Upper Tribunal (Immigration and Asylum Chamber)

            “as a dictatorship where it is simply impossible to live a normal life in any way and where therefore people flee and endure horrific abuses while on the way—either during their clandestine crossing of the border, or once out by human traffickers ultimately related to the long arm of the Eritrean state. This narrative, advanced by organisations like Amnesty International or Human Rights Watch, is not being recognised by anybody who actually visits Eritrea or for example volunteers to teach at one of its colleges as a young academic, based at a prestigious UK university has recently done for three months.”

The true meaning of country guidance

“[o]ne of the key reasons for bringing CLST and COIS back together was to promote greater coherence between the guidance the Home Office provided to caseworkers (primarily through the use of Operational Guidance Notes (OGNs)) and the country of origin information which informed and underpinned it. On occasions, for example, due to competing priorities within the two distinct teams, the respective products on a particular country were not updated in tandem. “

The country guidance issues

“(iii) Whether the Eritrean system of military service gives rise to a real risk on return of exposure to treatment contrary to Article 4 ECHR.”

Existing country guidance

“1. A person who is reasonably likely to have left Eritrea illegally will in general be at real risk on return if he or she is of draft age, even if the evidence shows that he or she has completed Active National Service, (consisting of 6 months in a training centre and 12 months military service). By leaving illegally while still subject to National Service, (which liability in general continues until the person ceases to be of draft age), that person is reasonably likely to be regarded by the authorities of Eritrea as a deserter and subjected to punishment which is persecutory and amounts to serious harm and ill-treatment.

“(iv) The general position adopted in MA, that a person of or approaching draft age (i.e. aged 8 or over and still not above the upper age limits for military service, being under 54 for men and under 47 for women) 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 in respect of (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.”

“(iii) The general position concerning illegal exit remains as expressed in MA, namely that illegal exit by a person of or approaching draft age and not medically unfit cannot be assumed if they had been found wholly incredible. However, 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 the adverse credibility findings.”

“(v) Whilst it also remains the position that failed asylum seekers as such are not generally at real risk of persecution or serious harm on return, on present evidence the great majority of such persons are likely to be perceived as having left illegally and this fact, save for very limited exceptions, will mean that on return they face a real risk of persecution or serious harm.”

Strasbourg cases on Eritrea

Decisions of national courts and tribunals on Eritrea

The legal issues

The appellants

1).    MST, who was aged 27 at the hearing before us, submits that he is at risk on return because he left Eritrea illegally and will be viewed as a deserter.  He will be forced back into national service on return.

2).    MYK, who was aged 31 at the hearing before us, submits that he is at risk on return because he left Eritrea illegally and will be viewed as a deserter.  He will be forced back into national service on return.

3).    AA, who was aged 29 at the hearing before us, is a paranoid schizophrenic. He submits that he will be forced to undergo national service on return notwithstanding his mental health.

Procedural matters

A.       EVIDENCE AND SOURCES

1.        Background evidence

UNHCR Eligibility Guidelines for Assessing the International Protection Needs for Asylum-seekers from Eritrea, 20 April 2011

“UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks.  These risk profiles, while not necessarily exhaustive, include (i) persons avoiding military/national service; (ii) members of political opposition groups and Government critics; (iii) journalists and other media professionals; (iv) trade unionists and labour rights activists; (v) members of minority religious groups; (vi) women and children with specific profiles; (vii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (viii) members of certain ethnic minority groups; and (x) victims of trafficking.”

Eritrean Ministry of Information publication: “UNHCR Eligibility Guidelines: Factual Findings or Recycled Reformation”, 17 December 2015

“No Eritrean is subjected to harassment simply because he/she lives abroad.  The fact is even those who have asylum papers come back to their country periodically for family reunion, vacation and other personal matters.  Eritrea’s tourism is largely based on the Diaspora who visit their country in summer as well as during the Christmas, Easter and Independence Day celebrations.  More than 85,000 Eritreans come back for vacation every year and this number is greater on special occasions, as will be the case in 2016 when Eritreans will celebrate next May its Independence Silver Jubilee....”

Danish Fact-Finding Mission (DFFM) Reports, 25 November and 16 December 2014

“... [PK], ......, also stated that over the past two or three years, the government’s attitude towards NS [national service] seems to be more relaxed.  It is now possible for evaders and deserters who have left Eritrea illegally to return if they pay the two per cent tax and sign the apology letter at an Eritrean Embassy.  Finally, [PK] was aware of a few deserters from the national service who have visited Eritrea and safely left the country again.”

Landinfo, 23 March 2015 and 16 April 2015 and May 2016

UN Commission of Inquiry Reports

(A/HRC/29/CRP.1), 5 June 2015 (2015 UNCOI Report)

“1. [T]reatment of apprehended draft evaders and deserters during detention often amounts to torture, cruel, inhumane or degrading punishment ([1389]).

2. People attempting to leave – or who have previously left – the country illegally are regarded as “serious offenders but also as traitors” ([431]) and “with a few exceptions [are] arrested, detained and subjected to ill-treatment and torture” ([444]).  

3. That conditions of national service are characterised by lack of adequate food, access to water, access to hygiene facilities and adequate accommodation during military training and service, such conditions constituting cruel, inhuman or degrading treatment ([1391]).”

“National service as implemented by the Eritrean authorities involves the systematic violation of an array of human rights on a scope and scale seldom witnessed elsewhere in the world”. 

“The indefinite duration of national service: its terrible conditions and treatment including arbitrary detention, torture, sexual and gender-based violence, forced labour, absence of leave and the ludicrous pay; the implications this has on the possibility of any individual to form a family, have a family life and to have favourable conditions of work, make national service an institution where slavery-like practises occur.” 

(A/HRC/32/CRP.1), 8 June 2016 (2016 UNCOI Report)

EASO Country of Origin Information Report, Eritrea Country Focus, May 2015

“Some of the respondents contacted in Eritrea during Denmark’s and Norway’s fact finding missions in late 2014 and early 2015 believed that deserters and draft evaders were held in prison for several weeks or months and were then reassigned to NS [national service]. However, several of the experts consulted in 2013 and 2014 by Norway, the Netherlands and Denmark believed that repatriated deserters and draft evaders may still be subjected to interrogation and mistreatment…The Eritrean leadership has stated on several occasions that those returning to the country will not be punished as long as they have not committed offences but it has not yet been made clear whether desertion, draft evasion or illegal exist are regarded as offences….”.

US State Department Country Reports on Human Rights Practices, chapter on Eritrea, 2014 and 2015

Chapter on Eritrea 2014 (25 June 2015)

“the government imposed new restrictions.  Authorities generally did not give exit visas to children ages 5 or older.  In September members of the civilian militia were told that any men or unmarried women in the civilian militia would be unable to get an exit visa until further notice.  Categories of persons most commonly denied exit visas included men under age 54, regardless of whether they had completed the military portion of NS [national service] and women younger than age 47.  The government did not generally grant exit permits to members of the citizens militia, although some whom authorities demobilised from national service or who had permission from their zone comrades were able to obtain them.  Authorities arrested persons who tried to cross the border and leave without exit visas.  A shoot-to-kill policy was in effect for those attempting to cross the border to exit the country without authorisation.

To prevent emigration, the government generally did not grant exit visas to entire families or both parents of children simultaneously. Some parents avoided seeking exit permits to children approaching the age of eligibility for national service due to concern that they would be denied permission to travel, although other adolescents were granted exit permits.  In the past diaspora males who visited the country reported being required to pay a two per cent tax on foreign earned income before being given exit visas.  This was not commonly enforced.”

Chapter on Eritrea 2015 (13 April 2016)

“Forced labour occurred.  Despite the 18 month limit on national service under the law, the government did not demobilise many conscripts from the military as scheduled and forced some to serve indefinitely under threats of detention, torture, or punishment of their families, persons performing national service could not resign or take other employment, generally received no promotions or salary increases, and could rarely leave the country legally because they were denied passports and/or exit visas.  Those conscripted into the national service performed standard patrols and border monitoring in addition to labour such as agricultural, terracing, construction and laying power lines.  In its examination during the year of forced labour in the country, the ILO Conference Committee on the Application of Standards noted discussion “relating to the large-scale and systematic practice of imposing compulsory labour on the population for an indefinite period within the framework of the national service program which encompasses all areas of civilian life and was therefore much broader than military service.”

Amnesty International, Report on AA, 22 September 2015, and the “Just Deserters” Report, December 2015

Report on AA, 22 September 2015

“Just Deserters” Report, December 2015

“Children are walking alone, often without telling their parents to another country, to avoid a life of perpetual forced labour on low pay with no genuine education or viable work opportunities through which they or their families could live.”

“The experiences of people caught, arrested and arbitrarily detained for attempting to leave the country is indicative of the likely treatment failed asylum-seekers will face if they were forcibly returned to Eritrea.  There is a high likelihood that anyone of approximately national service age who is returned to Eritrea would be subject to arbitrary detention without charge; as is the widespread pattern, would face possible torture or other ill-treatment to extract information on how and with whom they left the country and then would be conscripted or returned to indefinite national service.  It is possible that some would avoid such a fate, but as the implementation of punishment is arbitrary, the risk must be considered to apply in every case.”

Lifos reports on Eritrea, 23 November and 15 December 2015

Subject report People’s Army in Eritrea, version 1.0, 23 November 2015

Country Report Eritrea, 15 December 2015 version 1.0

Swiss Visits, January and March 2016

Human Rights Watch reports

Human Rights Watch, “Sudan: Stop Deporting Eritreans”, May 2014

Human Rights Watch, Human Rights Watch Report 2016

“Despite widespread criticism of the Danish Report, the United Kingdom’s Home Office changed its guidance about Eritrea in early 2015 to assert that asylum seekers “who left [Eritrea] illegally are no longer considered per se to be at risk of harm or mistreatment amounting to persecution on return”.

UK government materials

UK Home Office Policy, February 2014 – September 2015

1).    The Eritrean government “views as political opponents those who evade military service or desert from the military” and that “the treatment of such individuals is likely to amount to persecution”;

2).    Eritreans forcibly returned to their country after leaving illegally “will be subjected to arrest without charge, detention, torture and other forms of ill-treatment”; and

3).    National/military service may involve abuses such as indefinite forced labour, inadequate food and medical care, arbitrary arrest and detention for minor infractions, and, in the case of women, sexual violence.

1).    It was stated that “those who refuse to undertake or abscond from military/national service are not viewed as traitors or political opponents”;

2).    Eritreans fleeing national service “who left illegally are no longer considered per se to be at risk of harm or mistreatment amounting to persecution on return”.  It was stated that anyone “who left Eritrea illegally [is] not at risk of harm provided they have paid income tax... and have signed a ‘letter of apology’ at an Eritrean Embassy” before returning home. 

3).    As regards conditions of national service, it was stated that “although a person may be able to demonstrate that they would be at real risk of mistreatment or inhuman, degrading treatment as a result of the conditions of military service, it cannot be said that every single person undertaking some form of military training as part of their [national service] requirement would face such risk”.  The National Service Report also concluded that “the most up-to-date information available from inside Eritrea suggests, in general, military/[national service] lasts for around four years” and “[national service] is generally between eighteen months and four years”.

Foreign & Commonwealth Office Report, Eritrea – Country of Concern, January 2015

Country Information and Guidance (CIG) Eritrea: Illegal Exit, version 2.0e

“More recent information suggested that not everyone who left illegally is detained on return (or that all draft evaders are detained) and that the Eritrean authorities have neither the will nor means to imprison every returnee.  The evidence suggests that whilst some are detained/imprisoned (with the length of time appearing to vary), some are fined, others are simply re-assigned to national service.  If disproportionate punishment amounting to serious harm is imposed, it is applied arbitrarily”.

“...the fact that they have e.g. acquired foreign citizenship is not a reason, of itself, to exempt a person from [the requirement to complete national service].  This suggests that either those leaving Eritrea have completed national service and/or there is no real risk of a penalty being imposed for having previously left illegally.”

“that a person who left Eritrea illegally, even a draft evader, can return to Eritrea provided they sign a ‘letter of apology’ and pay any outstanding (2%) diaspora tax at an Eritrean Embassy.  The diaspora tax is considered a reasonable requirement and a refusal to comply with this will mean the person is not issued with a travel document to return to Eritrea voluntarily, but this would not amount to persecution or serious harm.”

Country Information and Guidance (CIG) on National Service (incl. Military) Service), version 2.0

“Where a person can demonstrate that there would be a flagrant denial of their right not to be required to perform forced labour, in particular beyond the 4-6 year average period of national service, then they may be entitled to a grant of DL [discretionary leave].”

“3.1.10. The evidence suggests that while some deserters/evaders may be detained/imprisoned (with the length of time appearing to vary) some are fined, others are simply re-assigned to national service.  In order for a punishment to be considered disproportionately harsh or severe, it would need to be of a particularly serious nature.  Long prison sentences will not normally be enough.  However, the physical conditions of detention and potential for mistreatment may be such that a person can demonstrate that they are at real risk of persecution or serious harm.

3.1.11. The risk may be higher for those who have e.g. deserted more than once and/or deserted a critical post graduate diploma in business management.  However, there are other ‘critical’ posts such as teachers, which the Eritrean Government is keen to retain.”

Report by the Independent Advisory Group on Country Information (IAGCI) on Eritrea Country Information and Guidance Reports produced by the UK Home Office, 13 May 2015

“marred by severe methodological concerns.  In particular, where they refer to illegal exit, conditions on return and national military service, the two CIG reports rely heavily on [the DFFM Report] [which] has itself been widely criticised in terms of its methodology.”

Review of UK Home Office Country Information and Guidance – Eritrea, prepared for the Chief Inspector of Borders and Immigration and the Independent Advisory Group on Country Information (IAGCI), 15 November 2015

Home Office Response to IAGCI Review, November 2015

UK Fact-Finding Mission – Visit 20 February 2016

The new versions of Home Office CIGs, 4 August 2016

Country Information and Guidance: Eritrea: National (incl.Military) Service, Version 3.0, August 2016

“Decision makers must determine whether a person is required to perform national service based on the individual facts of their case. Those who are not likely to be required to undertake national service and therefore are not at real risk on return include those who are exempt:

a. Those who have already completed (and been demobilized from) national service. This may also be evident from their ability to have obtained an exit visa and left the country legally, as conscripts are not granted exit visas.

b. Those who are above national service age.

c. Those who are disabled or medically unfit and therefore have been, or are reasonably likely to be, exempted from national service.”

“…The Home Office FFM of February 2016 met 47 people, most of whom stated that they left Eritrea illegally before or during national service who paid the 2% Diaspora tax, signed a letter of apology and returned to Eritrea without sanction. Given that the interviews were arranged by the Eritrean government and the circumstances of the interviews, this information by itself is not conclusive however it is consistent with information provided by independent sources that Eritreans who avoided doing national service and left the country illegally may be able, in some circumstances, to return without sanction…”

“Unlike those undertaking their national service in the military those in the civil service are not provided with any food or accommodation by the government. As salaries are below the subsistence level, they face severe financial difficulties. In practice, many people take a second or third job or set up a small business to supplement their income whilst doing national service. However the Eritrean government stated in early 2016 that the salaries of conscripts would be raised to a living wage in line with civil service employees. This was effective from July 2015 for certain conscripts graduating from Sawa but is to be rolled out across all conscript groups over 2015 and 2016, and to be paid retroactively. There is some evidence that individuals have been paid the increased wages, although this appears to have been erratically implemented and not yet to be applied across all conscript groups. However low pay, even at rates existing prior to proposed pay increases, is unlikely to be sufficient to constitute persecution or serious harm by itself.”

(a)  gender - women who are over 27 years old and are, or will be getting, married, or pregnant, or have children are likely to be demobilised or likely able to successfully seek to be demobilised;

(b) occupation – some sources indicate that professions in short supply (such as teachers, geologists and engineers) may find it easier to be demobilised;

(c)  area of work – sources indicate that different government ministries, such as the Ministry of Foreign Affairs, may be more willing to demobilise staff than other departments such as the Ministries of Health or Education;

(d) good relations with the person’s commander or reporting officer/manager may make the process easier.

106.          At 2.3.40 it is stated that additionally persons who become medically unfit may also be temporarily or permanently discharged from national service and at 2.3.41 that a person who is the sole breadwinner of a family may also be able to be demobilised (it being acknowledged, however, that this is based on a single example provided by the UK Ambassador to Eritrea to the UK’s Fact-Finding Mission Report). At 2.3.42-43 it is stated that:

“2.3.42 There may be additional factors that can increase the likelihood of a person being demobilised, such as the passage of time, those with contacts with government and/or those who are able to pay bribes, and those seeking discharge for economic or family reasons

2.3.43 Decision makers will need to give careful consideration to the length of national service that the person has already served and their prospects of being demobilised or discharged. A long period of national service, even if it is for a decade or more, is not by itself persecution or serious harm “

“If it is considered that a person is not at risk of persecution or serious harm but will return to national service, decision makers will then need to consider if there may be a real risk of a flagrant breach of Article 4 of the ECHR which prohibits slavery and servitude and forced or compulsory labour.”

           At 2.3.46 it is stated that:

“The onus will be on the person to show that the length and conditions of their national service on return amounts to a flagrant breach of Article 4. Working in the civilian sector in national service, is unlikely generally to amount to a real risk of a flagrant breach of Article 4. Where a person is able to demonstrate that as a result of the open-ended nature of their national service they will face a flagrant denial of their right not to be required to perform ‘forced labour’, they will be entitled to a grant of discretionary leave. Each case will need to be considered on its merits.”

