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Cite as: [2006] EWCA Civ 48

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Neutral Citation Number: [2006] EWCA Civ 48
Case Nos: C5/2005/1652
C5/2005/1815

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ASYLUM AND IMMIGRATION TRIBUNAL
(Tribunal Appeal Nos. CC50137-2003 and HX/34056/2003)

C5/2005/1815
Royal Courts of Justice
Strand, London, WC2A 2LL
08 February 2006

B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE RICHARDS
and
MR JUSTICE COLERIDGE

____________________

Between:
Abreham Gebrenous Ariaya
Appellant
- and -

Secretary of State for the Home Department
Respondent

And between:


Sirak Sammy
Appellant
- and -

Secretary of State for the Home Department
Respondent

____________________

Mr Christopher Jacobs (instructed by White Ryland) for the Appellant Ariaya
Miss Victoria K Quinn (instructed by White Ryland) for the Appellant Sammy
Miss Susan Chan (instructed by The Treasury Solicitor) for the Secretary of State
Hearing date : 12 January 2006

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Richards :

  1. These two appeals from decisions of the Asylum and Immigration Tribunal were listed for hearing together because they both concern claims to asylum and humanitarian protection by citizens of Eritrea who contend that they would be at risk as a perceived draft evader or deserter if they were returned to that country. In each case the tribunal dismissed the appellant's appeal from an adverse decision by the Secretary of State; and in each case permission to appeal to this court was refused by the tribunal but was granted on the papers by Neuberger LJ.
  2. The context: relevant tribunal decisions

