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:

EVIDENCE OF PROFESSOR KIBREAB (PK)

Report on AA, 23 September 2015

1.            The first report prepared by PK dated 23 September 2015 was at the request of AA’s representatives.  In addition to a number of questions about country conditions in Eritrea the report addressed a number of points concerning medical issues.

2.            PK described his initial involvement in the DFFM Report, his disassociation from it and the subsequent criticisms he made in the public realm.  With reference to the critique he wrote immediately after the report was released, he reiterated that he believed the conclusions of the report were what the DIS wanted to establish from the outset.  He deprecated the DFFM for wrongly assuming that no empirical knowledge on Eritrea could be generated without visiting Eritrea.  He found it unsatisfactory that apart from himself and Ato Kebede the DFFM Report does not identify any of its sources.  He said that the interlocutors who were representatives of western countries “have clear vested interests in terms of stemming the flow”.  He said the DIS team had distorted most of the information he provided.

3.            PK said that despite the DFFM’s evident flaws the UK Home Office based most of its guidance on this report.  He cited the IAGCI critique of the DFFM Report and its recommendation that the two March CIGs should no longer be used pending a review.  He referred to his publication on 25 March 2015 of a commentary ”Some Reflections on the UK Home Office Country Information Guidance Eritrea: National (incl. Military Service and Illegal Exit), March 2015”.  PK acknowledges that the two September CIGs, whilst still referring to the DFFM, draw on it in combination with other country reports and was more nuanced and covers the 2015 UNCOI Report. 

4.            PK then addresses the direction of national service, taking issues with the Home Office position that it is generally between eighteen months and four years, the medical exception.  In relation to the return of Eritreans, PK said the Eritrean authorities would know if some had exited illegally and ill-treatment may result.

Report by PK, 29 February 2016

5.            After outlining his qualifications and experience, PK reproduces almost word for word the contents of his Report for AA, mentioning his criticisms of the DFFM for its “unsound methodology and unreliable sources” and distortion of information he provided; stating that he never conveyed that draft evaders and deserters are no longer routinely subjected to severe punishment; that he had a “dense network of informants inside Eritrea” built up over time.  In very similar terms to his report on AA, he addressed the various responses that had been made to the DFFM Report and the UK Home Office’s heavy reliance on it for their March 2015 CIGs, the subsequent critique by the IAGCI and Professor Campbell of these documents, and his recognition that the September CIGs were more nuanced.  He reiterated that national service remains indefinite. 

6.            PK then turned to further instructions he had received asking him to comment further on other “wider” issues which the Upper Tribunal had directed to be addressed.

7.            As regards illegal exit and its consequences he said he rejected the assumption that those who left Eritrea illegally no longer face any risks of persecution.  He considered this assumption to underpin the DFFM Report and the Home Office CIGs including the September 2015 CIGs which in common with the March ones he found “uncharacteristically of lower standard and devoid of evidence”.  He commended the Landinfo Report of March 2015 which had warned about the problem experienced in obtaining information about Eritrea and the likelihood of “round-tripping” or fake confirmations. 

8.            PK stated that the overwhelming majority of those who leave the country do so illegally because the issuance of exit visas is highly restricted.  Having cited the categories of persons cited in the EASO Report of 2015, PK said that with the exception of children the categories were consistent with those he had identified to the Tribunal in MA in 2007.  His own findings showed that the Eritrean government denies exit visas to children between five and seven.  He considered that the category of former freedom fighters and their family members was too broad as it was really confined to those enjoying connections to the President and his inner circle.  The same was true of authority representatives. 

9.            In his conclusions PK added that whilst category (iv) of MO (a person declared by an official committee to be exempt from national service on medical grounds) remained the same, the government had introduced stricter controls for MO category (v) (those seeking medical treatment abroad).  Owing to the need for specialised skills required by government departments, there are people who can get visas for skilled work, but the process of vetting based on loyalty has become more severe.  The number that leave for the purposes of further training has diminished considerably because of the numbers leaving unlawfully and those who leave lawfully but fail to return.  The repressive nature of the regime in Eritrea made it impossible to document what happened to failed asylum seekers, but it was “safer to assume” that deserters would be detained incommunicado indefinitely.  The only evidence-based case he knew of concerned the posting on the Eritrean website assena.com on 16 February 2016 of the case of Berhane Embaye who had fled to South Sudan whilst serving in the army and on being “cajoled” by the government to return, disappeared soon after his arrival.  This action, PK considered was “typical of the treatment the Eritrean authorities accord to those whom they suspect of disloyalty”.  The Eritrean government’s claim that only those who did not commit an offence are exonerated mean that only those who left legally after being demobilised are unlikely to face punishment.  Payment of the diaspora tax does not immunise those who exited illegally from punishment.  The reason why the Eritrean government introduced the repentance letter was to discourage exiles from joining opposition groups in the diaspora: it has no other significance.  It amounts to a willingness to accept punishment. 

10.        As regards those Eritreans who were returning to visit, they were naturalised and the Eritrean authorities did not detain them except in exceptional cases.

11.        As regards exemptions, he considered there had been little or no change since MA and the numbers were likely to be insignificantly small.

12.        PK said it was possible for those who left Eritrea illegally to obtain an Eritrean passport, although many were reluctant to do so.

13.        There was no evidence, PK said, that the Eritrean government has a more “relaxed” attitude towards those returning to Eritrea who left illegally.  His statement to the DFFM did not state this.

14.        Those who left Eritrea illegally but return when they are below draft age will be required to do national service but are unlikely to face other consequences.  Those who return after reaching draft age are also unlikely to face other consequences unless their reason for departure was to avoid conscription.

15.        In the main body of his report PK said he considered that the Eritrean authorities still treated the benchmark age for imposing exit visa restrictions as eight years old, but in his conclusions he said the age was now reduced to five years.