“3.1.1 National service is compulsory for persons aged 18 to 50 under Eritrean law with limited exemptions. A requirement to undertake national/military service does not, in itself, constitute persecution or serious harm.

3.1.2 The lack of a civilian alternative to national service and the disproportionate penalties for those who refuse to undertake it means that conscientious objectors – in particular Jehovah’s Witnesses and evangelical and Pentecostals Christians – are likely to be at risk of persecution and qualify for asylum.

3.1.3 Evading or deserting from national service, by itself, is unlikely to be perceived as a political act by the government. This will, though, depend on the person’s circumstances, including their actions inside Eritrea and since leaving the country.

3.1.4 Eritrean law has provisions which punish those who evade or desert from national service with up to 5 years imprisonment. In practice, punishment can be arbitrary and may range from no punishment at all – simply reassignment to another national service post - to several years in prison, where conditions are likely to be harsh and may include ill-treatment. Persons able to demonstrate that they will face a prolonged period of detention are likely to be subject to serious harm.

3.1.5 Persons who have fled from national service and left Eritrea illegally may be able to regularise their status with the Eritrean government by paying the 2% Diaspora tax and signing the letter of apology. Decision makers will need to consider whether the person has or will pay the tax, sign the letter and return to Eritrea.

3.1.6 Conditions during national service (including the period of military training preceding a national service posting) are generally harsh, although better for the majority who are assigned to posts in the civilian sector, such as in the civil service and as teachers. Some persons, in particular women over 27 who are married and / or have children, may be able to be demobilised / discharged from national service. Persons who are required to do national service in a military posting may be subject to conditions that amount to serious harm. The circumstances of each case will be different and therefore need to be considered on its merits.

3.1.7 The length of national service in law is 18 months but in practice it can be significantly longer and in some cases is open-ended. Open-ended national service, by itself, may not amount to serious harm but where a person can demonstrate that they would face a real risk of a flagrant denial of their right not to be required to perform forced labour under Article 4 of the ECHR, then they may be entitled to a grant of Discretionary Leave. Each case will need to be considered on its merits.

3.1.8 In assessing a case, decision makers should consider if the person will face:

 A real risk that they will be punished on return for having evaded / absconded national service.

 What is the likely punishment

 Will they be required to undertake national service

 What conditions they will face during national service if reassigned to a posting

 Have they paid or will they pay the Diaspora tax and sign the letter of apology

3.1.9 There may be persons who through a combination of personal factors, including past experience, gender, education and profession, and the person’s link to the government, are not at risk of serious harm. Each case will therefore need to be considered carefully on its facts. Persons able to demonstrate a real risk of serious harm should be granted humanitarian protection unless they are able demonstrate that the risk of harm is for a Refugee Convention reason.

3.1.10 Those who are not at risk of persecution or serious harm may be able to demonstrate that there is a real risk that the length and conditions of their national service will be a flagrant breach of their right to protection form forced labour and, if so, they may be entitled to Discretionary Leave.”

“‘Over the last few years, the Eritrean authorities have announced several reforms to the National Service. Most notably, they promised to limit the length of duty to 18 months starting from the 27th conscription round. This has not been fulfilled yet. National Service remains open-ended and conscription lasts for several years. It appears, though, that a growing number of conscripts who had been deployed in civilian roles are discharged once they have served for between 5 and 10 years. However, no reliable information is available on the demobilization and dismissal of conscripts assigned to the military part of National Service. However, in early 2016, the authorities announced a pay rise in the civilian part of National Service. Apparently, implementation has already started.’”

“‘Deserters apprehended within Eritrea are usually returned to their military unit or civilian duty and punished. These punishments are imposed extrajudicially by their superiors. There’s no possibility of appeal. However, the treatment of deserters appears to have become less harsh in recent years. Most sources report that first time offenders are now usually detained for several months. Punishment for deserters from the military part of National Service is reportedly more severe than punishment imposed on those deployed in the civilian part. As deserters are not tracked down systematically, a number of them effectively go unpunished.

‘Draft evaders are usually tracked down in round-ups (“giffas”). Those apprehended are usually detained for some time before starting a military training, which often takes place in camps with hazardous and detention-like conditions. A part of the draft evaders, however, manages to avoid these round-ups in the long run. Sporadically, military units try to individually track down certain draft evaders, particularly those who have been called up already’”.

114.          At 15.3.1 the CIG documents sources shedding light on the matter of whether evaders and deserters are perceived as traitors. It states, inter alia, that

“The May 2015 EASO Report, citing various sources, stated:

‘Individuals who leave national service (military and civilian) without permission are regarded as deserters. Most deserters leave either the training centre at Sawa or other military bases without authorisation or fail to return from leave. They then either hide or attempt to leave the country illegally (cf. Chapter 6.4.3). Due to the political and ideological nature of national service, most sources claim that desertion or draft evasion may be regarded by the authorities as an expression of political opposition or treason. Due to the lack of empirical information on the punishment of deserters and draft evaders in the recent years (cf. Chapter 3.8.2), there is no recent information if this is still the case.’”

115.          The CIG elsewhere identifies sources that suggest desertion/evasion is not regarded as an expression of political opinion or treason.

Country  Information and Guidance: Eritrea: Illegal Exit, Version 3.0, August 2016

“While the government restricts to whom it issues exit visas, it remains possible to obtain a visa for certain persons depending on their particular circumstances (see Exit visas). Therefore, as the court found in MA rather than MO, it cannot be assumed that a person left the country illegally if their claim is found to be wholly incredible.”

“Children aged under 13 (note also that children under the age of 5 are able to exit legally without an exit visa)”.

and adds the observation that:

 “ [a]dditionally, there is evidence that women who are over 30 are also able to obtain exit visas to travel abroad (see Exit visas)”

“The Tribunal in MO (and many sources) links illegal exit with evasion/avoidance of national service and therefore a risk on return. However, there is reason to depart from the caselaw on this issue as there is now evidence indicating that it is not illegal exit per se that places a person at risk but the underlying reason why a person left Eritrea illegally which may place them at the risk, namely whether a person has evaded or absconded from national service.”

“Additionally, that illegal exit per se does not lead to risk is demonstrated by the authorities response to the Diaspora. Thousands of members of the Diaspora return for varying lengths of stay each year, mostly in the summer months. While many may have become naturalised in third countries they often use Eritrean documents to enter Eritrea (possibly alongside documents from their country of residence), a number are likely to have left the country illegally and sought asylum / obtained refugee status. Additionally, over 2,000 Eritreans, some of whom may have left Eritrea illegally and entered Israel illegally, have returned from Israel voluntarily since 2012. Many of the returnees are likely to have regularised their status with the government of Eritrea by agreeing to pay the 2% Diaspora tax and sign the letter of apology in order to obtain Eritrean documentation and consular services enabling them to return. However, there is no substantiated evidence that these persons have been subjected to ill-treatment…”

“3.1.1. Eritreans need official permission to leave Eritrea legally. This entails obtaining an exit visa which is stamped in a passport. Leaving the country without obtaining this is regarded as illegal exit and, in law, may be punishable with a prison sentence and a fine.

3.1.2 In the country guidance case of MO the Upper Tribunal held that, apart from some limited exceptions, those who had left illegally would be at risk on return to Eritrea. This was because they would be viewed with hostility by the government and faced arrest, detention and mistreatment. However, more recent information suggests that the act of having left the country illegally may not, on its own, result in punishment on return. It is likely that the reason the person left the country - usually because they have evaded or absconded from national service – will be why a person would be of interest to the Eritrean authorities, not the act of leaving without an exit visa.

3.1.3 A person who has left Eritrea illegally may be able to return to Eritrea provided they sign a “letter of apology” and pay any outstanding (2%) Diaspora tax. The Diaspora tax is a reasonable requirement and a refusal or failure to comply with this may mean the person is not issued with a travel document to return to Eritrea voluntarily, but this would not amount to persecution or serious harm. A person who has regularised their status with the Eritrean government by having signed the apology letter and paid the Diaspora tax is unlikely to be at risk on return.

3.1.4 Decision makers should consider the reasons why the person left illegally and whether this puts that person at risk. In general punishment solely because a person left Eritrea illegally is unlikely however each case will need to be considered on its individual facts. Where a person is able to demonstrate a real risk of punishment for having left illegally which amounts to a breach of Article 3 of the ECHR, humanitarian protection should be granted.”