  3. The cases fall to be considered against a background of very real and growing concern about the treatment of those who, on return to Eritrea, are perceived by the authorities to be draft evaders or deserters. To provide the requisite context, it is helpful to look first at a sequence of tribunal decisions on the subject.
  4. MA (Female draft evader) Eritrea CG [2004] UKIAT 00098 was a country guidance case the decision in which was notified on 4 May 2004. The appellant was a young woman who claimed to fear persecution and ill-treatment contrary to article 3 of the European Convention on Human Rights on the ground that if she were returned to Eritrea she would be perceived as a draft evader. The tribunal referred to objective evidence concerning ill-treatment of those perceived as draft evaders. Of particular concern was the fate of a group of asylum seekers detained following their deportation from Malta to Eritrea in 2002. The women and children within the group, and those over the age of 40, had been released after some weeks, but the rest had been kept in indefinite detention without charge or visits and in conditions that were described as including forced labour, beatings, torture and a lack of medical care, food or sanitation, leading to disease and in some cases death. The tribunal concluded that the there was a real risk that the appellant would be subjected to the same treatment as those deported from Malta and that her rights under article 3 would be breached. It did not consider, however, that her treatment would amount to persecution within the Refugee Convention, since there was no evidence that her illegal exit from the country and her failure to respond to her call-up papers would lead to any political opinion being imputed to her.
  5. SE (Deportation Malta 2002 General Risk) Eritrea CG [2004] UKIAT 00295 was a further country guidance case, the decision in which was notified on 29 October 2004. It examined whether the appellant would be at risk either as a female draft evader or as a mere returnee. In relation to both issues it looked closely at the effect of MA. On the issue of draft evasion the tribunal found against the appellant for two main reasons: first, because "[i]f there is no evidence that the authorities have taken steps to call someone up, over a significant period of time during which such a person was eligible, it is hard to accept that they would classify him or her as an evader the first time they came into contact with such a person" (para 14), and secondly, because the appellant had failed to establish that she left Eritrea illegally and it could not be concluded that the authorities on her return would view her as someone who had left in circumstances designed to avoid compliance with her duty to perform military service.
  6. On the issue of risk as a mere returnee, the tribunal held that MA was not intended to establish that all returnees to Eritrea were at risk and found that the objective evidence before it did not compel a conclusion that returnees generally were at risk. That evidence again included the fate of the Maltese returnees, the problems relating to whom were said by the tribunal to be linked closely with the perception of the Eritrean authorities that they were draft evaders or deserters.
  7. In GY (Eritrea Failed asylum seeker) Eritrea [2004] UKIAT 00327, a reported decision notified on 30 December 2004, the tribunal held that SE had correctly identified the limit of the scope of MA and accepted that the ordinary failed asylum seeker was not generally at risk.
  8. NM (Draft evaders evidence of risk) Eritrea [2005] UKIAT 00073 was a reported decision notified on 22 March 2005. Its status and effect are central issues in the appeal in Ariaya. The appellant was a 33 year old woman who had left Eritrea in 1991. Her father had been a member of the ELF and she had fled the country when he was arrested and detained. The tribunal found that the upper age limit for military service, for men and women, was 40. It referred to the background evidence of torture and mistreatment of army deserters and draft evaders. It described the means adopted to enforce conscription and recited the fate of the Maltese returnees and a similar experience suffered by a number of Eritreans deported from Libya in July 2004. The tribunal continued:
  9. "14. The Tribunal is satisfied and the evidence put before us is clear that at present in Eritrea those who are suspected of evading and refusing conscription are at risk of ill treatment and torture.
    15. The issue in this appeal is whether there is a real risk that the appellant would be suspected of being a draft evader. In normal circumstances it might be argued that someone who had been out of the country for many years and had not been summoned for military service would not be at risk. However, it is clear from the background evidence that the situation is normal in Eritrea so far as the government's attitude towards military service is concerned. There is political impetus to enforce military service as part of the reconstruction of Eritrea and a failure to perform it is seen as disloyalty to the authorities. 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 was 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.
    16. On the evidence as it stands at present, the Tribunal is satisfied that there is a reasonable likelihood that this appellant might be at risk. It is not just a case of her being a returnee of draft age. She may be additionally vulnerable because of her family's political history, the Adjudicator having accepted that her father had been a member of the ELF. Looking at the appellant's circumstances in the light of the current background evidence the Tribunal find that there is a real risk that she will be perceived as a draft evader leading to a risk of detention and ill-treatment.
    17. There is further evidence before us which was not before the Tribunal in MA. We are satisfied that being perceived as a draft evader does carry political connotations in the eyes of the Eritrean authorities to the extent that the appellant would be at risk of serious harm for a Convention reason, her perceived opposition to the current government. These findings distinguish this case from the position on SE which primarily dealt with the issue of risk for returnees as such."
  10. IN (Draft evaders evidence of risk) Eritrea CG [2005] UKIAT 00106 was a country guidance case. The decision was notified on 24 May 2005 and therefore post-dated the tribunal's decision in Ariaya. However, it was issued soon before the decision in Sammy and was referred to in that decision; and it plays an important part in the submissions before this court in Sammy in particular. In IN the tribunal looked in considerable detail at the up to date objective evidence, including that relating to the Maltese and Libyan returnees and to a further group of four returnees from Djibouti who were reported to have been detained without charge. It observed that the state of the evidence as it was before the tribunal in MA, SE and GY already contained some worrying features, but that the further evidence before the tribunal in IN reinforced and significantly increased its concerns. It concluded (para 44):
  11. "44. 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 . 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 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."
  12. That guidance has recently been updated in KA (draft-related risk categories updated) Eritrea CG [2005] UKAIT 00165, a country guidance decision promulgated on 25 November 2005 (and therefore well after the decisions in both Ariaya and Sammy). In its summary of conclusions in KA (para 113), the tribunal said that it continued to take the view that returnees generally are not at real risk of persecution or treatment contrary to Article 3 (sub-para (c)), and also 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 (sub-para (d)). It considered that the eligible draft age in the context of return had been extended to 18-50 for men but remained 18-40 for women. Subject to certain points about women, the tribunal considered that returnees of eligible draft age were currently at risk of persecution and treatment contrary to article 3 unless (sub-para (f)):
  13. "(i) they can be considered to have left Eritrea legally. Regarding this subcategory, it must be borne in mind that an appellant's assertion that he left illegally will raise an issue that will need to be established to the required standard. A person who generally lacks credibility will not be assumed to have left illegally. We think those falling into the "left legally" subcategory will often include persons who are considered to have already done national service, persons who have got an exemption and persons who have been eligible for call-up over a significant period but have not been called up. Conversely those falling outside this subcategory and so at risk will often include persons who left Eritrea when they were approaching draft age (18) or had recently passed that age; or
    (ii) they have not been in Eritrea since the start of the war with Ethiopia in 1998 and are able to show that there was no draft-evasion motive behind their absence. This subcategory reflects our view that the authorities would know that persons who left Eritrea before the start of the war would not have had draft evasion as a possible motive; or
    (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."
  14. The decision in KA concluded with a salutary reminder that every decision must be based on an assessment of the facts of the individual case (para 113(i)):
  15. "We reiterate the point made in IN that the guidance given here is not intended to be applied abstractly: it remains that each case must be considered and assessed in the light of the appellant's individual circumstances. It may be, for example, that a person who is of eligible draft age, at least if he or she is still relatively young, will not need to establish very much more. However, we think that in all cases something more must be shown. It would be quite wrong, for example, for someone who in fact has obtained an exemption from military service, to succeed simply on the basis that he has shown he was of eligible draft age. Persons who fail to give a credible account of material particulars relating to their history and circumstances cannot easily show that they would be at risk solely because they are of eligible draft age."

