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Cite as:  UKIAT 00165,  UKAIT 00165,  UKAIT 165
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KA (draft-related risk categories updated) Eritrea CG UKAIT 00165
Date of hearing: 21 October 2005
Date Determination notified: 25 November 2005
|Secretary of State for the Home Department||RESPONDENT|
This case, which updates the analysis of risk categories undertaken in IN (Draft evaders evidence of risk) Eritrea CG  UKIAT 00106, gives guidance on several issues. It confirms the previous Tribunal view that returnees are not generally at risk. It reaffirms the view that those who would be perceived as draft evaders or deserters would be at risk. As regards persons of eligible draft age, this decision explains why it is thought that the Eritrean authorities, despite regarding such persons with suspicion, would only treat adversely those who were unable to explain their absence abroad by reference to their past history. Reasons are given for slight modification to certain parts of the guidance given in IN. A summary of conclusions is given at paragraph 113. The decision is also reported for what it says at paragraphs 7-15 about country guidance treatment of issues which go wider than the particular factual matrix of an appellant's appeal.
'Issues for Reconsideration [as directed]
No necessity for oral evidence as grounds have not contested the Adjudicator's findings on credibility.
This case is being set down as a Country Guidance case in which the issues on which the parties are invited to make particular submissions are:
1) Whether the CG case of IN continues to adequately reflect current risk categories
2) Whether someone of eligible draft age but who has not been to Eritrea would fall into a current risk category
The case will not be joined with another.'
'Given that the facts of this case do not match the directions that have been given, I ask that the directions are amended and the first direction is struck out. In a report written by the IAS on Country Guideline cases, IAS was critical of the use of inappropriate cases to determine wider issues. The appellant in this case has no interest in arguing wider issues or presenting country information outside her own case and as the appellant's representative I have no duty to do so. Indeed, I feel that to do so would compromise my overriding duty to my client by allowing the Tribunal to be distracted from the key issues in this particular case and confusing matters by introducing arguments that are irrelevant to my client. If the Tribunal does want to consider wider facts, it would need to link this case with other suitable cases in which those facts do arise.
Should the directions not be amended, I will need to ask that it is clearly recorded in the final determination that the appellant did not present arguments or evidence relating to facts that did not arise in her own case.'
'2.6. It is submitted that this case is not appropriate for designation as a Country Guideline case on issue (1) as identified in the AIT's directions. The facts of IN  UKIAT 00106 are very different to those of the appellant's case and the appellant therefore has no legal standing to advance arguments or evidence relating to those wider issues. Had the AIT wanted to designate this case as a Country Guideline case on issue (1) it would have been appropriate to link it with other cases that raise the issue the AIT has outlined in issues direction (1). Without having taken that step it will hear no argument on those issues nor will evidence be presented to the AIT specifically relating to those issues that fall outside the appellant's case. Issues direction (1) is ultra vires as the AIT cannot direct the appellant to prepare arguments or submit evidence that are not immediately relevant to her case. Rule 45(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 explicitly limits the power to make directions to the conduct of the instant appeal or application.
2.7. In addition, the jurisdiction of the AIT to review IN is questionable. No evidence appears to have come to light to cast doubt on the correctness of the guidance in IN and the respondent has presented no fresh evidence in this case or, as far as the appellant's representatives are aware, in any other case, to dispute those findings (nor any evidence at all in this case). Indeed, the evidence gathered by the appellant relating to her own individual facts which indirectly relate to IN suggests that the situation has deteriorated.'
We also reject Mr Yeo`s submission that we have no jurisdiction to review IN. This is a second-stage reconsideration hearing in which the relevant date for the assessment of risk is the date of hearing before us: see R (Iran)  EWCA Civ 982. Accordingly, we must have regard to any evidence placed before us concerning relevant changes or developments which have taken place in country conditions in Eritrea since the Country Guideline case of IN (as well as to more recent evidence affecting the appellant's individual circumstances). It is only by having regard to such evidence that we can decide whether the appeal before us "depends upon the same or similar evidence" (see April 2005 AIT Practice Directions para 18.2). Only if we were to decide that the country guidance issues in this case do depend upon the same or similar evidence, would we then be required by para 18.2 to continue to treat IN as authoritative in any subsequent appeal so far as it relates to the country guidance issues in question.
" The applicant's statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant's country of origin while not a primary objective- is an important element in assessing the applicant's credibility".
The Appellant's Case
'9. The Appellant's claim is set out in her Asylum Statement, Witness Statement, Further Statement and her evidence.
