The appellant is at particular risk because: his family did not vote in the independence referendum; they did not contribute financially to the Eritrean Government whilst living abroad; he did not return to Eritrea during the border war or thereafter; he is part Ethiopian, grew up in Ethiopia and speaks Amharic; whilst an army officer during the Derg regime his father was based in Asmara; his father fled Eritrea upon liberation; his father was an active member of the ELF (RC) and was arrested by the Ethiopian government in 1992 (the EPRDF was sympathetic to Eritrean nationalist aspirations) and Prime Minister Meles Zenawi was a former ally of the EPLF leader, his whereabouts is unknown; his father had fought against the EPLF for fifteen years; individuals who were in Ethiopia and are now in Eritrea would know about his family, his mixed race and his father's position in the Derg regime; he is of draft age (currently twenty-one years old); he will be a returned asylum seeker; he will be perceived to be a draft evader; he will refuse to perform military service."
The appellant's evidence
The Tribunal's analysis of the appellant's claim
Our conclusions on the facts
The refusal to perform military service and the risk on removal to Eritrea
"In November 1991 the new EPLF government issued regulations to make national service compulsory for all citizens. The first intake of national service was in 1994 and it continued in staged phases since then. Under the revised national service regulations of 23 October 1995, national service is compulsory for all citizens aged between 18 and 40 years, male and female. It consists of six months of military training (performed at Sawa military training centre near Tessenei in western Eritrea) and 12 months of 'active military service and development tasks in military forces' under Ministry of Defence authority. It extends to military reserve duties up to the age of 50. It may be continued under 'mobilisation or emergency situation directives given by the government' ".
The same report provides that the legal penalty for evading conscription or assisting evasion is two years-imprisonment but in practice offenders are punished administratively by local commanders without any form of trial, legal recourse or opportunity for appeal or redress. The forms of punishment consist of torture and arbitrary detention for an indefinite period. Although these punishments are unlawful and an abuse of human rights, they are well-known to government and military officials and the public, and no army officer has ever been punished for employing them.
"3.7.8 Conclusion. If it is accepted that the claimant is of military service age, has previously received call-up papers and left the country having refused to undertake military service or has undertaken military service or training but has escaped, then it is likely that they will be of due interest to the authorities. As the Government effectively views those who evade service or desert from the military as political opponents, the treatment by the authorities of individuals known to have deserted or evaded military service is likely to amount to persecution under the terms of the Convention. The grant of asylum in such cases is therefore likely to be appropriate.
3.7.9 Nevertheless, an individual of military service age is not automatically viewed as an evader or deserter simply because they fall within the age range. If the claimant is of military service age but has not received call-up papers, has not previously received any other direction to undertake military service, has completed their military service or has not previously come to the adverse attention of the authorities, then it is unlikely that they will be of undue interest to those authorities. Similarly, if someone falls within an exemption from the draft, is outside the age for military service or has been eligible for call-up over a significant period but has not been called up there would be no perception by the authorities of draft evasion. Such claimants are unlikely to encounter ill treatment amounting to persecution within the terms of the Convention. The grant of asylum in these cases is therefore not likely to be appropriate.
3.7.10 Claimants who present an objection to military service on religious grounds (see 3.6 above), would be subjected to ill-treatment amounting to persecution within the terms of the 1951 Convention as a result of these beliefs and should be granted refugee status."
(b) The Tribunal confirmed the view taken in IN that persons who would be perceived as draft evaders or deserters faced a real risk of persecution as well as treatment contrary to Article 3.
(c) The Tribunal continues to take the view that returnees generally are not at real risk of persecution or treatment contrary to Article 3. It did not consider that failed asylum seekers would be regarded by the Eritrean authorities as traitors and ill treated in consequence.
(d) The Tribunal continues to reject the contention that persons of eligible draft age are by that reason alone at real risk of persecution or treatment contrary to Article 3.
(f) Subject to the remarks set out in sub-paragraph (e), persons of eligible draft age (defined in the context of return as being between 18 and 50 for men and 18-40 for women) were currently at real risk of persecution as well as treatment contrary to Article 3 unless:
(i) They can be considered to have left Eritrea legally.
(ii) They have not been in Eritrea since the start of the war with Ethiopia in 1998 (that being the year when the authorities increased dramatically the numbers required for call up and took the national service system in a much more authoritarian direction) and are able to show that there was no draft-evasion motive behind their absence.
(iii) They have never been to Eritrea and are able to show that there was no draft-evasion motive behind their absence. If they have not yet obtained formal nationality documents, there is no reason to think they will be perceived as draft-evaders.
(g) Nevertheless, even those of draft military age who would not be considered at real risk of serious harm (because they come within (i) or (ii) or (iii)) would still be at such a risk if they hold conscientious objections to military service.
(h) Otherwise, the Tribunal did not consider that mere performance of military service gives rise to a real risk of persecution or treatment contrary to Article 3.
Our conclusion on the risk on removal
The appellant's Article 8 claim
The Article 8 claim and whether there are insurmountable obstacles preventing the family's return
"… the position is not sufficiently clear in respect of a person who cannot demonstrate their ties to Eritrea. Having never lived in the country or even visited, the appellant would be at a significant disadvantage."
The Adjudicator makes no express finding that MO would fail but confined herself to the comment that MO would be disadvantaged.
The Article 8 claim and whether there is a viable option of applying for entry clearance
"If the established rule is to the effect - as it is - that a person seeking rights of residence here on grounds of marriage (not being someone who already enjoys a leave, albeit limited, to remain in the UK) must obtain an entry clearance in his country of origin, then a waiver of that requirement in the case of someone who has found his way here without an entry clearance and then seeks to remain on marriage grounds, having no other legitimate claim to enter, would in the absence of exceptional circumstances to justify the waiver, disrupt and undermine firm immigration control because it would be manifestly unfair to other would-be entrants who are content to take their place in the entry clearance queue in their country of origin."
The impact of military service on the Article 8 claim
"…there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening."
Similar expressions were used by Buxton LJ in the Court of Appeal in Batayev No 2 [2005] EWCA Civ 366 in which he said at paragraph 5
"…significant evidence must be given of conditions in the systems that are universal, or very likely to be encountered by anyone who enters that system."
The Hariri test should not be taken as assimilating real risk to probability. Such was the unanimous view of the Court of Appeal in Batayev No 1 [2003] EWCA Civ 1489 as observed by Munby J in Kpagni [2005] EWHC 881 at paragraph 8.
"However, the appellant in this case must have been fully aware that when he entered upon this marriage that he might have to serve such a period of imprisonment upon return to Turkey. And there is no reason to think that whilst the appellant is in prison the couple cannot maintain some degree of contact through prison visits and correspondence. Although prison conditions in Turkey are plainly not the same as in the United Kingdom, it is noteworthy that the court in Strasbourg has never seen, save in very exceptional circumstances, any disproportionate interference with the right to respect for private and family life to arise from the separation of the family caused by service of a lawfully imposed punishment."
Conclusions
Delay
DECISION
The original Tribunal made a material error of law.
On reconsideration, we reach the same conclusion as the original Tribunal though for different reasons:
The appeal is dismissed on asylum grounds.
The appeal is dismissed on human rights grounds.
ANDREW JORDAN
SENIOR IMMIGRATION JUDGE