    The facts in the case of Ariaya

  16. The appellant Ariaya arrived in the United Kingdom in September 1996 and claimed asylum. The claim has a lengthy procedural history. The Secretary of State refused the claim in November 1996. An appeal to an adjudicator was dismissed in May 1997, but that decision was eventually quashed. A different adjudicator heard the matter afresh and dismissed the appeal in April 2004. The Immigration Appeal Tribunal, as it then was, granted permission to appeal. The appeal was heard by the tribunal on 17 January 2005 and the tribunal's decision was notified on 29 April 2005, by which time the tribunal had become the Asylum and Immigration Tribunal.
  17. The only issue before the tribunal was whether the adjudicator had properly considered the appellant's claim that as a perceived draft evader from Eritrea he would be at real risk of ill-treatment if returned there. The tribunal said that it was by no means clear that the specific issue was argued before the adjudicator, but it appeared that it was an issue in the adjudicator's mind and the tribunal was prepared to proceed on the basis that there was an error of law in his approach because he failed to explore the issue fully. However, the tribunal came to the conclusion that even if the adjudicator had fully considered the issue he would have reached the same conclusion that the appellant was not at real risk.
  18. The tribunal rejected a submission that return of someone of military service age would in itself give rise to a real risk. It referred to para 22 of SE, where the tribunal had concluded that the objective materials did not establish a real risk for returnees generally. It continued:
  19. "38. It is worth pausing to consider the chronology in this case as has been established by the Adjudicator. The appellant was born on 16 November 1971, which makes him currently aged 33. During the 1990s, when he was in his 20s, the appellant was living in Eritrea and had no problems with the authorities. He left Eritrea in 1996 when he came to the United Kingdom and made a claim for asylum. At this stage he was aged nearly 25, and well into the prime years for call-up. There is no evidence that he was ever called up. There is no evidence that he left the country because he was avoiding the draft. Although the Adjudicator had the evidence before him about the national service document, and we confess we are not clear whether that related to Eritrea or Ethiopia, he made no finding as [to] whether or not the appellant had actually completed his military service. On that aspect of the case the appellant's evidence was that he did not want to return to Eritrea because he objected to performing military service. There was no record that he gave evidence that he deliberately evaded the draft and feared the authorities on this account. We proceed on the basis therefore that he had not been called up and that he did not leave Eritrea to avoid the draft. His own evidence simply does not support any alternative conclusion.
    39. We reject Mr Jacobs' submissions that we should not follow the case of SE in determining the risk to this appellant. There is nothing in the evidence to which Mr Jacobs had referred us which persuades us, any more than it did the tribunal in SE, that there is a general risk to returnees generally in Eritrea who are of draft age. We do think it significant that in both the Maltese and the Libyan cases the returnees were identified as a group of draft evaders or deserters, certainly for the most part. Although the tribunal in SE did not have the evidence of the Libyan incident before them, we cannot see that the circumstances of those returnees were in any way different from the Maltese returnees. They were still identified as a group in this category. We do therefore distinguish this appellant on the basis that he would not be returned as someone identified as a draft evader either by the returning authorities or by the returning authorities or by the Eritrean authorities."
  20. The tribunal considered a letter dated 16 December 2004 from UNHCR which sought to explain the January 2004 UNCHR position paper considered at para 25 of the decision in SE. The tribunal's view was that the letter did not properly engage with the comments in that paragraph and that in any event the UNHCR maintained its advice that applications should be considered on a case by case basis taking account of all the individual circumstances. Finally, the tribunal stated:
  21. "42. In conclusion, therefore we see no reason to part from the findings in SE that the ordinary failed asylum seeker returning to Eritrea is not generally at risk. We are conscious of course that there is an added factor in this case while the appellant remains of draft age however, again, there is nothing in the objective material to which we have been referred to by Mr Jacobs which persuades us that because he is in this age category he is at risk of being targeted on return. In the absence of evidence that he has actually evaded the draft or left the country for that reason, there is no real risk established."
  22. It therefore dismissed the appeal.
  23. The challenge to the tribunal's decision in Ariaya

  24. The first ground of appeal to this court is that the tribunal erred in failing to follow or have regard to the decision in NM, a case which had been heard 4 days before the hearing in Ariaya and the decision in which was issued over a month before the decision in Ariaya. The submissions advanced by Mr Jacobs can be summarised as follows:
  25. i) NM was a reported decision. It did not have the status of a starred decision or country guidance case and was not binding, but sound reasons were required for declining to follow it. The categorisation of cases as reported or unreported derived from the Immigration Appeal Tribunal's Practice Direction No.10, in which the tribunal stated that from 19 May 2003 it was ceasing the practice of reporting all its determinations (see now part 18 of the Asylum and Immigration Appeal Tribunal's Practice Directions 2005). Note 3 to Practice Direction No.10 stated that determinations would not be reported if in the tribunal's view they contained no new principle of law or matter of real and generally applicable guidance, and no assessment of facts of such generality that others ought to have regard to it. It is submitted that the tribunal should have followed NM because it contained generally applicable guidance and should at least have considered it so as to ensure consistency in decision-making.