16.        As regards adults, PK considered that there was no longer a 54 year limit for men and 47 age limit for women.  It was now 70 for men and 60 for women following the introduction of the people’s militia, although it was very unlikely that women over the age of 47 would be required to serve in the national service.  Both men and women in the people’s militia can apply for permission to leave the country through their unit commanders. 

17.        As regards the question whether the requirement to undertake national service put the person at risk of persecution or serious harm, PK agreed with the characterisation by the ILO that the Eritrean national service regime involved forced labour.  The hundreds of thousands of conscripts are seldom involved in military-related activities, most being involved in manual labour on construction sites, agricultural farms, housing projects belonging to the government and the PFDG as well as senior military officers.  Many also work in the civilian sector of the administration.  A person subjected to forced labour against his/her will under the menace of severe punishment is undoubtedly suffering persecutory treatment.

18.        PK said conditions in prisons and detention sites were severe everywhere, most taking place in shipping containers and/or underground dungeons.  Common problems mentioned by former detainees are beatings, overcrowding, lack of sanitary facilities and shortage of food, water and ventilation.

19.        PK considered that the open sources and data gathered from former conscripts indicate that desertion is severely punished by the government, there are no rules applied consistently.  Given the vindictive nature of the Eritrean authorities they are likely to punish re-conscripted deserters and draft evaders severely.

20.        PK gave answers about exemptions from being conscripted for former liberation fighters, those declared unfit.  He was adamant there had been no demobilisation for those within the age of conscription.  As regards the people’s militia, it runs parallel to the national service and all citizens between 18 and 70 are eligible to join.  Members are required to receive military training and carry weapons and are required to do unpaid manual work in development projects of different kinds. 

21.        Although the government’s plan is to recruit throughout the country, so far only some regions such as the Central, Southern and Anseba are affected.  Those who refuse to respond to the call for service can face serious consequences such as loss of ration cards and imprisonment.  There are no exemption categories.  The consequences for those fleeing the country to avoid the people’s militia and then returning are likely to be the same, “but I am speculating”.

22.        Some of PK’s conclusions have already been noted.  His two principal conclusions are that:

“ There is no evidence to suggest that the Eritrean authorities’ hostility to those who desert from or evade the Eritrean NS [national service] and subsequently flee the country has diminished”

and

“ In light of the restrictive categories of those allowed to leave Eritrea lawfully, the great majority will be perceived as having left illegally.  Save for very limited exceptions, returnees will face serious harm.  This will not be avoided by the payment of a 2% tax and/or letter of apology.  Rhetoric notwithstanding, nothing has changed on the ground.”

23.        The professor’s report was subsequently modified in minor respects on 4 April 2016.

Reflections on Home Office FFM, 21 April 2016

24.        PK has also provided a critique of the Home Office FFM based on visits in February 2016.  He takes issue with the presence of a representative of the MoFA in most of the interviews and the presence of an interpreter provided by the MOFA during the interview of returnees interviewed in Tesseney.  He considered that a good number of the interviewees had to be viewed as pro-government sources unlikely to be objective.  The fact that these interviewees all seemed “to sing from the same hymn sheet” reinforced that view.  He considered the quality of the three anonymous interviewees was “indisputably far superior to any other data the FFM gathered during the mission”.  PK then comments on the contents of a number of interviews, notably agreeing with the British Ambassador on some points but not on others.  He was particularly disparaging about the evidence given by the head of the government’s political officer, Yemane Gebreab.

25.        In the course of dealing with some of the UKFFM interviews, PK offers further evidence of his own.  For example PK said it has been the policy of the Eritrean government for some time that, if a person who lives abroad and is within the age of conscription returns to Eritrea and stay for a year or more, he will be required to do national service.  He said he knew of several people affected by this policy who routinely leave the country for short periods and return with stamps on their passports of foreign countries to show they have been away.  “This may also be seen in the exit visa issued by the Eritrean authorities when they leave the country”. 

26.        In reaction to the UNMS interview, PK considers that those going back to Eritrea on holiday “is a small proportion which is close to the regime”. 

27.        PK concludes that in the absence of verified data and in the light of the government’s prevailing dismal human rights record and the dearth of political and economic reform, it is safe to assume that those who fled illegally and are forcibly deported would face persecutory treatment.

28.        It was PK’s view that the data in the notes of the FFM indisputably indicates that the national service is devoid of uniform rules, which is also consistent with the findings of his own studies over many years.  He was critical, however, of the virtual silence in the FFM notes about the prevalence or absence of corruption.  He found it difficult to accept that those working for embassies and mining companies were 100 per cent demobilised.  Round-ups and the shoot to kill policy continue.

PK’s answers to written questions submitted on behalf of the Secretary of State

29.        In reply to written questions from the respondent seeking clarification of aspects of his report, PK sent his answers in April 2016.  He noted and regretted that his initial report did not conform in all respects with the Practice Direction of the Immigration and Asylum Chamber of the First-tier and Upper Tribunal, 13 November 2014.  He sought to clarify various aspects of the use of sources and informants who included refugees and asylum seekers, the latter whose information was likely to be more up-to-date.  PK accepted that when the DIS team had asked him for feedback on the draft DFFM they had sent him, he had emailed “Thank you for the well-written report” without even opening the email attachment.  He was under great pressure running three MSc programmes at the time.  He believed that the head of the DFFM had then agreed to give him time to send corrections to what he had by then learnt were distortions.  However, Mr Glynstrup then emailed back saying they were going public immediately. 

30.        PK said his criticisms of the DFFM Report were of the main body of the report but the problem remained with the interview material namely that Messrs Olsen and Olesen had cast doubt on whether the underlying interviews were themselves reliable, given the use of leading questions and Mr Glynstrup’s fixation with achieving a specific result. 