“Immigration officials at a meeting with the UK Home Office’s fact finding mission to Eritrea, 7-20 February 2016 (UK FFM), stated: ‘…thousands of Eritreans, including those who left the country illegally, come back to visit, especially in summer, to see family, etc. In 2014, 1,538 males and 389 females returned to Eritrea. These had left illegally and been away for three years.” In 10.1.8 it is said that “[t]he Population, Immigration and Border Authority (PIBA), of Israel, in correspondence with the Home Office in March 2016 stated that since 2012 2,167 Eritreans had returned voluntarily to Eritrea from Israel.”

“There is hardly any information available regarding the treatment of forcibly returned per-sons (sic). In the last few years, only the Sudan (and possibly Egypt) forcibly repatriated Eritreans. As opposed to voluntary returnees, those forcibly returned are not able to regularise their relation to the Eritrean authorities prior to returning. The few available reports indicate that the authorities treat them similarly as persons apprehended within Eritrea. For deserters and draft evaders, this means being sent back to National Service after several months of detention.” 

Academics and journalists

125.          There are a significant number of articles and academic papers relied on by both parties and we have considered them all, but have selected the following to record because we consider them to be the most relevant to the issues we must consider.

Dr David Bozzini

“National Service & State Structures in Eritrea”, 16 February 2012 (Presentation to Federal Office for Migration, Berne)

Tanja R Müller

“Beyond the Siege – Tracing Hybridity during a recent visit to Eritrea” (Review of African political economy Vol.39, No.133, September 2012, 451-464)

“But my trip is still not over, because I don’t get the rights I am entitled to” – what the row over a Country-of-Origin-Report on Eritrea reveals about human rights politics (blog posted on 7 December 2014)

Media reporting from the global fringes – Observations from Eritrea and beyond (blog posted 11 November 2015)

Mary Harper 

“Africa’s Modernist Enigma”, 22^nd June 2016

Ashish Kumar Sen

“What the UN gets wrong about rights in Eritrea”, 7 June 2016

Martin Plaut

“Eritreans Rounded up in Sudan”, 24^th May 2016

“Eritrea: Naming the Dead and Injured Conscript in Asmara Shooting”, 7 April 2016

“Eritrea Look to Build Mining Sector to Kick-Start Economy”, 26 February 2016

Edmund Blair 

“Eritrea Won’t Shorten National Service Despite Migration Fears”, 25 February 2016

Bisha Mines Materials

HRW study entitled “Hear no Evil: Forced Labour and Corporate Responsibility in Eritrea’s Mining Sector”, 25 January 2013  

Witness statement from Elizabeth Chyrum

2015 UNCOI Report

Human Rights Impact Assessment (2015 Audit) – Bisha Mine 5 August 2015 

2.         Expert Evidence of Professor Kibreab (PK) in summary form

1).                 The DFFM Report does not accurately represent his views and is flawed generally. It does not represent the position in Eritrea.  

2).                 Draft evaders or deserters who fled Eritrea illegally continue to be at risk on return.  The requirement to do people’s militia has effectively increased the upper limit of draft age which is from 54 to 70 for men and from 47 to 60 for women. 

3).                The payment of 2 per cent tax and the letter of regret does not provide protection or immunity; it enables the diaspora to access consular services.  Those returning to Eritrea are a small proportion of people who are close to the regime and have been naturalised in another country.

4).                National service is indefinite and there is no procedure for discharge/ release or demobilisation.

5).                Whilst there is a medical exemption, obtaining exemption on this basis is difficult and rare. 

6).                The Eritrean government have adopted a stricter approach to the granting of exit visas generally. The categories have narrowed; the lower age for children is now 5.

7).                National service is forced labour.

B. ASSESSMENT: THE GENERAL ISSUES

1.  Law

The relevance of existing country guidance

”…where a previous assessment has resulted in the conclusion that the population generally or certain sections of it may be at risk, any assessment that the material circumstances have changed would need to demonstrate that such changes are well established evidentially and durable.”

The status of experts in country guidance cases

Anonymity of sources

Fact-Finding missions and the Eritrean context

“The methodology applied and report format has endured since then including putting emphasis on approved notes, i.e. typing up meeting notes and sending them to the interlocutors for correction and final approval.”

The Danish Fact Finding Mission (DFFM) Report

“In the past two to three years the government’s attitude towards National Service seems to be more relaxed. It is now possible for National Service evaders and deserters who have left Eritrea illegally to return to their country. They must go to an Eritrean embassy and sign a repentance letter in which they accept any penalty for the offense committed. In addition, they must pay the two per cent Diaspora tax. Finally, they are obliged to participate in public festivals in Eritrea. In spite of this softer approach many evaders and deserters still do not dare to return to Eritrea, individual circumstances play a role as well. Persons who did not participate in oppositional political activities abroad and people who are connected by family bonds or in other ways with government officials or members of the ruling party would be more inclined to return to Eritrea on visits. Gaim Kibreab [PK] was aware of a few deserters who have visited Eritrea and safely left the country again. These are invariably people who have been naturalised in their countries of origin”. [We take “countries of origin” to mean “countries of residence”.]

“He was rather dominant and he would always like to try to take control of the interview situation.  This was a major distraction to us.  It happened several times that Glynstrup seemed more interested in having his perceptions of the situation in Eritrea confirmed by the interlocutors rather than asking open questions and listen to the interlocutors and reflects on their statements.”

The UK Fact Finding Mission Report (UKFFM) materials

The two Amnesty International Reports (AI Report on AA and “Just Deserters”, the two UNCOI Reports of 2015 and 2016 and the witness statement from Elizabeth Chyrum

The UNCOI Reports 2015 and 2016

“All the witnesses and other evidence cited in subsections 1-10 of this section of the report on current human rights concerns detailed violations that took place between 1 June 2014 and the date of issuance.”

Witness statement of Elizabeth Chyrum

The Home Office Country Information and Guidance (CIG) publications on 4 August 2016

C.       ASSESSMENT OF THE EVIDENCE OF PROFESSOR KIBREAB (PK)

D.       FINDINGS ON MAIN GENERAL ISSUES

The general situation

1).          Eritrea is a ‘closed state’ in which independent media have been banned since 2001 and the government has resisted international human rights monitoring by the UN Special Rapporteur for Eritrea, the African Commission of Human Rights and established NGOs such as AI. Even the ICRC, which has a presence in the country, is not given access to prisons. As regards its visit to Sembel prison, HCHR stated that the visit was not carried out “…in conditions that allowed for full human rights or technical assessment…No specific information was provided on the number of detainees, not on their identity, safety, well-being or whereabouts” and OHCHR said it “remained concerned about continued reports and allegations of serious human rights abuses”. There are restrictions on the ability of international diplomats and the representatives of international organisations to travel outside Asmara although some travel takes place through a permission process.

2).          Eritrea is a one-party state.  The only recognised party remains the ruling PFDJ and there is no indication that provisions contained in the 1997 constitution which would have allowed other parties to exist will be implemented or contained within ongoing discussions for a new constitution.

3).          There is a continued undeclared state of emergency which government representatives justify on the basis of the ‘no war, no peace’ policy and continuing concerns about Ethiopian belligerence. Given that there continue to be border skirmishes, it seems unlikely this policy will alter in the near future.

4).          Eritrea operates both ‘official’ and unofficial detention sites, the latter which include underground cells and shipping containers. Detention is often unrecorded.

5).          There is an absence of rule of law. As already noted, the judiciary is not independent, trials fail internationally recognised safeguards and detainees continue to be held for long periods without charge and incommunicado. There are no known internal or external mechanisms to investigate security force abuse.

6).          Torture remains widespread.

7).          Despite recent government indications that it would set an 18 months limit to national service, it has not done so and has disavowed its intention of doing so.

8).          It remains a criminal offence in Eritrean law to exit the country illegally and to desert or evade national service.

9).          MA and MO were correctly decided at the time.

10).      With very limited exceptions Eritreans between the ages of 5 and at least 54 (men) and 47 (women) are prohibited from leaving Eritrea.

National Service

“Those exempt from ‘Active National Service’ are (1) the citizens who have performed national service before the Proclamation; (2) all fighters and armed peasants who have  spent all their time in the liberation struggle (Article 12); citizens who suffer from disability such as invalidity, blindness, psychological derangement” (Article 15(1)).

“Students on a regular daily course may be exempted from Active National Service for a limited period (a) if he is continuing his studies from middle up to secondary grade; (b) if he is following his course of studies in a Professional or Technical School; (c) if after passing university examinations he has been accepted by the university and is following his studies; (d) if he has been authorised as a special case to continue higher studies by the Technical School or by the university; (e) if at any school level he has been required by the government to attend a special course or to be sent on a scholarship.”

People’s Militia

Submissions

Our assessment

Enforcement and punishment

Conditions

Eligibility/duration

Exemptions

Demobilisations/discharges and release

“A distinction should be made between demobilisations and dismissals; demobilisations follow wartime demobilisations; and dismissals take place on an individual basis after the discharge of obligations.”

but observe that there continues to be a lack of clarity both as regards terminology (dismissals and discharges and releases – and sometimes demobilisations - mostly being used as synonyms) and the meaning attached to various terms.  