10. The Appellant had lived with her parents in Saudi Arabia. Her mother died in 1995. Her father worked as a chauffeur for a Saudi family and, after her mother's death, the Appellant was required to undertake domestic duties. She alleges that she was ill-treated and abused. In October 2000, during [sic] her employer's son, Salim, beat her and pushed her with a metal bar. As a result the Appellant had to have a kidney removed. When her father heard what happened, he was angry with Salim. He said that his daughter was not the family's servant and that he would take her with him. They immediately had the Appellant's father deported. The family were saying that she should be deported. The Appellant was scared of this. One of her father's colleagues comforted her. He smuggled her out of the house and took her to his relative's house. He told her that he would send her to a safer place and arranged for an agent to bring her to the United Kingdom.
11. Her father's friend told her that her father was an active member of the ELF and that it was dangerous for him being deported to Eritrea. She could not return to Saudi Arabia because she was smuggled out and left the family. She could not go to Eritrea as she does not know any family member there. She would be drafted to join military service. She could not do this because it is against her religion for men and women to mix. She does not speak the language very well, having left, when she was one.
12. In her witness statement the appellant said that she joined the ELF UK branch in September 2003. She wanted to continue her father's work. She had been told that she had to wait until she was 18 to join. She attends monthly meetings, distributes leaflets and discusses ELF's aims and policies in the community to create awareness. She contributes money. One of the other main reasons she joined was to get some help to find her father. She thought that the organisation could help her.
13. She now only has one kidney. She sometimes has pain and has to take medication. She has had to go Accident and Emergency with kidney pain. She has breathing problems. She has been depressed and on medication.
14. She has achieved ESOL levels 1,2 and 3. She started a GNVQ foundation course in Leisure and Tourism. Her 3 year course finishes in July 2004. She volunteered to work at Oxfam in February 2004. She is a volunteer with the Eritrean Muslim Community Association Supplementary Sunday School.
15. In her further statement she said that the main problem in military service is that men and women have to live together. She has heard accounts of mistreatment of Muslim female recruits by male soldiers. Living in Eritrea would be very difficult as she has not lived there since she was one year old. She only learnt a few words of Tigrinia. Her doctor has told her that she has an allergy and has been referred to the Ear Nose and Throat Department of a hospital in Whitechapel. She also has pain in her back and knees, probably caused by her domestic work in Saudi Arabia.'
'The only evidence relating to her political opinion that has now been put forward, which was not before the Adjudicator [Mr Watkins], is that the Appellant now claims to have joined the ELF in London. There is no evidence from the ELF confirming this membership of her activities in the ELF. The membership card was issued on 15.2.2004. The Appellant said that she joined, when she turned 18 and that the card submitted was a renewal card. She had got rid of the previous card. She said that she attends meetings and hands out leaflets. There is no confirmation of this from the London or national branch. I accept that the Appellant may have taken out membership. I do not find it was taken out before February of this year. I do not find that she is involved at any significant level. I find that becoming a member was an attempt to boost her asylum application. I find it significant that she said one of her 2 reasons for joining the ELF was so that they could trace her father. However she has not made any effort to do so. I do not find that her membership per se at this late stage persuades me that the conditions in Paragraph 334 will be satisfied. I note the previous Adjudicator's reference to a lack of medical report relating to her injury resulting in a loss of a kidney. There is no medical evidence before me.
25. In addition to her alleged fear of persecution on account of her father's political opinions, she suggested that she had a conscientious objection to military service. The Adjudicator [Mr Watkins] found that the Appellant was not within the narrow exemptions in Sepet and Bulbul. Fear of persecution or punishment for desertion or draft evasion does not constitute a well-founded fear of persecution.
26. I do not find that the claim that the Appellant has now put forward is sufficiently different from the earlier claim that there is a realistic prospect of the conditions in Paragraph 334 would be satisfied. I am not satisfied that the Appellant has discharged the burden of proof on her to show that she is entitled to the status of refugee.'
"28. In the case before me the Appellant did not leave her country illegally. She left to live with her parents, who were working in Saudi Arabia. I do not find she has any significant political association. She is not of mixed ethnicity. She is not a draft evader or deserter. I do not find there is a real risk that she would be detained. I therefore find there is no real risk that she would suffer ill-treatment in detention. Her removal would not cause the United Kingdom to be in breach of its obligation under the 1951 Convention."