    ii) NM was not to be treated as simply a case on its own facts, and para 44(iii) of IN (quoted above) is not to be read as a finding that it is to be so treated. NM would not have been reported had it been so limited.

    iii) NM modified (and indeed made a radical departure from) the decision in SE, in which the tribunal had not considered objective material concerning the Libyan deportees although that incident had occurred two months previously. NM is authority for the proposition that all returnees of draft age who are capable of being perceived as having left Eritrea to avoid the draft would be at risk on return: there will be some returnees of draft age who could not be perceived as draft evaders, for example because they could show that they had been demobilised or were exempt, but those of draft age not falling into such exceptional categories would be at risk.

    iv) It was therefore an error for the tribunal to determine the case on the basis of an out of date case, SE, rather than to follow NM. If it had had regard to NM, it is possible that it would have allowed the appeal notwithstanding the existence of factual points of distinction between the appellant in Ariaya and the appellant in NM.

  26. In my judgment those submissions seek to give NM a significance that it does not have. It is not a country guidance case and does not purport to give general guidance, or to modify or depart from SE, on the question whether a returnee would be perceived as a draft evader. The tribunal in IN was right to say that NM should not be treated as authority for the proposition that all returnees of draft age are at risk on return and to point out that the decision was based both on a finding of fact that the appellant would be regarded as a draft evader and on an additional element in the appellant's particular background (the fact that her father had been a member of the ELF) which might put her at risk on return.
  27. I think it likely that NM was reported not for the finding in para 16 that the appellant might be perceived as a draft evader, but for its findings in para 17 (based on further evidence which was not before the tribunal in MA) that being perceived as a draft evader carried political connotations in the eyes of the Eritrean authorities, so that the appellant would be at risk of serious harm for a Convention reason, namely perceived opposition to the current government. That was the significant new point in the case. It was subsequently picked up in the conclusions in IN, at para 44(v).
  28. Whatever the reason for reporting NM, it was not a decision that the tribunal was bound to follow when deciding Ariaya and it did not lay down any relevant principle to which the tribunal was bound to have regard, whether in the interests of consistency or otherwise. The tribunal was entitled to follow the guidance in SE, which was the most recent country guidance case. It did so only after considering the up to date objective evidence, including the evidence concerning the Libyan returnees which had not been considered in SE, and giving a reasoned explanation of why that did not alter the position. In the light of the appellant's particular circumstances, assessed in the light of the objective evidence, it considered whether he would be perceived as a draft evader on return. I can see no legal error in that approach.
  29. In his skeleton argument Mr Jacobs engaged in a detailed analysis of findings in Ariaya which were said to be in fundamental conflict with those in NM. For the reasons I have given, I do not consider such a comparison with NM to be a useful or appropriate exercise. In the course of his analysis Mr Jacobs also made various submissions on the merits of the case. For example, he submitted that the appellant would be unable to demonstrate to the authorities on return that he had not been called up before he left the country in 1996. Arguments of that kind have no place in an appeal on a point of law unless they can be deployed in the form of a challenge to the rationality of the decision. But this ground of appeal is not expressed as a Wednesbury challenge. In any event the tribunal's conclusion that the appellant would not be identified on return as a draft evader was based on a careful examination of the appellant's circumstances (including the fact that he left Eritrea when he was aged nearly 25, well into the prime years for call-up, yet he had not been called up and he did not leave Eritrea in order to avoid the draft) and was in my view a conclusion reasonably open to it on the evidence.
  30. I would add, by way of rejection of another of Mr Jacobs's submissions, that the tribunal was clearly engaging there with the question whether the appellant would be perceived as a draft evader. The whole basis of the decision was that the adjudicator had erred in law by failing to consider the risk to the appellant as a perceived draft evader, but the tribunal had come to the conclusion that the adjudicator would have reached the same conclusion that the appellant was not at risk even if he had fully considered that issue (see para 34 of the tribunal's decision).
  31. The second ground of appeal takes issue with the reasons given by a Senior Immigration Judge for refusing permission to appeal from the tribunal to this court. Those reasons referred to MA, SE, NM and IN, commenting inter alia that the findings in NM could be distinguished from SE and stating that "these cases reflect differing approaches to a similar problem. Often it is important to be case specific as was the Tribunal in this case."
  32. I need make only three observations on this ground. First, it is misconceived. The decision under challenge is the tribunal's substantive decision dismissing the appellant's appeal, and the focus must be on the reasoning in that decision rather than in any subsequent refusal of permission to appeal from it. Further, the Senior Immigration Judge's refusal of permission to appeal has been superseded by the grant of permission by Neuberger LJ.
  33. Secondly, in so far as the ground relies on NM, it adds nothing to the matters I have covered already under the first ground.
  34. Thirdly, in so far as it seeks to rely on IN, it faces the difficulty that IN was issued after the date of the decision in Ariaya and took into account additional objective evidence. Moreover the conclusions in IN are distinctly unhelpful to the appellant, both for what is said about the status of NM, which I have already considered, and for what is said in para 44(ii) that "[i]f 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". The finding on the facts in Ariaya that the appellant would not be perceived as a draft evader is consistent with that conclusion. Mr Jacobs maintained that the point was not canvassed in argument in IN and was not supported by the evidence in the case; but he would at the very least face an uphill task in seeking to persuade the court to disregard an important conclusion of this kind in a country guidance case and a conclusion which also carries through into the updated country guidance in KA (see para 113(f)(i), quoted above). I shall have further observations to make about back-door challenges to country guidance cases when I come to the appeal in Sammy.
  35. The third ground of appeal is that the tribunal failed properly to consider the objective evidence placed before it. In his skeleton argument Mr Jacobs highlighted the passages in the evidence at which this point was particularly directed. They are drawn from Amnesty International reports dated 19 May 2004, 28 July 2004 and 9 November 2004, and the UNHCR position paper of January 2004 on the return of rejected asylum seekers to Eritrea. The matters covered in them include a description of the regime of compulsory military service operating in Eritrea; the steps taken to round up, arrest and detain people thought to be evading military conscription or to be military deserters, and the ill-treatment suffered by them; and the specific fate of the returnees from Malta and Libya.
  36. It is plain that the tribunal did in fact consider that material, which was at the heart of the argument before it. Although expressed as a failure to consider, this part of the appellant's case is in truth a straightforward Wednesbury challenge, in which it must be shown that the conclusion reached by the tribunal was not reasonably open on the material before it. As already indicated, however, such a case is in my judgment unsustainable.
  37. Mr Jacobs suggested that, since the objective evidence placed before the tribunal in Ariaya was identical to that placed before the tribunal in NM, it must have been unreasonable for the tribunal in Ariaya to reach a different conclusion from that in NM. But that is an obviously bad point, since the individual circumstances of the appellants differed significantly in the two cases: the objective evidence is only one part of the total picture.
  38. For those reasons I take the view that Mr Jacobs has failed to demonstrate any error of law in the tribunal's decision in Ariaya and that the appeal should be dismissed.
  39. The facts in the case of Sammy