PK: Oral Evidence

31.        Much of PK’s oral evidence covered the same grounds as his written evidence.  He explained that he had prepared his report for AI before he was aware it would be used for the country guidance case; he did not learn he had been jointly instructed by all three appellants until 23 January 2016.  In April he made revisions in his February 2016 Report so as to add a ‘Conclusions’ section.  He accepted that this had led to him omitting paragraph 1.5; he did not know how this had happened.  He accepted he should have made an effort in his February Report to cite the correct Tribunal Practice Directions.

32.        PK said that when concluding his research in 2013 he assembled his 190 respondents by using the snowball or “chain referral” technique.  It was indicative rather than conclusive but one could rely on it if properly carried out.  The limitation is that you cannot get as diverse a group of respondents but he had a built-in method for correcting this by identifying multiple sources (using different ethnic groups etc).  He accepted that if not used with care this technique could result in “roundtripping”. 

33.        Asked about the extent that his research on Eritrea was up to date, PK said he had conducted about 20 interviews since 2012 and a further four interviews with Eritrean sources since 3 March 2016. These 24 came from different backgrounds; they were all people who had fled national service; all were under 30, some women, some Christians; some who had fled as recently as end of 2015 and two who had fled in 2016.  He gave details of two examples.  As regards the three returnees he had referred to in his DFFM interview he said he knew one personally who had been in national service for more than five years and was a very active supporter of the government. He had met him through his cousin in 2013.  He went back in 2013. He had good connections with the government and was an active participant in the ruling party. He understood he had got clearance from the Eritrean embassy. He did not discuss with him whether he paid the diaspora tax. The second person he had found out about through a friend and he too was very active in the ruling party. He did not know him personally. He had no discussions about the diaspora tax. The third person was related to a friend of his and he had been granted asylum in the UK He was actively involved with the Eritrean embassy. His uncle was a prominent freedom fighter.

34.        Mr Rawat asked was it unusual to have conversations with Eritrean people about the topic of Eritreans going back to Eritrea. PK said it was one of the most contested issues people talked about. Most objected that it undermined the opposition parties, as it would provoke the reaction, “If they are safe there, what are they doing here?” It was seen as undermining the opportunity of others to be granted status.

35.        PK said he had read the new UNCOI Report and had noted its reliance on fresh evidence.

36.        Mr Rawat turned to the subject of the DFFM Report: PK said he was interviewed by the DIS researchers in September 2014 – Mr Olsen and Olesen came to see him twice.  They sent him their draft transcript and he approved amendments on 14 November 2014. When he was approached by Olsen and Olesen he was happy to cooperate as he considered that their concern was to investigate the human rights situation in Eritrea and they were very honourable.  Mr Rawat asked him why he had written that he had felt “used and betrayed” when he himself had approved the note of his interview.

37.        He said that his statement about a relaxation in the policy of the Eritrean government towards returns had been taken out of context and cited three times in the 20 page main body of the report (see para [175] above). He had not had time to check through any of the report because he had heavy academic commitments at the time. He had told the head of the mission that he could not comment quickly yet they had gone ahead. At that time he did not know that Olesen had resigned and so was unaware he would not be given more time. He had made a mistake.  When he had emailed the head of mission on 25 November 2014 that the report was “well-written and informed” he had not read it.  He conceded he should not have done that. The DIS head of the mission had taken advantage of him. But he had a clear conscience and all COI professionals had supported him.  Mr Rawat asked whether he believed he could give independent evidence when he was so intimately connected to the event surrounding the DFFM and when he described himself as a victim of unethical conduct and someone who had been “betrayed”.  PK said his ethical standards had been untarnished throughout. He believed he had been objective. He had never been emotionally involved. The report ended up being discredited and that was nothing to do with his intervention.

38.        PK said that he accepted that fact-finding missions were in themselves a valid type of exercise in the context of Eritrea so long as they did not seek to synthesise and analyse the date. He applauded them (the FFMs) for trying different sources.

39.        When asked whether he thought that the DFFM was completely flawed or whether it was possible to differentiate between the first 20 odd pages and the sections which simply gave the texts of the interview transcripts, PK said that from the statements of Olsen and Olesen the contents of some of these transcripts  may have been affected by the methods used by their boss. The section of the report which describes the sources and what they said is contaminated and the quality of the data effected.  There is generally no harm in FFMs. They are not a complete waste of time, but there are caveats about anonymity and sources.  The Danish FFM is exceptional and he would not put the UKFFM in the same category. 

40.        He agreed that the Martin Plaut article was not an independent “analysis” (as he PK had described it in his report) since it was cut and pasted from the HRW press release.  He had used other sources and had not relied just on this source.

41.        Mr Rawat questioned why PK had not mentioned in his ’Reflections’ document the Home Office response to the IAGCI Report criticising the March and September CIGs.  PK said he knew of its existence but saw no reason to cite it. Mr Rawat asked PK if he did not consider that his duty as an expert was to mention both sides to any issue.  He said he agreed with Professor Campbell. He read a lot when he wrote a report and only referred to other reports when he considered it relevant. He did not change his mind after he read the Home Office response.  He did not consider it necessary to reflect on the Home Office view regarding use of anonymous sources.

42.        Asked about the methodology used by the UNCOI in its first Report of 2015, PK said he did not think the degree of anonymity was excessive, but agreed that as a result very little was known about them.  For Eritreans there was always anxiety that the government surveillance would make them identifiable and their families could face repercussions.  He did not know how the informants were selected.