'7. I have previously said that I would not undertake military service in Eritrea. I am strongly opposed to the idea of mixed military service. It conflicts with my religious beliefs. I feel very strongly that the government is making war for no reason other than to make war it is absolutely senseless and pointless and it achieves nothing. It is as if they enjoy the blood, killing and violence and that is why they do it. I am also extremely concerned about the reports of rapes and abuse in the military. If I had a choice I would certainly not undertake military service. I am not opposed to defending my country, but I cannot agree with the conditions of service and the reasons for fighting. I have thought about this a lot and I do not know how I would react if they force me to do military service. I really strongly object to it and I would like to think that I would refuse but I really do not know what would happen. I know what happens to people who do refuse to do military service.'
(i) the appellant would be returned involuntarily with no Eritrean identity or travel documents;
(ii) she would have no way of proving that she did not leave to avoid military service and her questioners or interrogators may not believe her explanation, for which she has no evidence;
(iii) her failure to return to Eritrea earlier and voluntarily would be interpreted as disloyalty: the skeleton argument stated: '[T]he appellant would have severe difficulty explaining her actions without reference to her actual reasons, which are her concern about her father's political affiliation and her objections to military service on religious and ethical grounds';
(iv) she objects to serving in the military on religious and ethical grounds relating to Eritrean government policy these may come out under interrogation or intense questioning.
(i) return without full travel documents;
(ii) no identity documents, with no way of proving her Eritrean nationality;
(iii) limited grasp of Tigrinya, one of the main languages;
(iv) problematic cultural attitudes she has picked up in the UK, a free democracy, e.g. lack of deference, believing in freedom of expression;
(v) being an unmarried young woman without any male or other relatives to support her or to complain on her behalf: 'Sexual abuse of conscripts is widespread and the appellant would be at additional risk because of the perception of their impunity her isolation would give to potential persecutors";
(vi) in the course of interrogation the appellant's attendance at ELF meetings and at the December 2004 demonstration may also come to light.
The expert reports
The general situation in Eritrea
"1. The human rights situation has worsened with increasing numbers of people being arrested at the university, in churches, or on the street. These individuals have been detained without charge and are kept in secret locations.
2. Since August, the Government has attempted to bring influence to bear on the international community:
(a) In August the Government told the US that it could no longer operate its aid program in the country, despite the fact that there is a major food shortage and the US is the country's largest food aid donor. The order is related directly [to] the US criticism of the political situation.
(b) In August the authorities ordered the UN Peace Keeping force which monitors the border between Eritrea and Ethiopia to cease the flights of helicopters. The Government apparently believes that the international community has not put sufficient pressure on Ethiopia to resolve the dispute.
(c) The above move prompted the UN Security Council to warn both Eritrea and Ethiopia against reigniting the border war, unfortunately the UN`s warning seems to have prompted a statement to the UN by Eritrea that it would defend its territorial integrity.
I am forced to conclude that the authorities in Eritrea continue to pursue narrow political interests, namely staying in power, at the expense of its own citizens and in breach of its own draft constitution. The situation remains tense in the country, individuals suspected of evading conscription and indeed their families members of whom will have previously served in the armed forces are being arrested without warrants, and held incommunicado in secret places of detention. Furthermore, it is clear that the unresolved border war with Ethiopia, which the Government is partly responsible for, is being used as an excuse to maintain conscription and to continue in power."
'Children from the age of 14 (or according to some reports from the age of 10) are refused exit visas to leave the country in case they do not return.'
'Draft evaders' includes anyone who has evaded conscription, whether by failing to register, deserting, or (having previously served) failed to answer a further call...'
'Estimates vary as to what percentage of the national population has served in the armed forces ranging from 6% to 35%. The latter estimate probably reflects the extent of military call up from 1998'.
'While initially denying that it conscripted children below the age of 18, [the] government admitted that this may have occurred as a result of the absence of systematic birth registrations. Given the scale of recruitment and the creation [of] 'military schooling' for youth, it is not clear whether [they] are or are not conscripting school-age children. Thus in addition to using police sweeps, roadblocks and house to house searches for deserters and draft evaders, the government also refuses to issue exit visas to adolescents and children as young as ten years of age apparently on the grounds that they were approaching the age of eligibility for national service [US State Department Report 2003].
What categories of person are subject to conscription and who is exempt? The age for conscription has remained unchanged at 18-40 years, as has the penalty for attempting to evade conscription, i.e. 3 years imprisonment. However in 2002 the terms of national service were extended indefinitely and individuals who had already served and been discharged were required to re-enlist. The effect of the requirement on ex-soldiers to re-enlist would significantly raise the age of conscription (perhaps beyond the age of 50 which is final year for serving in the reserves), however no statistics are available.