  40. The appellant Sammy arrived in the United Kingdom in February 2003 and claimed asylum. The Secretary of State refused the claim in March 2003. An appeal to an adjudicator was dismissed in September 2003. An appeal from that decision to the Immigration Appeal Tribunal was originally dismissed, but the dismissal was subsequently set aside and the matter was reheard. That led to a decision in January 2005 to remit the appeal from the Secretary of State's decision for a fresh hearing so that reasoned findings could be made on whether the appellant was a deserter and what the consequences of his being considered a deserter would be. The matter was heard on 19 May 2005 and proceeded as a reconsideration hearing by the Asylum and Immigration Tribunal under the statutory regime that took effect on 4 April 2005. The tribunal's decision was promulgated on 8 June 2005.
  41. The appellant's case in outline was that he had lived in Eritrea and had worked as a lorry driver, driving between Eritrea and Ethiopia. In February 1997 he became a member of an EDF-RC cell and was told that his main task was to take the organisation's leaflets and magazines secretly from Ethiopia to Eritrea and to pass on any given information. Following the outbreak of war between Eritrea and Ethiopia, at the beginning of 1998, the lorry was requisitioned by the government and he was ordered to drive for the Ministry of Defence. From 10 January 2000 he was drafted for national service but did not do any military training and continued with his job as a driver, receiving reduced pay for his driving because he was now on national service. The war ended in May 2000 when the two countries signed a ceasefire. In January 2002 another member of the appellant's ELF-RC cell was arrested and the appellant tried to flee the country. He was caught by the Eritrean authorities and was detained and ill-treated. He was injured in an incident during his detention and was taken to hospital, where he remained under guard. In September 2002, however, he managed to escape from hospital and eventually reached the town of Tesenei. He found the border nearly sealed and fully of Eritrean soldiers. He went into hiding in the surrounding farm area at Aligidir for over three months. He then found a person who agreed to take him to Sudan, from where he went to Kenya, South Africa and then the United Kingdom.
  42. The original adjudicator had made a number of adverse credibility findings, including a finding that the appellant's account of escape from detention was not credible, and had rejected the claim based on membership and support of the ELF-RC. Those findings were not in issue on the reconsideration.
  43. On the reconsideration the tribunal made its own finding, for a number of reasons, that the appellant was not a reliable witness. In para 31 it said that if, as the appellant stated, he had been arrested in January 2002 when trying to leave the country while he was a serving soldier, he would have been returned to his unit and would have been questioned about his desertion and have been liable to administrative punishment by his local commander. It pointed out inter alia that in none of the appellant's accounts had he stated that he was even questioned about having deserted from the army.
  44. The tribunal went on to consider the evidence of demobilisation from the army:
  45. "32. Notwithstanding the fact that the UNHCR paper dated January 2004 contains a passage to the effect that in practice military and development service has become indefinite and no meaningful demobilisation has taken place so far, nonetheless it is clear that some demobilisation has taken place. Paragraph 5.65 of the Eritrea report mentions a statement by Europa 2005 that in May 2002 a US$60m. credit was approved by the World Bank to contribute to the demobilisation of 200,000 soldiers. Under a pilot phase, which concluded in June 2002, more than 5,000 soldiers, including 3,600 women were demobilised. Furthermore the Appellant himself spoke about demobilised fighters. In cross-examination he said that his reference to Aligidir being a government farm was a reference to a farm given by the government to those fighters who were demobilised. Subsequently he sought to suggest that he meant fighters who had been demobilised prior to the war with Ethiopia. In our view fighters who had been demobilised is a more apt description of those who had fought in the war rather than those who had been demobilised at an earlier stage. Furthermore the Appellant's suggestion that they had been demobilised at an earlier stage fits ill with the statement in his witness statement dated 20th February 2003, that when the border war began the Eritrean authorities started forcibly recruiting people in their thousands and recalled all of the EPL fighters and other people who had completed their national military service to join the military on the front lines and fight against Ethiopia.
    33. Although Miss Quinn suggested that those who were most useful would be the last to be demobilised we have to have regard to the circumstances of the Appellant's military service. Mr Mohamed, who claimed to be a lorry driver working for the army, claims that he was recruited into the army in 1999 having been a lorry driver in the same position as the Appellant. He claims that he completed military training and then was allocated to Asmara with other lorry drivers. The Appellant on the other hand was not recruited into the army initially but worked for the Ministry of Defence in what could be considered a civilian role since he continued to be paid his salary. He claims that it was only on 10th January 2000 that he was told that he must undertake compulsory military service. In his statement dated 1st August 2003 he claimed that he did not do any military training but merely continued with his job as a driver. During the course of the hearing the Appellant explained that his duties were to take men and supplies to the front line and bring wounded men back. The Appellant agreed that the duties that he had described did not continue beyond the end of the war. He stated that he was used when the war ended when the military moved from place to place. We take the view that once the war ended the Appellant's services were not required to the same extent as they had been previously. He was of no value as a fighter as he had not been given any military training whatsoever. The Appellant himself has not described being involved in any developmental projects. In these circumstances we are not satisfied that he would have been one of those persons of most use to the army and for this reason would not have been demobilised."
  46. In para 34 the tribunal said that if the appellant had been a deserter "he would not have hidden for three months or so in an area where there was a high concentration of soldiers, waiting for them to move on, nor on a government farm peopled by demobilised soldiers". It also pointed to various other discrepancies in the appellant's account. A further discrepancy was identified in para 35.
  47. In the light of those considerations the tribunal reached the following conclusion on the question whether the appellant would be perceived as a deserter:
  48. "36. We accept the evidence of the Appellant that he has performed compulsory military service. We reach this conclusion not only because of the evidence of the Appellant, which we accept as being true in this regard, but also because having regard to the objective evidence it would be surprising, given his age, if he had not already performed such service. We are not satisfied, however, that the Appellant is a deserter. We take the view that he has been demobilised from the army for the reasons given above.
    37. The Appellant has clearly been able to obtain photographs from his uncle in Eritrea which confirm his military service in 1999. In these circumstances we take the view that he should be able to obtain documentary proof of the fact, as we find it to be, that he has been demobilised from the army. We draw the inference from the attitude of the Eritrean authorities to military service that [a] person who had been demobilised would be provided with discharge papers. In these circumstances the Appellant would be able to demonstrate on return that he was not a deserter or draft evader. In these circumstances we are not satisfied that the Appellant would be at risk of serious harm under either Convention."
  49. Having expressed that conclusion, the tribunal went on to state that since the date of the hearing the tribunal's decision in IN had been published. It set out passages from the summary of conclusions in para 44 of IN and continued:
  50. "39. This does not cause us to change our view nor do we consider it necessary to reconvene the hearing since we take the view that our conclusion is in accordance with the determination of the IAT in IN (Draft evaders evidence of risk) Eritrea CG, which does not permit it to be suggested that, notwithstanding that the Appellant has performed military service, he would be perceived as a draft evader on return because he is of draft age. Although the issue of whether the Appellant would be at risk as a failed asylum seeker did not form part of the remittal IN (Draft evaders evidence of risk) Eritrea CG is also authority for the proposition that the Appellant would not be at risk on return simply as a failed asylum seeker."
  51. It therefore dismissed the appeal to the tribunal on both asylum and human rights grounds.
  52. The challenge to the tribunal's decision in Sammy