(i)           a male of 54 years or over;

(ii)        a female of 47 years or over;

(iii)      children of seven or younger;

(iv)      a person declared by an official committee to be unfit on medical grounds to perform any military or national service;

(v)         a person certificated by an official committee to be unable to receive appropriate medical treatment in Eritrea;

(vi)      highly trusted government officials and their families;

(vii)    members of ministerial staff recommended by the department to attend studies abroad.

·   Men aged over 54

·   Women aged over 47

·   Children aged under 13 (some sources state an even lower age)

·   People exempt from national service on medical grounds

·   People travelling abroad for medical treatment and in individual cases for studies or for a conference

·   In some cases, businessmen and sportsmen

·   Former freedom fighters (Tegadelti) and their family members

·   Authority representatives in leading positions and their family members

Submissions

Our assessment

·   Men aged over 54

·   Women aged over 47

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

·   People exempt from national service on medical grounds

·   People travelling abroad for medical treatment (this is now listed as a separate category)

·   People travelling abroad for studies or for a conference [This is now listed as a separate category. We do not think that the EASO qualifier “and in individual cases” serves any descriptive purpose]

·   Business and sportsmen [here again we do not think that EASO’s prefatory words “[I]n some cases” adds any descriptive purpose]

·   Former freedom fighters (Tegadelti) and their family members

·   Authority representatives in leading positions and their family

The 2 per cent tax and the regret letter

Submissions

Our Assessment

Failed Asylum Seekers

Illegal exit by those perceived on return to be draft-evaders or deserters

Submissions

“However MO was promulgated in 2011.  The most up-to-date information available from inside Eritrea notably the [DFFM] Report.....[indicates that as] a result Eritreans who left illegally are no longer considered per se to be at risk of harm or mistreatment amounting to persecution on return.  Consequently, the guidance outlined in MO above should no longer be followed and failure of a person to comply with a reasonable request to pay diaspora tax would not in itself give rise to a well-founded fear of persecution or serious harm.”

“The preponderance of evidence... indicates that there has been no change in Eritrea’s treatment of draft evaders, deserters and people leaving the country without permission.”

Our Assessment

“(iii)....The general position as regards illegal exit remains as expressed in MA, namely that illegal exit by a person of or approaching draft age and not medically unfit cannot be assumed if they have been found to be wholly incredible.  However, 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 inference can be drawn in the light of adverse credibility findings.”

None of the parties has pointed to any evidence indicating the need for a different approach on this issue. We would next reiterate that it is incorrect of the March and September 2015 and August 2016 CIGs to portray (as they certainly do in places) the position set out in MO as being that Eritreans who left illegally are considered to be, per se, at risk.  The MO position was explicitly stated as being subject to three exceptions (see [133iv]). Indeed, UK country guidance has never asserted that the fact of illegal exit from Eritrea is of itself enough to place a person at risk. 

Forcible Returns

Submissions

Our assessment

“A group of Eritreans has returned from [country D] with a letter certifying that they had paid the 2 per cent Rehabilitation Tax and had already been detained several years in [country D].  The witness had himself been imprisoned for three years in [country D].  He was given a permit to return to his home town, but which had to be reviewed every two months.  He left Eritrea again shortly after being deported.  The other case concerned forced repatriation to Eritrea in 2014, where seven older men were reportedly freed, while the younger men who were returned to Eritrea at the same time were not released.”

Draft Evaders and Deserters

National service as slavery or servitude or forced labour

“(1) No one shall be held in slavery or servitude.

  (2) No one shall be required to perform forced or compulsory labour.

   (3) For the purposes of this Article “forced or compulsory labour”   shall not include:

(a)   any work required to be done in the ordinary course of detention imposed according to the provisions of Art.5 of the Convention or during conditional release from such detention.

(b)   any service of a military character, or in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service.

(c)    any service exacted in case of an emergency or calamity threatening the life or well-being of the community.

(d)    any work or service which forms part of normal civic obligations.”

“It is no doubt right that in the modern world a case alleging slavery is perhaps a little unlikely. A case asserting forced labour is less unlikely but, if it arises, would no doubt fall under article 3.”

Article 4: the legal framework

“…the Court will have regard to all the circumstances of the case in the light of the underlying objectives of Article 4 when deciding whether a service required to be performed falls within the prohibition of “forced or compulsory labour…”.

The threshold test

“the assessment which the national authorities must carry out can be based only on a body of evidence which alone is capable of establishing, in view of the circumstances in question, that the situation of that military service makes it credible that such acts will be committed.”

The Eritrean context: the ILO background

Slavery and servitude: our assessment

“[c]onditions in civil service are perceived to be far better than in the army because conscripts may lead a civilian life. They have regular office working hours. Outside working hours, their time is free and they usually have at least part of the weekend off. …Conscripts are free to live with their families, may attend religious services outside of working hours and can get married without restriction or prior authorisation. Some may get annual leave, but others have none. “

“As noted above, the Commission has heard evidence that some conscripts are assigned to work in non-manual labour in government ministries, schools, hospitals and in the judiciary, but that even these conscripts have no freedom of choice”.

Forced or compulsory labour: our assessment

“The length and conditions of work for conscripts, including wages, working hours, place of assignment, leave time and rest days do not per se constitute elements of forced labour. But the open ended nature of national service and the often harsh working and living conditions of conscripts subjected to forced labour have a significant impact on the enjoyment of some rights including safe and healthy working conditions, the right to security, integrity of the person, and the highest attainable standard of physical and mental health”.

Conclusions

Legal

“Country guidance” is an established term denoting judicial guidance and adoption by the Home Office of terminology apt to confuse this important fact is to be deprecated.

Country guidance

1. Although reconfirming parts of the country guidance given in MA and MO, 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

(iv)      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.    

E.        ASSESSMENT: THE APPELLANTS

MST

MYK

1).    In his asylum interview he indicated that his mother had been imprisoned twice and this is entirely at odds with his evidence in his witness statements and oral evidence. There is also internal inconsistency. In the same interview he stated that the second time the authorities came she was not arrested, but threatened, and that she had not been detained twice. However, in oral evidence before us he said the threatening visit when she was not detained was on an earlier occasion to the arrest. There is no mention of this in his witness statements.

2).    Whilst it is reasonable to confuse events in 2011 and 2012, the discrepancies are not limited to simple confusion over dates.  In the asylum interview he clearly indicated that he had been on leave in 2011 and in 2012. This is entirely at odds with the evidence on which he now seeks to rely.  

3).    MYK’s evidence relating to detention is inconsistent in terms of dates and duration. This was put to him during the asylum interview whereupon he changed his account stating that he had in fact been detained for a period of seven months (this fitted with the dates that he had given).  However, the discrepancy is not properly addressed and inconsistency remains throughout the evidence. In his most recent witness statement he still maintains that he was detained for a period of two months whilst in the witness statement of 20 January 2015 his evidence was that he was detained from September 2012 until March 2013.

4).    In oral evidence before us MYK stated that he returned to his military unit in January 2013 and that it was “a memorable date”, but this is entirely at odds with what he said during his interview; namely, that he returned to his military unit in March 2013.  This inconsistency was put to him by Mr Rawat and he stated that when he rejoined his unit he was arrested again. This not only inadequately addresses the point, but he had not mentioned previously having been arrested after January 2013.

AA

The First-tier Tribunal in the cases of MST, MYK and AA materially erred in law and their decisions have been set aside.

The decisions we re-make are to dismiss the appeals of MST and MYK but to allow the appeal of AA.

Signed   

Dr H H Storey

Judge of the Upper Tribunal

APPENDICES

The Evidence of MST

1.       At the hearing before us MST gave oral evidence in Tigrinya through an interpreter. He adopted his witness statement of 16 July 2015 as his evidence-in-chief.  MST was at the date of the hearing before us aged 27. We will record his oral evidence before that contained in his earlier witness statement because the witness statement is a response to the decision to refuse his application for asylum and is not a detailed account of his evidence.

The AIR

2.       MST married his wife on 16 January 2011 and she is still in Eritrea. He attempted to flee Eritrea in 2006 when he was aged 17 to avoid conscription but he was arrested on the border at Ghirmayka and detained underground in Adersere prison for 12 months. He was released without conditions in 2007 and he began national service in February 2009. He completed military service in October 2009 when he escaped from a lorry in Mendefera. He returned to his village on foot. He lived in the wilderness for four years, but fled when the authorities came to his family home and gave his father a final warning. He fled Eritrea on 20 January 2013 using an agent and travelled to Sudan, Libya, Italy, France and finally arriving in the UK.