Among these who were initially exempt from national service were 'mothers', certain categories of workers, EPLF veterans, the disabled, those with registered medical certificates and students. However, in 2001 marriage no longer exempted young women from military service, a situation which is said to have pushed some into having children in order to be exempted. I have been unable to find specific information concerning which 'workers' are exempt though this may apply to civil servants, teachers or health workers (if conscripted these individuals work under that authority of the military and for low military wages). There is no information concerning how the disabled and those with medical problems are assessed, nor what conditions are recognised as the basis for claiming exemption. Final year (11th grade) high school students and university students are required to do summer work service (often in harsh conditions, several students died from heat prostration in 2001 while others were beaten). In 2003 an 'extra final year' was added to the school curriculum which requires all students to attend military-style training at Sawa military base; at the end a small number are selected for higher education (where they have a temporary reprieve from military service until they graduate) while the rest go to national service.
'Women played an important part in the EPLF's liberation struggle in both military and civilian roles and there was an official commitment to gender quality in the EPLF and its social policies. This was reflected in the terms of the national service after independence, which was established for men and women equally, although there was considerable resistance to female recruitment from Muslim communities, especially among the Afar of Dankalia region on the Red Sea coast. Resistance on the grounds of religious belief, cultural traditions and family honour, or protecting women from sexual harassment and violence in the army sometimes led to violent confrontations during conscription round-ups. The government appears to have subsequently stopped forcible recruitment of young Muslim women in these areas.
There was an official statement at the end of 2003 that women were to be demobilised but this has reportedly not been implemented.'
"Citizens and foreign nationals were required to obtain an exit visa to depart the country. There were numerous cases where foreign nationals were delayed departure for up to 2 months, or initially denied permission to leave, when they applied for an exit visa. During the year, the Government announced that citizens who had left the country without exit visa would be allowed to return to the country without legal consequences; however, at year`s end, it was unclear if this provision had been implemented.
Citizens of national service age (men 18 to 45 years of age, and women 18 to 27 years of age), Jehovah's Witnesses and others who were out of favour with or seen as critical of the Government were routinely denied exit visas. Students who wished to study abroad often were unable to obtain exit visas. In addition, the Government frequently refused to issue exit visas to adolescents and children as young as 5 years of age, either on the grounds that they were approaching the age of eligibility for national service or because their diasporal parents had not paid the 2 percent income tax required of all citizens residing abroad. Some citizens were granted exit visas only after posting bonds of approximately $7,400 (10,000 nafka).
In general, citizens had the right to return; however citizens had to show proof that they paid the 2 percent tax on their income to the Government while living abroad to be eligible for some government services on their return to the country. Applications to return from citizens living abroad who had broken the law, contracted a serious contagious disease or had been declared ineligible for political asylum by other governments, were considered on a case by case basis".
"The law requires that women between the ages of 18 and 27 participate in national service (see Section 6c). During the year efforts to detain women draft evaders and deserters generally decreased compared to previous years. According to reports, some women drafted for national service were subjected to sexual harassment and abuse.
During the year hundreds of women were demobilised from national service due to age, infirmity, motherhood, marriage, or needs of their families. Once demobilised women were not required to serve in a government ministry".
Amnesty International's risk categories
"Amnesty International considers the following categories of people would be particularly at risk of arbitrary detention (some as prisoners of conscience who have not used or advocated violence), torture and ill-treatment or possible extra-judicial execution:
* members and supporters or suspected supporters (at all levels, not just those holding official positions) of the left or other groups in the armed Eritrean National Alliance;
* members and supporters of new political opposition groups such as the EPLF-DP (now the EDP) or the 'democratic reform' movement in general;
* journalists who have criticised the government;
* national service conscripts and members of the armed forces deserting from the army;
* people evading and refusing conscription on account of their opinions or beliefs;
* members of persecuted minority Christian religions (especially Jehovah's Witnesses);
* Muslims suspected of links with armed Islamism or ELF opposition groups even without substantive evidence of such involvement;
* people who had previously been imprisoned for political reasons and ignored threats to desist from opposing the government;
* anyone known or suspected to have criticised the government or the President;
*anyone suspected of disloyalty to the government even the act of applying for asylum abroad would be regarded as evidence of disloyalty and reasons to detain and torture a person returned to Eritrea after rejection of asylum.