43.        PK was asked a number of questions about the methodology of the AI ‘Just Deserters Report’.  He could not say if the “range of sources” this report drew on were obtained through use of the snowballing technique.  He accepted that it appeared that the ‘Just Deserters Report’ had two persons (Filmon and Yonas) saying identical things, but it was possible it was two persons who fled together or had identical experiences or who had chosen to say something jointly or who had rehearsed the same story.  If it had been anyone else than AI he would have been concerned there had been error.  It was incompatible with his knowledge of AI that they would make such an error.  He accepted there were two other passages, virtually the same from two persons Elan and Danait. He accepted that if AI had annexed transcripts of these interviews it would have been possible to check.  He did not think this cast doubts on other parts of the ‘Just Deserters Report’.  He would give the benefit of the doubt.  He knew Eritrea and what was described here matched his knowledge of the country. Generally the report was accurate about the country. He did not need to rely for his own assessment on the ‘Just Deserters Report’ in any event.  He counter-checked with other sources.

44.        PK said he accepted that AI’s decision to rely on the evidence from asylum seekers meant that questions had to be asked about any possible incentive to exaggerate, but that did not mean that their evidence could not be relied on.  He preferred to use people with status.  AI do not have to apply a scientific method at all times.  If Mr Rawat wished to challenge the AI evidence he should ask them questions. 

45.        Asked why he had not mentioned the changes in age for lawful exit in his February Report (these were added in the April revision), PK said he probably made the changes as a result of the research he did.  Asked why the only source he cited for this change was a book published in 2013 (The African Garrison State) which was not in any event sourced, PK then said that it was not the only source but there were internet sources and that he had relatives in Eritrea who were over 70 carrying guns.  He referred to oral communications and common knowledge which he accepted that he had taken for granted and accepted that this was not “right.” It was put to PK that not only was the source he used inadequate, but he had had failed to mention the source in his February 2016 Report and he was unable to give an explanation about this.

46.        PK said he had other sources, e.g. the BBC.  He agreed he should have given a more recent source.  He had had oral communications with several persons in Eritrea that the age limit for women was now 60 years because of the people’s militia.  He had friends and relatives affected by this.  It was common knowledge.  The fact that a person was not actually engaged in the people’s militia did not exempt people. It would only be a matter of time before they would be asked to carry a gun.   He had heard Eritreans talking about the possibility of women under 60 being granted an exit visa, but he was not aware of anyone himself.  He was not aware that Landinfo had said that one factor affecting whether men and women aged under 70 and 60 respectively could get an exit visa was whether they had done mandatory weapons training.  In any event, being able to apply and being able to get were two different things. He would not rule out someone being able to obtain a visa because there is a lot of corruption and it is arbitrary.

47.        Asked why if he considered the USSD Report should be seen as relevant in relation to the age limit for children (five) he did not agree with its April 2016 assessment that women over 30 could get exit visas, PK said that was not his information.  He had recently had to help a female relative in Eritrea over 40 years old and she had been told she was not eligible because she was potentially liable for the people’s militia. He accepted that this amounted to evidence of one person and that he was generalising. He did not mention this communication in his report. Although the people’s militia was part-time you had to be available.  His aunt is in the people’s militia and is not engaged on a full-time basis but has to be available whenever there is a specific task and can be called up at any time.  He said he had never found it necessary to investigate the matter.  To say the age limit for women was now 60 was not a “guestimate”.  He did not agree with Mr Bozzini’s 2012 analysis that women when they reach 27 can regularise and demobilise.  People with connections might be able to achieve this, but it was not policy. He did not agree with the respondent’s case that the upper age for women doing compulsory national service had in fact decreased to age 30.

48.        Asked further about his treatment of the lower age limit for children, PK accepted he had said eight years in one place, between five and seven in another and was now saying five years.  “We are not dealing with exact figures in Eritrea”.  The USSD Report used the term “generally”.  He considered it was appropriate to say between five to eight or eight.  Leaving aside the USSD Report which did not cite a source or sources, PK agreed the only source for the figure of five was the immigration officials interviewed by the UKFFM in February 2016. 

49.        Mr Rawat asked PK what his sources were for saying in his April ‘Conclusions’ section that the Eritrean government had adopted a stricter approach to exit visas.  PK said this is what he had heard from friends and relatives.  His information was just anecdotal.  He did not accept that this position was inconsistent with his evidence about Eritreans travelling to Sudan for medical treatment. An exit visa is not needed to travel to Sudan for those ineligible for national service or the people’s militia. He did not agree with the evidence of the immigration officer interviewed by the UK FFM about this.  People needing medical treatment can travel to Sudan there being many buses making the journey.  “Were the people on these buses confined to those over 70 or under [five]?” asked Mr Rawat; PK said the visa regime was stricter for those affected by national service or people’s militia. He expanded on this when questioned by Ms Dubinsky.  He said that to go to Uganda or Kenya a person needed an exit visa, but for Sudan a travel permit would suffice. The criteria were the same for those within the national service age ranges, but outside of these, e.g. for elderly people it was much easier. A person who goes to Sudan without a travel permit would be regarded as having left illegally. He thought a significant part of the movement between Eritrea and Sudan comprised older people including former professionals who had established their own businesses and had left for South Sudan but still had family ties back in Eritrea, they could get documents.

50.        The bench asked PK to expand on his evidence about travel to and from Sudan in light of his earlier evidence that there was presently a lot of traffic between the two countries. Were those on the buses just people under five and over 70, he was asked. He said that usually the people would be older, they would be holding certificates from the war of independence and notes from a doctor; but all people would need travel permits. The border is very porous and people can easily cross and that is why so many people leave illegally. Asked if there would be a lot of checking at the border exit points to ensure those going to Sudan were not evading or deserting national service, he said that legal exits could only take place in particular places. Check points on the border are very limited.

51.        Asked whether he had any view of the accuracy of the Eritrean government estimate that between 60,000 and 80,000 exit visas were issued per year, he said the range given did not suggest these figures were based on fact but it was not within his knowledge.

52.        PK said the suggestion in some diplomatic sources that returning Eritreans used Eritrean passports was misplaced.