  53. The first ground of appeal is that the tribunal erred in law in finding that the appellant had not deserted from the army. Miss Quinn's submissions, elaborated in her skeleton argument rather than orally, can be summarised as follows:
  54. i) The whole thrust of the objective evidence was that the government had decided not to effect demobilisation. The only objective evidence of demobilisation actually having taken place was contained in para 5.65 of the April 2005 CIPU assessment, which referred to the demobilisation of only 5,000 soldiers, including 3,600 women, under a pilot phase which concluded in June 2002. Miss Quinn originally submitted that the appellant would not have been eligible for demobilisation under the pilot phase since he would not have completed the minimum 18 months of compulsory military service until July 2002. She subsequently corrected this, however, acknowledging that the minimum 18 months would have been completed in July 2001. Although unable to maintain the submission that the appellant was ineligible for the pilot phase, she could still rely on the point that the number of men demobilised under the pilot phase was only 1,400, an extremely small proportion of the total number of Eritreans carrying out national service.

    ii) The tribunal erred in relation to the demobilised fighters on the farm at Aligidir. The soldiers in question had fought in the earlier war of independence between Eritrea and Ethiopia, which had ended in the defeat of the Ethiopian forces in 1991. Thereafter they had been demobilised. Contrary to the tribunal's view, therefore, it was entirely apt to refer to them as "demobilised fighters" even though they had been demobilised prior to the recent war with Ethiopia.

    iii) The tribunal erred in finding that a lorry driver would be of little value to the army after the ceasefire. The army is expanding year on year, and in the circumstances logistics would remain very important.

    iv) As regards the point that if the appellant had been a deserter he would not have remained for three months in an area where there was a high concentration of soldiers or on a government farm peopled by demobilised soldiers, the tribunal erred in failing to attach any weight to the appellant's evidence that he knew the area well and chose to stay there for that reason.