In addition, two categories of Eritrean affected by the war and continued tensions between Eritrea and Ethiopia would be at risk of human rights violations if forced to return to Eritrea:
* those who wished to remain in or return to Ethiopia as Ethiopian citizens (after living there for all or most of there lives and having no ties to Eritrea) but [who] were en masse denied this by Ethiopia and stripped of their Ethiopian citizenship;
* those of mixed Ethiopian-Eritrean families (of which there are many): families were broken up by the expulsions from Ethiopia during the war, where the Ethiopian spouse/parent stayed in Ethiopia in fear of the risk of moving to Eritrea, or where marriage to an Ethiopian or someone of part-Ethiopian descent might lead to their being refused entry to Eritrea, discriminated against in Eritrea or suspected of having Ethiopian government links; some had no ties with Eritrea and did not wish to become Eritrean citizens.
In early 2004 the Ethiopian government issued new regulations for the tens of thousands of Eritreans still remaining in Ethiopia. These regulations would allow them Ethiopian citizenship if they were not Eritrean citizens, or would grant them permanent non-citizen residence status in Ethiopia as well as travel documents and business permits, except for those who were outside Ethiopia for over a year. The latter would be treated as non-citizens for the purpose of government employment but otherwise with the same access to education and health facilities as Ethiopian citizens. It remains to be seen how these regulations will be implemented.'
Risk to Returnees perceived as draft evaders
Risks to Returnees
It is right that we take note here that in its May 2004 report Amnesty International did list amongst its sub-categories of "Eritrean asylum seekers at risk":
"Anyone suspected of disloyalty to the government even the act of applying for asylum abroad would be regarded as evidence of disloyalty and reasons to detain and torture a person returned to Eritrea after rejection of asylum".
"Certainly the fact that she has claimed asylum in the UK and clearly does not want to return to Eritrea will only increase the level of suspicion to which she would be subjected if returned there and is thus one reasons why she would now almost certainly be viewed by the Eritrean authorities as a draft evader".
Risk to Returnees of Eligible Draft Age
"Children from the age of 14 (or according to some reports from the age of 10) are refused exit visas to leave the country in case they do not return".
The latest US State Department report even suggests that children as young
as five can be refused exit visas.
However, what we have to focus is how the Eritrean authorities will perceive persons returning to 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 that 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. (emphasis added)"
(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 or to 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 will often include persons who left Eritrea when they were approaching draft age or had recently passed that age; or
(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. 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: we will return to this point when assessing the appellant`s particular circumstances; or
(iii) they have never been to Eritrea and are able to show that there was no draft-evasion motive behind any absence of theirs since 1998 when the war with Ethiopia began. In relation to this subcategory, we bear in mind that only nationals of Eritrea are required to do national service and that if someone has not yet obtained travel documents based on his (her) being accepted as an Eritrean national, there is no reason to think that the Eritrean authorities would see him (her) as having evaded military service at a time when he (she) had not formally acquired or been recognised as having Eritrean nationality. To this extent, we agree with the conclusions set out in TA (draft evasion-citizenship-evidence required) Eritrea  UKAIT 00155.
Risks to females of eligible draft age
We do not think there is any justification in departing from the guidance in IN arising from the risk to women of eligible draft age of sexual abuse. The furthest that any of the descriptions in the background materials go is what is set out in the May 2004 Amnesty International report, which refers to there being a pattern of such abuse. In none of these materials, however, is it suggested that such a pattern is consistently or frequently occurring. The only quantitative term used is "some". Because the background materials fall short of identifying a consistent pattern of gross, mass or frequent sexual abuse of female conscripts we remain of the view, therefore, that that they do not establish a real risk of such abuse facing women conscripts generally.
We think, therefore, that women who would potentially be at real risk of being perceived as draft evaders will be confined to those who are non-Muslim females aged between 18-40 who are not married or who are not mothers or carers. Furthermore such women will only be actually at real risk of being perceived as draft evaders if their circumstances do not bring them within one of the three subcategories identified in para 72 above.
Risk to those with conscientious objections to military service
Risk to Persons who undertake Military Service
Our findings on the Appellant's particular circumstances
Our Assessment of whether this appellant is at risk
"(i) The Appellant is of draft age and [is] being involuntarily returned from abroad with no Eritrean identity or travel documents."
"(ii) She has no way of proving that she did not leave to avoid military service and her questioners or interrogators may not believe her explanation, for which she has no evidence".