53.        Asked about his citation that fewer students could now get exit visas, PK said this was his observation on the consequences of more Eritreans leaving the country and the introduction of people’s militia service.  In 2014 the government had realised the scale of the numbers leaving was untenable. One of his sources was awate.com, which is run by an opposition group and he considered credible; but there were many other sources, although none of them specify anything about students.  He agreed that what was reported in awate.com was that there had been a reduction in the size of the militia and the army and that there was in fact no reference to students or scholarships, but that he had deduced from this that awards of scholarships had significantly diminished because Eritrea relied on conscripts.  There was evidence of Eritrean students studying in the Gulf states, China, the Far East and other African states, but very few students return, so those granted were really only supporters of the government and its party. But as regards applicants applying to study in Europe between 2011-2015, he had no source of evidence as to whether numbers were going up or down; he just relied on common knowledge.

54.        As regards his claim that the number of authority figures able to get exit visas had shrunk, he said he based this on phone calls he had had with such people, but he could not quantify. 

55.        In reply to questions about demobilisation PK said he used this term to denote complete demobilisation.  Relocation to national civilian service was not demobilisation.  The only basis for demobilisation was ill-health – unless you factor in payment of bribes.  He did not accept there was a process for requesting demobilisation.  If there was such a process (as suggested by the UK Ambassador) it was a corrupted process.  He would know from his sources if there was such a process.  There are no rules that regulate the process.  He did not accept that there was de facto demobilisation for married or pregnant women.  They were not called up to active military service, but they would be called into civilian national service, including women over 50. However some women, particularly those who are educated, are still called up to work in offices. Women were not formally demobilised but may not have an assignment; the issue only became relevant if she wanted to travel. You may see women prohibited; there was a lot of arbitrariness. In the majority of cases women could not get a discharge certificate but a minority may get travel permits and these were not generic documents but were specific to the time they were applied for.

56.        PK said he considered that the 2015 UNCOI evidence about ad hoc exemption and the existence of a “certificate of completion of [national service]” was consistent with his own analysis. Some may be able to get these documents. Exemption certificates would not mean persons got permission to exit, different rules applied. He did not think that centralised records existed of those de facto allowed to leave national service.  That was why there were round-ups.  Relatives of even pregnant women had to go to commanders to get permission.  If a woman below 47 were returned forcibly she was most likely to be treated as a deserter and would not be able to prove exemption on the basis of de facto demobilisation. The punishment could not be predicted. There was no regularity

57.        In cross examination Mr Rawat asked PK about the medical illness exemption from de facto demobilisation. It was easier, he said, for people with visible detectable illnesses. One of the real problems was that the processing of people to establish whether they were unfit took time and ill-treatment could happen meanwhile.  His research in Eritrea in September 2002 had included conversations with a nurse. Since that research his knowledge of how the Eritrean authorities dealt with mental illness came from his own life experiences.  (PK said later on that he had not retained notes from his interview in 2002, he relied on memory and had sought to paraphrase. He did not always cross-check). He did not accept the Minister of Health account to the UKFFM that there was a qualified psychiatrist in St Mary’s hospital; he was probably a G.P.

58.        Mr Rawat asked about Eritreans working in the embassies in Asmara.  He agreed that the position was that these embassies could not employ those who had not completed their national service/being demobilised, but based on his intimate knowledge the government liked to insert their supporters in the embassies, so the embassies would not know “the state wants the President everywhere”. Getting documents in Eritrea saying one was demobilised was easy enough, but it did not mean one was actually demobilised.  He could not defend this claim in a court of law, but it was his understanding from discussions with fellow scholars and friends. Perhaps in regards to international organisations the Eritrean government would not be so concerned to have supporters inserted.  He did not think any credence could be attached to the UKFFM respondent he spoke to about being seconded to Nevsun.  He accepted that at the Bisha Mines employees had been demobilised, but this was not true of the work done by subcontractors, over whom Bisha Mines have no control certainly outside the main sites, who were often companies run by leading members of the ruling party.  This is common knowledge. Segan is a sub-contractor and belongs to the ruling party and given how secretive this company is he did not accept the claim they did not use conscripts.  He did not accept the findings of a Human Resources audit that in his view had been commissioned by Nevsun (Human Rights Impact Assessment of the Bisha Mine in Eritrea (2015 Audit) - Nevsun Resources Ltd, 5 August 2015) and he had not read it.  

59.        PK said he did not accept UKFFM materials that suggested it was possible for families with only one breadwinner to be demobilised.  He had family members who were sole breadwinners, one of whom had been in national service for 20 years, another for 16-17 years.  If there were a sole breadwinner rule, most Eritreans would be demobilised. 

60.        As regards the extent of the private sector in Eritrea, PK said it was banned in 2006, and is now confined to local level small family businesses, but ability to work in such businesses depended on the whim of the local commander, it was not common.  PK said he accepted that it was possible for foreigners like the British Ambassador to walk around Asmara and even to travel outside with permission and to observe events and to speak with people involved in business.  But the British Ambassador did not have a comparable ‘dense network’ of sources. He initially asserted that the likelihood of Eritreans divulging information to foreigners was zero, but he accepted in oral evidence that this was an overstatement and that he should have been more careful. 

61.        PK confirmed his position which was that the regime does not punish people who leave illegally, but those punished are deserters or evaders.  Illegal exiters are not at risk unless perceived to be in this group.

62.        PK was taken to his “Reflections” document where he had criticised for having a “cavalier attitude” those who said that the “shoot to kill” policy was no longer in existence or was applied less than previously.  The sources cited in support were not reliable.  He believed reports about its continued existence were the tip of the iceberg.  He did not blame those who asserted this using normal standards of evidence assessment, but Eritrea is different.  The UK Ambassador may honestly say this, but it was not a reality.  Asked if he understood that he was alleging in effect that the UK Ambassador was ignoring evidence, he agreed he could not disprove what had been said, by “cavalier” he meant about general violations of human rights.  He could have put it in better language.  To say “single, isolated incident” with reference to an incident resulting in the death of ten people (the shooting of conscripts in Asmara on 3 April 2016), was appalling.  It was not isolated; it was a pattern.  At least the Ambassador was only entitled to say there was a decline in reported incidents. Very few people know what is going on.  He accepted he himself was not in a position to verify the 2014 incidents.