  55. In my judgment those submissions fall well short of establishing any error of law on the part of the tribunal. It is clear that the tribunal took account of the objective evidence concerning demobilisation, including the evidence concerning the limited pilot phase. The points it made about the demobilised fighters at Aligidir and the reduced requirement for the appellant's services as a lorry driver following the ceasefire, and its view that the appellant would not have stayed where he did had he been a deserter, all depended on an assessment of the evidence. I am not persuaded that in making that assessment it failed to have regard to relevant evidence. Matters of weight were for the tribunal. It gave a reasoned basis for the findings it made. Although the objective evidence shows that very few of those performing military service have been demobilised, it was reasonably open to the tribunal to conclude as it did that the appellant was one of them.
  56. If the tribunal was entitled to conclude that the appellant was not in fact a deserter but had been demobilised, it is accepted that he would not be at risk on return as a perceived deserter or draft evader: no challenge is made to the tribunal's reasoning in para 37 of its decision that he would be able to demonstrate on return that he was not a deserter or draft evader.
  57. By the second ground of appeal, however, it is contended that the tribunal erred in law in failing to find that the appellant would be at risk simply as a failed asylum seeker or as a failed asylum seeker of draft age. Miss Quinn made clear that this ground proceeds independently of the first and accepts as its premise that the appellant would not be perceived on return as a draft evader or deserter.
  58. I have serious doubts whether it is open to Miss Quinn to advance the second ground at all. Para 1 of the tribunal's decision records that in January 2005 the tribunal had remitted the matter for a fresh hearing "so that reasoned findings could be made on whether or not the Appellant was a deserter and what the consequences of his being considered to be a deserter would be". If the order for remittal was limited to that specific issue, it would not be open to the appellant to advance a wider case on the remittal or, as it became, on the reconsideration: see Mogos v Secretary of State for the Home Department (Court of Appeal judgment of 18 January 2006, neutral citation number not yet available, reported in The Times, 25 January 2006). But this point was not the subject of full argument before the court and, regrettably, the order for remittal was not itself before the court, so I would not treat it as conclusive in the particular circumstances.
  59. A further consideration is that para 3 of the tribunal's decision records the following:
  60. "Rule 31(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 empowers the Tribunal to limit submissions or evidence to one or more specified issues in carrying out the reconsideration of an appeal. At the beginning of the hearing we drew the attention of Miss Quinn to these powers and indicated that subject to any submissions that she had to make we were minded to limit the reconsideration to the question for which it was remitted by the Immigration Appeal Tribunal, namely whether or not the Appellant was a deserter and what the consequences of his being considered to be a deserter would be. Miss Quinn was agreeable to the reconsideration being limited in this way. Mrs Morgan [the Home Office Presenting Officer] also agreed that the hearing should proceed in this way."
  61. The tribunal evidently approached the matter on that basis. In para 39, which I have already quoted, it said that the issue of whether the appellant would be at risk as a failed asylum seeker "did not form part of the remittal" and it did no more than refer to IN as authority for the proposition that the appellant would not be at risk on this basis. Had it thought that this was a live issue before it, there can be no doubt that it would have dealt with it more fully.
  62. Miss Quinn told us that para 3 did not accurately record what was agreed on the day of the tribunal hearing, and she pointed to the fact that her submissions to the tribunal, as summarised in the decision, ranged more widely than the issue set out in para 3 and encompassed the risk to the appellant as a failed asylum seeker. If there was an agreement as to the scope of the hearing, the fact that the tribunal allowed Miss Quinn's submissions to range more widely than had been agreed would not in my view negate the effect of the agreement. But that still leaves the question whether the agreed scope of the hearing was accurately recorded in the tribunal's decision or whether there may have been some misunderstanding amongst those present.
  63. In order to allow for the possibility of a misunderstanding I propose to consider the substance of the second ground rather than to refuse to entertain it at all. I can do so relatively briefly.