"iii)her failure to return to Eritrea earlier and voluntarily would be interpreted as disloyalty: '[T]he appellant would have severe difficulty explaining her actions without reference to her actual reasons, which are her concern about her father's political affiliation and her objections to military service on religious and ethical grounds'.
"(iv) she objects to serving the military on religious and ethical grounds relating to Eritrean government policy these may come out under interrogation or intense questioning".
"(i) return without full travel documents".
"(ii) no identity documents, with no way of proving her Eritrean nationality".
Similarly, we have covered this point above.
"(iii) limited grasp of Tigrinya, one of the main languages."
"(iv) problematic cultural attitudes she has picked up in the UK, a free democracy, e.g. lack of deference, believing in freedom of expression."
"(v) being an unmarried young woman without any male or other relatives to support her or to complain on her behalf: 'Sexual abuse of conscripts is widespread and the appellant would be at additional risk because of the perception of their impunity her isolation would give to potential persecutors".
"(vi) in the course of interrogation the appellant's attendance at ELF meetings and at the December 2004 demonstration may also come to light."
We have largely dealt with this point already. Given that the appellant's involvement has been at a very low-level, we do not consider, even if such involvement came to light, that it would lead to the authorities viewing her adversely.
Summary of Conclusions
(a) So far as previous Country Guideline cases on Eritrea are concerned, IN is now to be read together with the modifications and updating contained in this determination. Our guidance supersedes reported cases dealing with draft-related risk categories which have pre- and post-dated IN.
(b) The Tribunal confirms the view taken in IN that persons who would be perceived as draft evaders or deserters face 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. We do not consider it has been substantiated that failed asylum seekers would be regarded by the Eritrean authorities as traitors and ill treated in consequence.
(d) The Tribunal continues 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.
(e) So far as men are concerned, the eligible draft age in the context of return now appears to have extended to being 18-50 rather than 18-40. So far as women are concerned, we consider, despite some reservations, that we should continue to treat the eligible draft age category in the context of return as 18-40. We do not see evidence that for women it is extended beyond 40. We also think that the category of females within the 18-40 age range who are potentially at real risk of serious harm does not extend to Muslim women or to women who are married or who are mothers or carers. In addition women will still not fall into an actual risk category if their circumstances bring them within any of the three subcategories set out in (f).
(f) Subject to the above, persons of eligible draft age (defined in the context of return as being between 18 and 50 for men and 18-40 for women) are 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. 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 (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. 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.
(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. Given that the issue here is a factual one of whether a person would refuse to serve even knowing that the likely consequence of refusal is ill treatment, we think the reasons of conscience would have to be unusually strong.
(h) Otherwise, however, the Tribunal does not consider that mere performance of military service gives rise to a real risk of persecution or treatment contrary to Article 3.
(i) 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 particular 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.
Dr H H Storey (Senior Immigration Judge)
Approved for electronic distribution
UNHCR position paper entitled 'UNHCR Position on Return of Rejected Asylum Seekers to Eritrea' a January 2004
US State Department Report Feb 2004
Amnesty International Eritrea "Thousands of people held at Adi Abeto army prison", 9 November 2004
Amnesty International report ('You have no right to ask') 19 May 2004
CIPU Eritrea Report October 2004
Home Office Country of Origin Services report on Eritrea, October 2005.
United Nations Progress report of the Secretary General on Ethiopia and Eritrea, 16 December 2004
Human Rights Watch: World Report 2005: Eritrea, 13 January 2005
US State Department Report of February 2005 (covering 2004).
UNHCR Position on return of draft evaders to Eritrea, 11 March 2005
CIPU Eritrea Country Report, 10 May 2005.
Operational Guidance Note: Eritrea, Home Office, IND CIPU, Version 3.0 June 2005
Fresh Air, Interview, Michela Wong discusses the history of Eritrea and her book, "I Didn't Do It For You", 5 July 2005 (excerpt).
Amnesty International in a 28 July 2005 Urgent Action report 197/05.
Voice of America News, "Eritrea Reportedly Detains Relatives of Military Service Evaders", 29 July 2005
Reuters News article of 23 July 2005 headed "Eritrea rejects claims of mass arrests"
Reuter News article of 13 August 2005 "Eritrean food security uncertain despite good rains"
Compass Direct (USA). "Prisoners from Eritrea Wedding Round-Up Mocked, Beaten", 23 August 2005.
A Missionary Service News Agency (MSNA) (Italy) item of 14 September 2005