63.        When questioned by the bench he said that perhaps “he had taken it too far” in suggesting western representatives could not be objective, but he stated that it is common knowledge that there are no political and civil rights in Eritrea and that this did not mean that people have no right to claim asylum. He was asked whether it is possible for western diplomats to be objective and he commented on the rise in asylum seekers from Eritrea and that this has become a major topic of concern, but that he would not dare to homogenise the diplomatic community. There may be others that think they cannot afford to accommodate all these people, but he conceded that he was speculating, using (he said) common sense and intuition.  His evidence is not that those compiling the CIGs are incapable of being objective and having given talks to them in various different location he is familiar with the preoccupation of these people. He was asked whether the main interest of these people he describes is of stemming the flow of immigration and he stated that what he said was an observation.

64.        He stated that there may be those that think that the West cannot afford to accommodate Eritreans, but he conceded that he was “speculating and using common sense”.

65.        He was not suggesting that those who compile CIGs are incapable of being objective, but when he looked at the Home Office CIGs he considered the only explanation for the dramatic change was a concern about using numbers of Eritrean asylum seekers coming to Europe.  Governments in the West are determined to stem the flow of migrants and turn a blind eye to what is really going on in Eritrea.

66.        Asked why he had relied on the Edmund Blair article of 25 February 2016 to justify his view that recruitment to national service had become stricter, PK said even though Blair had not referred to this, it was obvious from the article in which it is asserted that the Eritrean government will not stop recruiting young people into national service for lengthy periods. The Eritrean government continues to have the rationale for being tough on national service, namely the threat from bigger neighbours. PK confirmed when cross examined by Ms Dubinsky that Eritrea still considered itself to be in a state of emergency. PK said it was the first time since 1998 that an Eritrean minister had said recently that there was no threat, but the ‘no war, no peace’ policy was still in place.

67.         PK was asked questions about his treatment of reports about the 3 April 2016.  He had phoned a contact in Eritrea who had confirmed the incident.  PK had described the victims as draft dodgers, but he accepted that none of the reports referred to “draft dodgers” and he apologised for doing so.  It was suggested to him by Mr Rawat that there had been an element of planning by the conscripts because friends had blocked the convoy, but PK did not comment on this. 

68.        Mr Rawat asked PK about his evidence that families of those who left illegally were no longer being asked to pay fines, or less so.  It was less widespread.  The government is unpredictable.  However he gave examples of family members of others who have been arrested and detained.  

69.        PK gave extensive evidence in cross examination and following questions by the bench about the paragraph in the DFFM.  We have referred to this when assessing the DFFM evidence (see [175] above) but it is necessary to repeat the text here;

 “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 embassy and sign a repentance letter in which they accept any penalty for the offence committed. In addition they must pay the two per cent diaspora tax. Finally, they are obliged to participate in festivals. 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 naturalized in their countries of asylum.”

70.        PK was questioned extensively about this paragraph. He stated that the diaspora comprised two groups; one that came to the UK during the war of independence (they did not leave illegally and are not perceived as evaders/deserters) which he described as the large majority and this is the only group who can safely return (he later said that this large majority did not include evaders and deserters who had fled Eritrea illegally having initially said it did).  He confirmed that they did not have to pay the tax or sign the letter. They have been naturalised by another state. The second group; the minority are the others who cannot safely return, having fled illegally. He said that he did not rule out those having fled illegally and having been naturalised returning (he knew of three people in this category), but they would have to have links to the government and anyone in this second group who was not well connected and who did not support the regime would not return as they would not be safe. It was this group that had to sign the letter and pay the two per cent tax.

71.        He was not referring to the large majority in that paragraph.

72.        Those who are able to return safely are those who have been naturalised, but those who illegally left Eritrea would be reluctant to return and would not in any event approach an embassy. He did not accept the evidence of the UKFFM that deserter evaders can safely return.  He reiterated that he had never heard of anyone returning for a holiday without having a foreign passport.  He based that on his own research.

73.        In respect of “some people” he referred to in the paragraph who had visited Eritrea and left safely, he knew of only three people in this group. 

74.        PK stated that the diaspora two per cent tax could be paid by those who left Eritrea illegally, but the reality is only those who had regularised their position would pay it. The payment of the tax and signing of the letter did not mean persons would be able to return. It does not provide any immunity from ill-treatment. The Eritrean government would look at a person’s activities and whether they were connected with opposition groups and the like.  PK re-emphasised that the repentance letter required persons to admit to a crime, which reflected the vindictive and arbitrary nature of the Eritrean state.

75.        PK was asked if the signing of the regret letter and payment of the tax was independent of gaining entry to Eritrea. He said it was; these acts were not a requirement for returning Eritreans to re-enter. He did not think that the great majority of those returning for holidays were required to pay anything and the same would be true of their children. However, Mr Knafler asked whether Eritreans who left Eritrea before independence have to pay the diaspora tax he said yes and that he had a friend who needed an ID card and she was forced to pay the tax.

76.        He was asked by the bench about any risk that members of the diaspora would have to confront and he said that if they stay longer than a year they would be required to do national service. He was asked whether people who left before the war of independence would have to pay the two per cent tax and he stated that they are forced to when getting an ID card.