Oral Evidence

3.       MST’s oral evidence that he gave at the hearing before us can be summarised. He was born in Adi-Mahkok where he was raised by his parents who are peasant farmers.  His family had thirty goats and cattle and grew various crops, but they were not wealthy. They were ordinary.  He started school at the age of 11. He dropped out of school, aged 16, with no qualifications, in order to help his parents. His siblings were in the army. Having dropped out of school, he lived with his livestock in what he described as the “wilderness” or “no man’s land.” His nephew would come and tell him when there were roundups and he would then exercise caution. Roundups were seldom in the small rural village where they lived. 

4.       After working as a shepherd and subsistence farmer for a year he decided to attempt to leave the country. He was not free to take his animals to the market in his home town because he was at risk of being caught by the authorities.  He wanted to leave because he could not have a peaceful life in Eritrea. His siblings had all been conscripted. They were the property of the State and like slaves. They were all denied leave to visit their parents. His eldest brother was married with children and unable to look after them.

5.       When he was aged 17 he travelled to Asmara by car and then headed to Sudan on foot. After 20 days he was captured in Ghirmayka, on the border with Sudan, and detained in Adersere Prison for twelve months.  He was held in an underground dungeon. The temperature was boiling and conditions generally poor. He was given three pieces of fermented bread to eat each day and dirty water to drink. 

6.       MST provided the authorities with a false name and false date of birth and misled them into thinking that he was under the age of conscription. Following this he was released in 2007 rather than forced to do national service. He cannot remember whether he was asked about this in his interview with the Home Office.  He returned to his village where he continued to hide with his livestock.

7.       MST says he started national service on 1 February 2009, at the age of 20. He accounts for this by having given false details when he was detained. He was sent to Wia training camp for eight months where life was miserable, but slightly better than that during his incarceration in Adersere Prison. It was very hot and the food was inadequate. The conscripts were beaten with a stick and put under the sun.  He completed military service and was to be posted to a unit.

8.       Whilst being transported in a lorry to his unit he managed to escape.  He did not know where he was going, but he recognised the area when passing Mendefera and at that point in the journey he escaped by jumping from the lorry.  It was market day and it was crowded. He just kept on running and did not look back. He made his way back to his village which was 80 km away. He removed his military overalls. He was wearing light clothes under this and he was given a top and some pants by people he met. He made his way back home on foot, using back routes. The journey took him about two days. 

9.       MST remained in hiding between 2009 and 2013. He lived with his livestock. He married on 16 January 2011.  His wife was aged 22.  She was not doing national service. They stayed in his family home for about a month during their honeymoon and afterwards he rarely saw her as he returned to live with his livestock.  

10.     The authorities were conducting frequent roundups and he decided to flee after his father was given a final warning for him to surrender to the authorities and informed that he would be responsible should his son not surrender.

11.     MST has been in contact with his family since he has been in the UK but that was only once and he does not know where his father and uncle are.  The authorities did not take action against his father. 

12.     His paternal uncle arranged for an agent to take him to Sudan and the agent and MST travelled on foot across the Sudanese border.  He made his way to Khartoum and from there he travelled on the back of a lorry to Libya where he resided for a year and four months. During most of the time he was in Libya he was in Ganfuda Prison.  When celebrating Eid-al-Fitr detention was relaxed and he escaped. He travelled to Italy. This was paid for by his family selling livestock.  He continued his journey to France and then to the UK.  He did not claim asylum in Italy or France.  He was told by the smugglers to continue his journey to the UK. 

13.     At 1.9 of the screening interview MST was asked about his occupation and his answer is recorded as unemployed/completed national service.  His evidence before us was that this must be an error because no one would say that they had completed national service because it is endless.  It is also an error when he described himself as single.

14.     MST was given an ID card in Eritrea in 2007.  He denied having told the First-tier Tribunal that he had been given an ID card in 2008. He had not received call-up papers. He fears return to Eritrea because he has absconded from national service and left Eritrea illegally.  He would be subject to imprisonment and he would also be conscripted and he does not want to be a soldier for the rest of his life.

Witness Statement of 16 June 2015

15.   MST’s witness statement is brief and a response to the decision to refuse to grant him asylum.  He said he was not married in the screening interview because he thought that the question was whether his wife was in the UK.  The final warning given to his father was verbal. He is wanted by the authorities but he does not know whether there is a warrant for his arrest.

The Evidence of MYK

16.     MYK has made three witness statements. The first witness statement is dated 9 August 2014. He was interviewed by the Home Office on 19 November 2014 and the respondent relies on the Asylum Interview Record (AIR).  He has produced two further witness statements, of 20 January 2015 and 7 June 2016.  He gave oral evidence before and he adopted his witness statements as evidence-in –chief.

Witness Statement of 9 August 2014

17.     MYK was born in Segenetiy, Eritrea.  He married his wife in an arranged marriage on 15 January 2012 whilst on leave. He last saw her in January 2014 and they have one child, a son, born in March 2014. He left Eritrea on 11 January 2014. He attended school between 1998 and 2006. In February 2006, he was rounded-up by the authorities whilst at school and taken to Wia Military training camp where he stayed for three weeks.  He was then dispersed to Assab where he remained for nine months. The training there was very tough and exhausting. He was then dispersed to Gelalo in around December 2006 where he remained for about a year before being re-deployed to the Gash Barka region where he was a guard.  In December 2010 he was relocated to Tokombya.

18.     He was given home leave for a month in January 2012 and he did not return. He went into hiding for six or seven months. The authorities came searching for him in August 2012 and they arrested his mother and she was placed in detention for about a month. As a result of his mother’s detention, in September 2012, he handed himself in and his mother was released the same month.  He was detained in Alebu detention centre for two months where he was detained in appalling conditions and mistreated. After two months he was released and re-joined his unit. He requested home leave in 2013 and this was refused. He left in May 2013 without permission. He returned home and went into hiding. During this time the authorities came to his house to look for him. They did not arrest his mother because she was unwell. He received a call up letter in January 2014 which gave him until later that month to hand himself in. He then decided to flee Eritrea. He left the family home on 6 January 2014 with the help on an agent. This was arranged and paid for by his family. He arrived in Sudan on 11 January 2014. He arrived in Khartoum on 12 January 2014 where he remained until 18 March 2014 living under the constant fear of deportation. It was common for the Eritrean authorities to come to Sudan and with the Sudanese authorities to deport Eritreans.  He left Sudan with an agent who was paid by his uncle (who lived in Eritrea).  He travelled to Libya by lorry through the Sahara desert arriving in Libya on 5 April 2014.  In Libya he was detained in appalling conditions in a prison near to Tripoli for approximately three months. He was regularly beaten and forced to carry out hard labour.  On 6 July 2014 he managed to escape. He was with a few prisoners who scattered in different directions and it was at this point that he took the opportunity to flee.  He managed to avoid being shot by the Libyan authorities and made good his escape.  He caught up with two other escapees and was able to make contact with the agent who had taken him to Libya.  The agent took them to his home in Tripoli where he stayed for a week before leaving Libya on 13 July 2014.  His friends in Israel paid the agent who then took him to Italy. He arrived in Sicily on 14 July 2014.

19.   He was not fingerprinted by the authorities in Italy.  He was taken to a compound where he was able to escape after two hours of arrival. He made his way to Catania where he met an agent who took him and three others to Rome where he stayed in hiding. He did not make a claim for asylum there.  He did not feel safe in Italy having seen Eritreans living on the street.  On 17 July 2014 he left Italy arriving in France the next day and travelling to Calais where he stayed (in “the jungle”) until 23 July 2014. Friends paid the costs of the agent to take him to France.  He did not claim asylum in France because he did not have the opportunity to do so and he did not know how to claim asylum there.  He was advised that should he claim asylum in France the authorities would deport him to Eritrea. With others he managed to travel to the UK in the back of a lorry on 23 July 2014, arriving on the same day.  He was arrested in Derby on the same day whilst still in the lorry and he claimed asylum.

The AIR

20.   MYK was interviewed by the respondent on 19 November 2014. He stated that he went on home leave in 2011 and when it was put to him that in his witness statement he said he went on leave in August 2012 he stated (at Q130) that he “went on both occasions”.  He then said that he went on leave in 2011 and stayed for seven months in August and did not return (see Q132).  When he was asked why he said that he had left on two occasions he said that what he meant was that he stayed and that he was still at home in 2012 (see Q132 and Q133). He stated that it might be a mistake in his witness statement that he had been given leave in 2012 (see Q134). He stated during the same interview that he left military service in January 2012 and did not return for seven months and that he had been confused when he said that he went on leave in August 2011 (see Q153). 