  64. To summarise her skeleton argument, Miss Quinn's submissions proceeded as follows. The tribunal in Sammy relied solely on IN for the proposition that the appellant would not be at risk as a failed asylum seeker. But the tribunal in IN did not hear argument, and did not engage in detailed reasoning, on the issue of whether a failed asylum seeker of draft age who would not be perceived as a draft evader or deserter would be at risk on return to Eritrea, or on the issue of the general risk for failed asylum seekers. Nor was the tribunal in IN giving country guidance on those issues. The tribunal in Sammy failed to engage with the detailed submissions made on the appellant's behalf with regard to earlier tribunal decisions, in particular SE, and the objective evidence. The only objective evidence before the tribunal detailing the actual experiences of Eritrean citizens removed to Eritrea was the evidence concerning those removed from Malta, Libya and Djibouti. All those removed were detained indefinitely in appalling conditions, save that the women and children and those over conscription age within the group of returnees from Malta were released after some weeks. It is reasonably likely that the appellant, as a failed asylum seeker of draft age, would be subject on return to similar prolonged detention. In assessing the risk for those returning to Eritrea, the tribunal failed to make a distinction drawn in the objective evidence between those who have returned voluntarily under the UNHCR's repatriation programme and those, including failed asylum seekers, who are deported there.
  65. The tribunal should not in my view be criticised for dealing with this issue by cross-reference to IN rather than on the basis of full reasoning of its own, given that on the tribunal's understanding of the position the issue did not even fall for decision by it.
  66. It is true that IN was expressed as a country guidance case on 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" (para 2). But consideration of that issue inevitably called for consideration of the risk to returned asylum seekers generally and in particular those of draft age, and one of the cases reviewed at length was SE "which dealt primarily with whether there was a general risk to all returnees to Eritrea" (para 32). There was detailed examination of the objective evidence and expert reports concerning the treatment of returnees. The tribunal concluded that "[t]he evidence does not support a proposition that there is a general risk for all returnees" and the determinations in SE and GY were confirmed in this respect (para 44(vii)). The fact that a returnee was of draft age engaged the question whether he or she would be perceived as a draft evader but was "not determinative" of that question (para 44(ii)). In my judgment those conclusions were an integral part of the country guidance given.
  67. Miss Quinn's submissions amounted to a challenge to those conclusions. Indeed, they had to embrace the proposition that even the most recent country guidance is in error, given that in KA the tribunal reaffirmed that returnees generally are not at risk and that persons of draft age are not at risk by that reason alone (para 113(c)-(d)). It is pertinent to note the reaction of the Asylum and Immigration Tribunal to a similar attempt by Miss Quinn to challenge the reliability of IN in MY (Country Guidance cases no fresh evidence) Eritrea [2005] UKIAT 00158. The tribunal pointed to the authoritative status given to country guidance cases by para 18.2 of the Asylum and Immigration Tribunal Practice Directions 2005 and in earlier tribunal practice, and stated (para 26):
  68. "Accordingly we reject Miss Quinn's principal submissions. They amount to an impermissible attempt to relitigate country guidance. To permit submissions of this type would be to allow parties to challenge country guidance by the back door in every case. The country guidance system allows for challenge, but it must be through the front door, on the basis, that is, of fresh evidence having a material bearing on the findings of fact which comprise existing guidance."
  69. Similar considerations apply in the present case. The tribunal in Sammy was entitled, indeed required, to follow IN. The objective evidence before it was no more extensive or recent than that in IN and contained nothing that could justify departing from IN. It is not open to Miss Quinn to use a challenge to the decision in Sammy as a back-door means of challenging the guidance in IN. In any event I would have no hesitation in rejection the contention that the considered conclusions of the tribunal, reached in successive country guidance cases after careful examination of the objective evidence, were not reasonably open to it.
  70. Accordingly, even if the second ground is open to the appellant, it does not help him on this appeal.
  71. Conclusion

  72. For the reasons I have given I would dismiss both appeals.
  73. Mr Justice Coleridge:

  74. I agree.
  75. Lord Justice Laws:

  76. I also agree.


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