The Home Office has published a new 285 page report of a UK fact finding mission to Eritrea from February 2016 and updated its country policy documents on illegal exit from Eritrea and military service. From a quick glance, it looks like there is little change in the Home Office position, which is essentially that the vast majority of Eritreans can safely return. The immigration tribunal disagrees, with almost 9/10 Eritrean asylum appeals being allowed.

Publication of the fact finding report follows the belated promulgation of a case management decision in the case of MST and others (Disclosure – restrictions – implied undertaking : Eritrea) [2016] UKUT 337 (IAC). This case will become the new Country Guidance case on Eritrea and the tribunal took the unusual step of publishing a directions decision. The tribunal directed that the Secretary of State serve her skeleton argument before the appellants but declined to order disclosure of the documentary material underlying the fact finding report, defined as:

The materials which the Appellants’ representatives seek to obtain by this discrete application consist of, in summary, planning and methodology documents, correspondence with the Eritrean Government, any correspondence with interviewees/interlocutors or the UK Ambassador to Eritrea, hand written notes and audio recordings of interviews, correspondence with interviewees, unredacted versions of all interview transcripts, the identities of all sources and interviewees and documents bearing on the anonymity of interviewees.

The tribunal also did not permit the appellant’s to publish the Home Office fact finding mission with which they had been served in the proceedings; documents served in proceedings are confidential unless used in open court.

The official headnote from MST:

(i) In some cases the overriding objective will dictate that the respondent’s skeleton argument is served in advance of that of the appellant.

(ii) The test for disclosure is whether receipt of the material in question is necessary for the just and fair disposal of the appeal.

(iii) Where uncorroborated and/or anonymous evidence is received, the Tribunal’s task is to scrutinise it with caution and to attribute such weight as is considered appropriate. 

(iv) Documents obtained by a party pursuant to disclosure or production orders or directions are produced under coercion and, in consequence, are received subject to certain restrictions. In particular, they must not be deployed by the receiving party for any collateral or ulterior purpose not reasonably necessary for the proper conduct of the proceedings. 

(v) The so-called implied undertaking, reflected in [iv] above, applies in Tribunal proceedings. However, it may be subject to modification to reflect (a) that the primacy of protecting a party’s private documents and invading a party’s privacy does not apply with full force in such proceedings, particularly where the custodian is the Secretary of State, (b) the duty of candour owed to the Tribunal and (c) the inquisitorial dimension of Tribunal proceedings. 

(vi) In matters of disclosure and the provision and exchange of evidence, all parties are subordinated to the authority of the Tribunal, which is the ultimate arbiter of all procedural and substantive issues.

It is not clear why the Home Office has published the fact finding report now. My guess is that the main hearing in the Country Guidance case is over so it is too late for the material now to be subject to public examination and for any resulting criticisms to be taken into account by the tribunal in determining the Country Guidance issues.

But I’m a cynic.

Source: Eritrea: country information and guidance – Publications – GOV.UK

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