21.     When he did not return to his military unit he was sent a call-up letter and his house was searched (see Q135 and Q136).  He received in total two call-up letters (the first when he failed to return to his unit on the first occasion and the second when he left without permission). The authorities came looking for him on two occasions (see Q139). He returned to the military unit in March 2012 (see Q143) in response to his mother’s arrest.  His mother was imprisoned on two occasions (see Q148). They took her on the first occasion in December 2012 (see Q149). He later changed this to August 2012 (see Q150).  He stated (see Q202), having been asked about the second time that his mother had been detained, that it was after they sent the second call-up letter.  He then stated that it was at the end of 2013 (see Q225) but that this time she had received a letter and they did not take her and that she has not been detained twice. The authorities had put pressure on her on the second occasion (see Q228).  He then stated that he had left the country and did not know what had happened after that. 

22.     MYK stated that he returned to his military unit in March 2013.  It was put to him in his interview that in his witness statement he had indicated that he had been detained for a period of two months and that if he had handed himself in in August 2012, as he asserted was the case, and was then detained for two months, this would leave a number of months unaccounted for, if he did not re-join his unit in March 2013. In response to this he stated that he was initially working as a prisoner on a farm for two months and then for two months as a normal worker on a farm.  After this he had escaped and stayed at home for eight months.  He then stated that he had stayed on the farm in detention until March 2013 (see Q190) and had been in detention for a period of seven months.  He served with his unit for seven months before escaping in May 2013. 

The Witness Statement of 20 January 2015

23.    In the witness statement of 20 January 2015, he stated that he was given leave on one occasion in January 2012 and that he did not have leave in 2011. He was sent a call up letter in 2012 which he had forgotten to mention previously. He was detained in Alebu detention centre for five months from September 2012 until March 2013.

The Witness Statement of 7 June 2016

24.     In the witness statement of 7 June 2016, MYK’s evidence is that he is not prepared to sign a letter of apology and admit that he left Eritrea illegally having deserted. He is unable and unwilling to pay the 2 per cent tax. 

Oral Evidence before the UT on 7 June 2016 

25.     At the hearing before us MYK was aged 31. He gave oral evidence in Tigrinya through an interpreter. He adopted three witness statements as his evidence-in-chief.

26.     MYK said he had had an Eritrean ID card, but he lost this in the desert en route to Libya. He has not been able to contact his wife in Eritrea. He tried to make contact with her through friends, but to no avail. He has been informed by Eritreans who have met her about the birth of his son. He has not attempted to contact her since he has been in the UK. She does not have a mobile phone. His wife did not do military service after they married.

27.     MYK was given leave from his unit in 2012, but he did not return. He was on the run for six or seven months before handing himself in. He handed himself in in December 2012 following his mother’s arrest which came about because he had not returned to the military unit. This was the only time that she was arrested. In his asylum interview he made reference to a time when soldiers came to the house and threatened her, but she was not arrested on that occasion. 

28.     Having handed himself in, he was detained for two months and then he returned to his unit in January 2013. When the discrepancy in dates was put to him, MYK said that he was moved from prison to prison and cannot remember how it happened although he remembered returning to his unit because it was a “memorable day”. It was put to him that he had in his interview stated that he returned to his unit in March 2013 and he then stated to us that when he returned to his unit he was arrested again and he was not thinking clearly in his interview. He served for about eight months before he escaped. He received call up papers in January 2014 before he left Eritrea. The papers were given to his mother. As a result of this he decided to flee, but it had always been his intention to leave Eritrea. He left on 6 January 2014 with an agent and fled to Sudan.  He did not know how his family raised the money in order to pay an agent to help him leave Eritrea or how they managed to do this in such a short period of time (since receipt of the call-up letter in the same month).  He left Eritrea illegally on 11 January 2014.

29.        MYK said he had fled Sudan on 18 March 2014 with the assistance of an agent and travelled to Libya.  His maternal uncle in Eritrea paid an agent to make the arrangements.  MYK did not have his uncle’s telephone number with him, but he was able to make telephone contact with him with the help of Eritrean friends living in Sudan. He was able to contact his friends in Israel with the help of Eritreans and agents. Other Eritreans helped him to pay the agent to take him to Rome.  He did not want to claim asylum in Italy having seen Eritreans sleeping rough there.

The Evidence of AA

30.     AA relied on the evidence that was before the First-Tier Tribunal. He produced a witness statement of 22 September 2014 and he gave oral evidence before the First-tier Tribunal. He also relied on evidence relating to his mental health. AA relied on a witness statement from Ann Robinson, a Deputy Manager at Chalkhill St. Martin of Tours where the appellant was at that time residing and Ms Robinson attended the hearing before the First-tier Tribunal.  We do not have a copy of her witness statement, but her evidence has been recorded in the decision.   There was before the First-Tier Tribunal a report from Consultant Clinical Psychologist, Mr Nicholas Stokes of 12 August 2013; a letter from Consultant Forensic Psychiatrist, Dr Francis Fernandes of 27 August 2013 and a psychiatric report prepared by Dr John Jacques of 9 September 2014. 

31.     AA has produced more up-to-date evidence about his mental health. There are three letters from Dr N Larsen, a Locum Consultant Forensic Psychiatrist; the first of 27 April 2015 to Ziadies solicitors; the second of 24 March 2016 to Roelens solicitors and the third of 27 May 2016 to Roelens solicitors.  There is a report written by AA’s key worker, Adebisi Ayoade of 6 May 2015, a letter from the Eritrean Community in Lambeth of 9 September 2014 and an expert report from Dr S A Bekalo of 20 April 2015. 

32.     AA’s evidence is contained in his witness statement of 22 September 2014. There is no challenge to the evidence as set out by the First-tier Tribunal in their decision. AA’s father was born in Eritrea but his origins and tribal roots are in Ethiopia. His mother is from an Eritrean tribe. They fled Eritrea.  AA was born in Sudan in a non-military camp. His family went to Saudi Arabia when he was three months old and he was raised there. He came to the UK with the help of an agent.

33.     AA’s evidence was that he had returned to Eritrea on one occasion in 1992, after the War of Independence, and stayed there for two or three months. He found the experience frightening. His family reside in Riyadh and his older sister lives in Canada. He has a cousin and an uncle living in the UK. They did not attend the hearing before the First-tier Tribunal.  He speaks to his parents every four or five months and he misses his family.  He can speak and understand Tigrinya although he does not have a good accent and he cannot read the language.  He would be able to say a few words in the Tigrinyan language about his diagnosis and how long he has been in hospital. He has no family or friends in Eritrea.  His mother has relatives there, however her brothers and sisters have married and left the country.  AA believes that the house belonging to his mother’s parents is still there. Should he return to Eritrea he does not believe that his relatives would be able to help him settle there and his parents are elderly and would not be able to help him.

34.     AA was referred to a community health mental team in 2005. He was detained at the Three Bridges Mental Health Unit between 2007 and January 2014 (following conviction). Since January 2014 he has been at Chalkhill where he receives nursing support and he is able to go out into the community.  He sees a doctor every six weeks as well as his community psychiatric nurse (CPN).

The Evidence of Ann Robertson

35.     Ms Robertson’s unchallenged evidence is set out in the decision of the First- tier Tribunal. She is a qualified nurse with forensic experience and general mental health experience. She sees AA in the morning and administers his medication.  He requires a high level of input from staff. His condition has improved and he engages more and displays less anxiety.  There were difficulties regarding his medication. He suffered horrendous side effects from the drug risperidone.   He would get up in the morning and then be “wiped out” and would not engage with anybody.  His face and tongue were affected.

36.     So long as AA is monitored at the current level, whilst there is always a risk, if things continue as they are, Ms Robertson has no concerns.  If his appeal is dismissed Ms Robertson would not be surprised if he suffers a relapse and should he be removed there would be a quick deterioration in his mental health and stability. Should he return to Eritrea, with no medication, Ms Robertson finds it hard to predict what the result would be, but believes that within a couple of weeks there would be symptoms and AA would deteriorate quickly.  He requires a lot of support. 

The Evidence of Dr N Larsen

37.     Dr Larsen’s letters were not before the First-tier Tribunal. In his first letter of 27 April 2015 he confirms that support and monitoring provided in the 24 hour supported accommodation is essential to AA’s ongoing stability and that he is at high risk of relapse into acute schizophrenia with significant risks to himself and others should his mental state be de-stabilised by significant stressors and that deportation to Eritrea would be a significant stressor. In his second letter of 24 March 2016, having been requested to give an update, he confirms that AA requires long-term treatment with anti-psychotics due to the chronic nature of his mental illness and the risk of relapse should he discontinue medication. If he relapses Dr Larsen would expect a return of the previous symptoms. 

38.   In the most recent correspondence, Dr Larsen considers the respondent’s position that a number of antipsychotic drugs are available in Eritrea; namely haloperidol, chlorpromazine and fluphenazine.  Dr Larsen confirms that AA has not been previously prescribed any of the drugs purported to be available, but that he learnt from AA that he has previously been prescribed olanzapine, risperidone and amisulpride which are all antipsychotic drugs.  AA informed him that olanzapine was discontinued due to excessive weight gain, risperidone was discontinued due to troublesome side effects and amisulpride was discontinued due to lack of clinical progress.  Haloperidol is not uncommonly prescribed in psychiatric wards, particularly in cases of acute agitation which are not uncommon on initial admission to a psychiatric service and it is possible that AA has been previously prescribed this.

39.     All antipsychotic medications have possible side effects. AA has a history of sensitivity to the so called extrapyramidal side effects (EPSEs) of risperidone. Although medication to counter side effects can be prescribed they are of variable efficacy and Dr Larsen is unsure whether they would be available in Eritrea. Fluphenazine and haloperidol result in pronounced EPSEs although the effect on AA cannot be accurately predicted. Chlorpromazine is noted to be of moderate potential to cause EPSEs, but a well–established side effect is sensitivity to light.  Dr Larsen would have reservations about prescribing any of these drugs to AA without clinical trial. The therapeutic efficacy for switching drugs is difficult to predict. One needs a strong clinical argument and robust risk management plan in place. It is very likely that AA would experience side effects from the three drugs and there is a strong clinical argument for continuing quetiapine in his case.

          The Evidence of Dr John Jacques

40.     Dr John Jacques was instructed by Ziadies Solicitors in order to prepare an independent psychiatric report on AA. In his report of 9 September 2014 he concluded the following:

(1)     AA has a good insight into his mental health problems and past drug use.

(2)     AA’s mental state has been stable and has started to improve.

(3)     Expulsion would interfere with his mental health.  It is most likely that the stress of immigration proceedings has contributed towards his anxiety symptoms which have caused concerns. 

(4)     AA receives treatment and support in the community and his most recent problems have required a higher level of input from mental health and support services.

(5)     AA receives support from a consultant forensic psychiatrist, community psychiatric nurse and vocational support worker.  He has a key worker allocated to him at the 24 hour specialist mental health hostel where he lives.

(6)     There is concern that if AA is deported to Eritrea he would suffer a relapse. His relapse signature is one of rapid deterioration in his mental state and behaviour potentially leading to violence as well as self-neglect.  It is therefore important that he receives treatment.

(7)     AA would not receive the same treatment or support in Eritrea.  Eritrea does have access to some antipsychotic treatments and basic community support but the medication he receives, quetiapine, is, according to the Home Office, not available in Eritrea.

(8)    AA developed side effects from the alternative drug, risperidone, which included persistent orofacial dyskinesia and hyperprolactinaemia when he was prescribed this medication in 2009.  These conditions can be disabling and distressing and there is a risk of permanent irreversible movement problems if the problem is not addressed by stopping the offending medication.  Hyperprolactinaemia can have significant problems particularly for men with sexual side effects (breast development and lactation).  It is not clear whether AA developed any side effects in relation to hyperprolactinaemia but records indicate that he developed involuntary twitching of the face and tongue which led to discontinuation of the treatment and subsequent resolution of these symptoms.

(9)     The respondent makes reference to other antipsychotic treatments being available in Eritrea but such treatments are widely known to cause hormonal problems and may be less effective in preventing relapse and schizophrenia. 

(10) AA’s death may be expedited if he were unable to access the treatment.  Individuals with schizophrenia have a significantly higher risk of suicide compared to the general population.  His mental health would be at risk of deterioration if he were to leave the United Kingdom for Eritrea because he would be unable to access the treatment and support he requires and he will find adjusting to a new country very difficult without the support from friends and family and he is fearful of being attacked.

  The Evidence of Dr Bekalu

41.     In summary Dr Bekalu concluded that if the appellant is returned, the authorities will know that he has not completed national service, he is highly likely to face serious risk on return and he would most likely be subjected to limitless national service.

The Evidence of Adebisi Ayoade

  42.    Mr Ayoade is AA’s key worker and he provided a report of 6 May 2015 which confirms that AA is currently on quetiapine and is prescribed 400 mgs in the morning and evening and that he has been self-medicating for a month on his evening medication only.

The Background Evidence of Mental Health Problems in the Context of National Service

  Amnesty International report of 22 September 2015

43.   In so far as this report engages with the issues that arise in AA’s case, it is asserted that there is no functioning and reliable process of assessing medical fitness for national service. The Sawa training facility did not have a routine health assessment on arrival or at any time.  The same is true for other camps. Permission to see a doctor or a designated first aid officer must be granted by a commanding officer and it is extremely difficult to obtain. If assessed, resources are very limited.  It is difficult to speak with a great degree of certainty about the likely outcome for AA if deported because his situation is unusual. However, anyone forcibly returned from Europe to Eritrea potentially faces distrust and suspicion and there is a risk that he will be treated as someone who has tried to flee, the consequences of which are forcible conscription or arbitrary and indefinite detention.  He is unlikely to be able to obtain medical exemption as he lacks experience and the contacts necessary. Recognition of mental health difficulties is harder to obtain than physical health problems. In any event, such exemptions are sometimes ignored in round-ups or call ups. If conscripted it would be for an indefinite period and constitute forced labour. 

UNCOI 2015

44.        The report of 4 June 2015 at [60] concludes that being exempt from national service is very difficult particularly for men. Persons with disabilities are conscripted for military instead of civilian service.

45.        Examples are cited within the report of 5 June 2015 of witnesses (with physical injuries) who had not been exempted and forced to remain in military service despite having been declared unfit (see [1196]). The Commission concluded that the exemptions on health grounds are rarely granted, even though the state of health of the persons concerned prevents them from serving in the military.  There is evidence of blind and seriously visually impaired people being sent to Sawa (see [1197]).

UNCOI 2016

46.   There is an example given within the report at [92] of a witness who in 2014 was unwell with papers to establish this, but who was not believed. The witness reported being detained for six months without due process. 

          Just Deserters December 2015

47.  Amnesty documented (at page 28) reports from former conscripts who told of people with disabilities being conscripted and taken to Sawa for military training. There is no health check or assessment of physical or mental fitness when people are first conscripted and sent for training or at the end of the year at Sawa. Medical assessments are carried out on an ad hoc basis, and usually only if the conscript repeatedly requests it. To obtain an exemption a doctor has to recommend that the conscript is unfit to serve, whether for physical or mental health reasons and this recommendation has to be confirmed by a military commander.  Those with health problems have been assigned to national service and the report makes reference to a former conscript with a (physical) health problem who spent three years in national service and another former conscript who had severe injuries to both legs following a car accident. Although the commander concluded that he could not carry out physically demanding tasks, it was decided that he could work. The source stated that this is not a medical decision, but a decision of the Commander. The individual was assigned to administrative work, but he was told there was no pain relief and not granted permission to see a doctor.

The appellants also submitted a transcript of the testimony of Helen Gebreklak dated 21 May 2016 with a certificate of translation. Her evidence touched upon, inter alia, the delays persons in custody face in having their medical complaints dealt with.

Upper Tribunal

(Immigration and Asylum Chamber)                                   Appeal Number: AA/11206/2014

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE HANSON

Between

[MYK]

                        Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Howard of Fountain Solicitors.

For the Respondent: Mr McVeety – Senior Home Office Presenting Officer.           

ERROR OF LAW

1.            This is an appeal against a determination of First-tier Tribunal Judge C Mather promulgated on the 17^th February 2015.

© CROWN COPYRIGHT 2016

Background

2.            The Appellant is a national of Eritrea born on the 15^th August 1987. He claimed to have left Eritrea on 6^th January 2014 and travelled via Sudan, Libya, Italy, and France, before arriving in the UK. He claimed asylum and was interviewed on 19^th November 2014 and the claim was refused.

3.            The Judge found the Appellant not to be a credible witness. In paragraph 17 of the determination it is recorded that the Appellant was unable to give consistent evidence which is said to go to the core of his claim for the reason set out in the refusal letter. No other reasons have been provided.

4.            In paragraph 18 the Judge found it not credible that the Appellant did not know how much his mother paid the agent or the agent’s name, but gave no reasons.

5.            In paragraph 19 the Judge refers to conflicting evidence by reference to paragraphs 15(i) and (v) of the determination but fails to give reasons and it is not clear what conflicts are being referred too.

6.            In paragraph 20 the Judge found the Appellants evidence incredible in relation to how he was able to contact various agents and friends “who magically paid agents for the Appellant during his journey”. The terminology used perhaps reflects the lack of acceptance of the Appellant’s account in the mind of the Judge but no reasons have been given in support of this finding.

7.            At paragraph 23 the Judge accepts the Appellant’s nationality and that he undertook his national service. His date of birth of 15^th August 1987 is not disputed making him 27 and within the age range of those eligible to serve in the military. At paragraph 24 the Judge states: