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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ariaya v Secretary of State for the Home Department [2006] EWCA Civ 48 (08 February 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/48.html Cite as: [2006] EWCA Civ 48 |
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C5/2005/1815 |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ASYLUM AND IMMIGRATION TRIBUNAL
(Tribunal Appeal Nos. CC50137-2003 and HX/34056/2003)
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RICHARDS
and
MR JUSTICE COLERIDGE
____________________
Abreham Gebrenous  Ariaya |
Appellant |
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| - and - |
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| Secretary of State for the Home Department |
Respondent |
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And between: |
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| Sirak Sammy |
Appellant |
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| - and - |
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| Secretary of State for the Home Department |
Respondent |
____________________
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
____________________
Crown Copyright ©
Lord Justice Richards :
The context: relevant tribunal decisions
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:
"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."
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):
"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."
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)):
"(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."
"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
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.
"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."
"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."
The challenge to the tribunal's decision in Ariaya
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:
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.
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.
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.
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.
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.
Ariaya and that the appeal should be dismissed.
The facts in the case of Sammy
"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."
"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."
"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."
The challenge to the tribunal's decision in Sammy
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.
"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."
"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."
Conclusion
Mr Justice Coleridge:
Lord Justice Laws: