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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AT (Return to Eritrea, Article 3) Eritrea [2005] UKIAT 00043 (25 January 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00043.html Cite as: [2005] UKAIT 00043, [2005] UKIAT 00043, [2005] UKIAT 43 |
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AT (Return to
Eritrea
– Article 3)
Eritrea
[2005] UKIAT 00043
Date of hearing: 28 October 2004
Date Determination notified: 25 January 2005
| AT | APPELLANT |
| and | |
| Secretary of State for the Home Department | RESPONDENT |
Eritrea
. She appeals against a determination of Adjudicator, Mr P A Spencer, promulgated on 19 April 2004, dismissing her appeal on asylum grounds of appeal against a decision refusing to grant leave to enter.
Eritrea
. Hence the claimant was only entitled to succeed on Article 3 (or asylum) grounds if she could show that removal to that country would expose her to a real risk of treatment contrary to Article 3.
Eritrea
who was suspected of opposition to the government or having evaded military service or deserted from the army would be arrested and possibly subjected to torture or ill-treatment. He concluded such concern was not relevant in this case:
'... this in my view does not apply to the appellant because she has not been required to perform military service'.
Eritrea
. They referred to US State Department Report references to sexual harassment and ages of women in the army. Thirdly they submitted that the Adjudicator should have found she would be at risk simply as a failed asylum seeker. A fourth ground we extract from the draft of the ground is that the claimant would be at heightened risk, being a returnee of mixed ethnicity.
Eritrea
CG [2004] UKIAT 00098. This decision was authority, he contended, for the proposition that all women of (or near) conscription age would be at risk. However, in our view, the President in this decision was careful to confine his findings to (female) persons who would be perceived as draft evaders or deserters. It cannot be said of the claimant in this case that she would be perceived as a draft evader or deserter, since, as the Adjudicator properly observed, she has yet to reach eligible age for conscription purposes.
Eritrea
, they do not identify a consistent pattern of gross, mass or flagrant violations of the human rights of female conscriptees. It is also a relevant factor, in assessing the extent of risk, to bear in mind that it would appear that only a relatively small percentage of women of conscriptable age are in fact called up (the highest figure we can find for persons (male and female) who are conscripted is 10% of the population). We recognise that the claimant in this case has a history of sexual abuse at the hands of Ethiopian authorities, but we do not consider there is sufficient evidence to show that that would increase any risk to her of maltreatment by the Eritrean authorities.
Eritrea
[2004] UKIAT 00295.
'18. We are bound to say we have great difficulty with Mr Linstead's submission on this matter. In the first place, when the Adjudicator promulgated his determination (5 November 2003) MA had not been decided. By virtue of the case judgment in CA [2004] EWCA Civ 1165, save where there is a material error of law, we are not entitled to take into account Tribunal guidelines on country conditions which were not in existence at the time the Adjudicator promulgated is determination. When the Adjudicator dealt with this appeal it could not be said that he was compelled, either by the Tribunal guidelines or the objective evidence before him, to conclude that all returnees were at risk.
19. Secondly, even if we were entitled to test for legal error in the Adjudicator's determination by reference to a subsequent country guideline case, we do not consider MA is or was ever intended to be authority for the proposition that returnees generally are at risk. At paragraphs 6 and 20 the President made very clear that the "real question" he sought to address in this determination was "... the sort of treatment which she would receive as someone who would be identified as a draft evader". We do not think that the resolve to confine the issue to female draft evaders could have been made any clearer than that.
20. As already noted, the objective materials before the Adjudicator when he dealt with this case, albeit they did contain references to and commentary on the 2002 events affecting some 220 Maltese returnees, did not compel a conclusion that returnees generally were at risk. Nor at that time was there any Tribunal or court guidance stating that returnees generally were at risk. Mr Linstead asked us to consider two documents which were not before the Adjudicator or indeed before the Tribunal in MA, the CIPU April 2004 Report and the Amnesty International report May 2004. However, once again by virtue of the Court of Appeal judgment in CA [2004] EWCA Civ 1165, save where there is a material error of law, we are not entitled to take such items of evidence into account, since the came into being after the Adjudicator promulgated is determination (5 November 2003).
21. However in order to furnish guidance on this issue, we will go on to consider whether, even had we taken account of these very recent items of evidence, we would have fund returnees generally to be at risk.
22. Our conclusion is that these materials do not establish a risk for returnees generally. In the first place the problems relating to Maltese returnees were clearly linked closely with the perception by the Eritrean authorities that they were draft evaders or omit deserters. The May 2004 AI Report refers to the Malta deportees as
"mostly armed deserters or conscription evaders" (see p.23)
23. Secondly, even within the group of Maltese returnees, the authorities plainly differentiated on the basis of both sex and age: the May AI Report notes that women, children and those over the conscription age limit of forty years were released after some weeks in Adi Abeto prison.
24. Thirdly, whatever may have been the degree of adverse treatment meted out to the Maltese returnees in 2002, there have been no similar large scale incidents since particularly given that the UNHCR has clearly been monitoring the situation very closely, we consider this lack of repetition very significant. It is true there have been incidents involving returnees since, but these have been very few and in each case they have only involved a very small number of individuals. Furthermore, they have largely been confined to returnees with foreign citizenships. Thus at p.22 of the May 2004 AI report there are references to five cases of difficulties facing Eritreans with foreign citizenships.
25. Fourthly, we find it important to take account of the precise wording the UNHCR position on the Return of Rejected Asylum Seekers toEritrea
" dated 20 January 2004. This letter does state that, in the light of the problems faced by the Maltese returnees "it cannot be excluded that future deportees would face a similar risk", and it goes on to recommend that "states refrain from all forced returns of rejected asylum seekers to
Eritrea
and grant them complementary forms of protection instead". However, it falls short of stating that all returnees face a well-founded fear of persecution; it leaves that issue for assessment based on the need of asylum seekers for international protection. Furthermore "protection is itself is clearly viewed by UNHCR as a broader category than protection under the 1951 Convention or under Article 3 of the ECHR. In addition, the language of this Position paper is that of mere possibility ("... it cannot be excluded that ..."). It is not that of real possibility or real risk.
26. For reasons already given we do not think that the contents of the May 2004 AI Report justify a conclusion that returnees generally are at risk. We would note further that even in this report the position of Amnesty International is not unequivocally that all returnees are at risk. It does appear at pp.25-26 to suggest that anyone the authorities learnt was a failed asylum seeker would be at risk, but the formulation of the list of categories to be at more risk is otherwise more limited.
27. Accordingly, (1) we do not consider that the Tribunal decision in MA was intended to establish that all returnees toEritrea
are at risk; (2) the Tribunal position on this issue before and after this decision remains that the mere fact of being a returnee to
Eritrea
does not mean that someone will face a real risk of serious harm.
28. For the above reasons this appeal is dismissed.'
Eritrea. In addition, even on the claimant's own account she had been inducted into the army without any apparent concerns being expressed or demonstrated as to her mixed ethnicity.