The Upper Tribunal has issued a new Country Guidance case on Eritrea: MST and Others (national service – risk categories) (CG) [2016] UKUT 443 (IAC). It weighs in at 459 paragraphs plus voluminous appendices.

The findings are good news for Eritrean refugees seeking sanctuary; the tribunal recognises the danger they face if returned. Almost any Eritrean who reaches the UK is likely to be a refugee given that the conditions of military service are found to amount to cruel, inhuman or degrading treatment and forced labour, those who have evaded that military service are at real risk of additional persecution on return and the categories of person who are permitted to leave lawfully are very narrow.

This appreciation of the dangers in Eritrea contrasts markedly with the Home Office, which in essence wins several procedural battles over the course of the determination but nevertheless comprehensively loses the war.

Since 2015 the Home Office has been refusing most Eritrean asylum cases, leading to 9 out of 10 appeals Eritrean asylum appeals being allowed by judges. One of the main arguments deployed by the Home Office has been that Eritreans can send a letter of apology and pay a “diaspora tax” and then return safely. The tribunal finds otherwise (paragraph 334):

we do not accept that the evidence goes anywhere close to establishing that the payment of the tax and the signing of the letter would enable draft evaders and deserters to reconcile with the Eritrean authorities.

In fact, the tribunal goes further and observes that signing the letter might expose the person to greater danger given that it is tantamount to an admission of guilt to the unpredictable and abusive Eritrean authorities.

This country guidance case calls into very serious question the judgment of those at the Home Office responsible for this change of policy. Those responsible have wasted considerable sums of public money on unnecessary tribunal hearings and caused untold distress to those who have unnecessarily had to endure the appeal process.

Immediately before publication of the new case, the Home Office took down its latest guidance on returns to Eritrea. The new guidance is eagerly awaited at the time of writing.

The tribunal’s summary of country guidance findings is as follows:

1. Although reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059  and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 00190 (IAC), this case replaces that with the following:

2. The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service.

3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men.

4. The categories of lawful exit have not significantly changed since MO and are likely to be as follows:

(i) Men aged over 54

(ii) Women aged over 47

(iii) Children aged under five (with some scope for adolescents in family reunification cases

(iiii) People exempt from national service on medical grounds

(v) People travelling abroad for medical treatment

(vi) People travelling abroad for studies or for a conference

(vii) Business and sportsmen

(viii) Former freedom fighters (Tegadelti) and their family members

(ix) Authority representatives in leading positions and their family members

5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health, history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.

6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return.

7. Notwithstanding that the round-ups of suspected evaders (giffas), the “shoot to kill” policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.

(i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.

(ii) Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii).

(iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they left illegally and will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.

8. Notwithstanding that many Eritreans are effectively reservists having been discharged/released from national service and unlikely to face recall, it remains unlikely that they will have received or be able to receive official confirmation of completion of national service. Thus it remains the case, as in MO, that “(iv) The general position adopted in MA, that a person of or approaching draft age … and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions…” A person liable to perform service in the people’s militia and who is assessed to have left Eritrea illegally, it not likely on return to face a real risk of persecution or serious harm.

9. Accordingly, a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm. While likely to be a rare case, it is possible that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.

10. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion.

In short, little has changed since the earlier country guidance case of MO.

On this basis the appeals of two of the appellants are dismissed and one was allowed. The two unsuccessful appellants had been found not to be telling the truth and had left at an age when they might have completed their military service and might potentially have qualified for exit visas. Essentially, they could not prove their cases.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

Buy now