77.        Dr Bozzini was wrong in February 2012 to say many pay the tax; it is a small fraction.  Dr Bozzini was right, however, that this tax bought you access to consular services, such as being able to buy land. Payment of the tax is not a prerequisite to being allowed to enter. The diaspora tax gives you access to services inside Eritrea but you do not need to pay it in order to send remittances, although the Eritrean government has tried unsuccessfully to block informal channels of payment. The ICG report was wrong about this. He knew this through his own family members and their experiences. In re-examination PK said he had seen the UNCOI Annex VII letter of apology (regret) document before. He did not know its source but he had seen it a long time ago. (Source: the 2015 UNCOI Report (Advance version of the Report of the detailed findings of the Commission of Inquiry on Human Rights in Eritrea, A/HRC/29/CRP.1, United Nations General Assembly Human Rights Council), 5 June 2015).

78.        PK was asked about the incident cited at [436] of the 2016 UNCOI Report which suggested that payment of the tax prevented ill-treatment. He considered this reference inconclusive. PK said that because such a person does not face adverse treatment may not be because he has paid the tax therefore implying that there may be other reasons.  He implied that there was insufficient detail about the circumstances.

79.        He confirmed his position in his DFFM interview that those who left illegally could obtain a passport with reference to a facility introduced by the Eritrean government in 2001-2002 as an exercise in reducing the appeal to such persons of Ethiopian citizenship.  However, it was not his evidence that those who left Eritrea unlawfully could, in 2014, approach an embassy and get a passport by signing a repentance letter and paying the tax and that this would ensure safe return. Unless confident that the government would protect you would not go down this route.  

80.        An Eritrean ID card doubles as a visa.  As regards Eritreans obtaining Eritrean passports, this could be done abroad by those who needed them for onward travel but the Eritrea government could refuse applications. Legally speaking a person returning to Eritrea on holiday in possession of a foreign passport could be required to do national service in the same way as the resident population but in practice the Eritrean government treated dual nationals differently.

81.        With specific reference to the paragraph (quoted in full at [69] of this Appendix) and the government attitude having relaxed, he confirmed that this applied to the government’s attitude to supporters and members of the party, people with connections in the context of those who had left illegally. As an example he cited the three deserters (see above). However, he referred to the paragraph and was emphatic that this applied “invariably to people who have been naturalised in their countries of origin”. The caveat at the end of this passage was important; those in this category were invariably those who had naturalised.  Despite what he said at 6.1 of his Report of 23 September 2015, about there being “no evidence whatsoever” that the Eritrean government has now a relaxed attitude towards those returning to Eritrea who left illegally,  there was some evidence, but only for those who were well-connected.

82.        He also further clarified that he had meant that only those who were members, supporters of the government or connected with the party could sign the letter and pay the tax.  The great majority category that he had made reference to earlier are not required to sign anything

83.         PK was asked by the bench to give more detail regarding the three persons who he knew had returned to Eritrea and whom he had in mind in his interview for the DFFM Report. The men had been naturalised as British citizens having been granted asylum. He said that he was one hundred per cent sure that the first man was naturalised. The second man, according to the information that he had, was naturalised. The third man, according to the indirect information he had, was naturalised and he further stated that he would not dare to have returned without a British passport. He did not speak with the second or the third man because he did not know them personally. They had all safely returned to Eritrea for visits and had been able return to the UK. They are all very active members of the government of Eritrea. He is not aware whether they had the permission of the government to travel here, but the government sends people here amongst the diaspora. The government plants supporters everywhere.  He had met one through a cousin, the other two he had not met directly. All three went just for visits. He had never heard of Eritreans going back for good.

84.        People could be granted refugee status without ever having a dispute with the government and indeed could be pro-government. He said that the Tribunal in MA noted evidence that the Eritrean state had an incentive to send supporters to the diaspora; the government has an incentive to plant its supporters everywhere. But he had many friends who fled national service in Eritrea and applied for asylum.

85.        PK was asked by the bench what percentage of the diaspora in the UK was pro and what percentage was anti the government. He said that this was mysterious and he could not give an answer.  When those who oppose the government have parties the attendance is small but there is greater attendance at pro government parties. However, from this one cannot conclude that they are all supporters of the government.  Even though you could not always tell by who attended different events, only a few supported the government. PK was asked by the bench whether those going back would necessarily be naturalised; could they return if for example they had residence in the UK short of naturalisation.  He said he had no evidence about this although he had heard of one man related to a nephew of his who had died in the UK and his wife wanted to go to Eritrea where there was to be his funeral, but she was advised not to go. People would need a secure status in the country where they live before considering return.

86.        PK said he did not know what attitude the Eritrean authorities took to those who returned on a foreign passport; the Eritrean authorities considered them as Eritrean regardless.  Asked if such people were not taking a chance returning, he said the overwhelming majority would not take such a risk.

87.        PK was asked by the bench why people  returning to Eritrea for holidays, even if they travelled on foreign passports following naturalisation, would  risk going back to a country which he, PK, had described as arbitrary and vindictive. He said that opinions are personal. Eritrean society is not homogenous and that there are different political, ethnic and religious groups. Some people may say his views are unreasonable and others may say the human rights record is appalling. They think that everything that is going on there is bad, but they want to take their children back. They are not politically active. As long as they are not politically active he did not think that the government would go out of its way because it targets people who undermine them, some would be pro-government; there may be others who think that as long as they are not politically active the government would not target them.  Mr Knafler asked PK if he stood by his statement that returning members of the diaspora were only at risk of being required to do national service if they stayed for a year or more. He said he did. He knew people who had travelled out from Eritrea to Kenya or Sudan to make sure they had not stayed beyond a year.

88.        PK was asked if the children of those who had fled Eritrea during the war of independence would not be considered eligible for national service (on the basis that they would not be exempt) and his evidence was that the government targets evaders. He said he did not think the government would target people in this category.  He said that to be fair to the government if you grew up here and have a passport, in practice national service does not apply to you. He said that they would be one hundred per cent safe. The government would not be arbitrary in relation to them. 

89.        It was suggested that in his evidence not many successful asylum seekers would be returning because they would be deserters/evaders and illegal exiters. His evidence was that they would be taking a very high risk if they returned. Successful asylum seekers are not likely to want to approach the Eritrean embassy, but PK stated that “we can’t talk in absolute terms” there are those who claimed asylum but have lost parents and now the question of inheritance arises and they would need to produce documents. It was put to him that successful asylum seekers would be considered anti–regime, but he said that he would not go that far and on the contrary and having fled Eritrea may not be a political.

90.        He was asked whether in his view was it not the case that the most typical claim was based on rejection of the regime. He said that once a person gets status here he becomes preoccupied with working and keeping his family. Very few engage in politics. He was asked why, if he accepts that a typical asylum claimant is someone who rejects the regime, why they would not be in the large majority of Eritreans in the UK. PK stated that whether they act to bring about political change is another thing.

91.        He did not accept what was said by the Minister of Foreign Affairs who was interviewed in the DFFM who had not indicated that naturalisation is a prerequisite for safe return and who asserted that those who illegally exited were not punished. In respect of evaders/deserters PK found it difficult to accept what was said by the Minister of Foreign Affairs. He stated that this Ministry is not responsible for policy relating to national service in any event. He stated that there may be a “policy” but he had never seen it. PK referred to the immigration officials having said that leaving the country (whilst subject to national service) is illegal. It follows that illegal exit would be subject to punishment which contradicts what was said by the Minister.

92.        PK said that he strongly disputed the evidence given by diplomatic representatives, (meeting with diplomatic sources B, C and D) who stated that anecdotal evidence from the US Embassy is that 85 per cent of Americans of Eritrean descent travel on an Eritrean passport. Returnees have to show an Eritrean ID card and in practice returnees show both passports, their Eritrean one and the one they have obtained through naturalisation.  The effect of a person using a non-Eritrean passport was that the authorities do not check whether they left illegally.

93.        PK was asked if he agreed the distinction the respondent seeks to draw between Eritreans returning having been outside Eritrea for more or less than three years.  PK said he was aware that persons who go back to Eritrea who stayed more than one year were required to do national service, but he knew of no three year rule of the kind referred to in the UKFFM.  Most members of the diaspora going back for holidays were going for vacations of two-three up to a maximum of five weeks during the summer.  There was another group of retired people who tend to go back for longer periods; his own brother went back for two months. He thought a large number of holidaymakers were those who had left Eritrea during the war and their children. PK was asked about a paper he had given to EASO in 2014 where he estimated the proportion of the population who had gone into national service over a period of 20 years as 9.2 per cent of the population. He was not the only one who gave high figures, for example a German source had estimated 600,000 people.

94.        PK was asked to what extent his “dense network” of contacts inside Eritrea comprised family and friends.  He indicated that friends and family comprised a “small part” and the network spreads across diverse groups. He replied that he had sources outside the family and inside his family some were pro-government. 

95.        PK was asked questions by Ms Dubinsky relating to his understanding of the present legal provisions in force in Eritrea regarding punishments of desertion and draft evasion with reference to the penal code of the state of Eritrea 2015 Articles 118 and 119 (inciting to mutiny which carries a sentence of not less than 13 years and not more than 16 and interference with military service which carries a sentence of not less than one year and not more than three). PK confirmed that it was not implemented, but said, it did not matter which provision of national law they applied because victims would never be produced before a court; they were just put in detention with no recourse. The laws were not implemented at all. Arbitrariness prevailed and it was impossible to predict what the State would do, except that punishment would be ”rigorous” and that could mean detention in containers, in high temperatures or underground cells and could mean death, torture, indefinite incarceration.

96.        PK was asked about forcible returns and said that despite inquires he had made, he only knew of only one forced return to Eritrea since 2011 and referred to the case of (Berhane Embaye cited in his Report of 4 April 2016). He was asked why it was he had little information about forced returns generally and he suggested two reasons; first that the government is secretive and secondly because of Eritrea’s poor human rights record and people were likely to be detained if they returned and so most governments were reluctant to deport Eritreans back to Eritrea. It was almost the norm not to. In the last decade it has generally been accepted that returns would result in ill-treatment. He was of the view that the second reason was more likely to reflect the position. He had tried to find out about other deportations but had been successful. He stated that there had been to deportations from Sudan

97.        PK said that should a person be forcibly returned whether they do military or civilian service depended on their skills and what suited the government. In reality even the person sent to civilian national service belonged to a platoon or battalion unit. He could only guess what assignments might be made. 

98.        He had said the September CIG was not substantially different from the March CIG.

99.        Asked about the level of surveillance in Eritrea, PK said it was heavy. Asked if he thought his relatives there might be kept under surveillance or treated differently by the regime because of him, he said he did not think the regime saw him as important enough; they ignored his books. It was suggested that by any account he must be embarrassing to the regime. He said that the government ignored these things and that one of his books was in their library. In any event they did not detain family members except in exceptional cases.  His relatives were safe. He was not politically active. He was not concerned that their welfare was affected by their relationship with him. Eritrean families are often divided in their opinion, and you can find within the one family some pro-government, some anti, some apolitical. He had many friends who were members of the government, but he did not talk with them about each other’s political views.  He had a brother who was pro-government but they were very close nonetheless.  PK said that he was not important or sufficiently high profile to be a threat to the government and to cause a problem for his family. 

100.    PK was asked whether he considered the system of national service in Eritrea amounted to forced labour. He said that when it was introduced national service was innovative and the national service system was at the heart of the ability of the independence movement to become a separate state.  It was a way of getting people from different ethnic groups and occupations to come together and put aside differences and had strong core values that were the building blocks for the new country. But it all went wrong and once the regime began extending the national service beyond 18 months problems developed and it became forced labour. National service for the first 18 months is very much supported by the populations, but beyond that it is seen as forcing people to do something against their will. It has degenerated and the fact that military commanders use national service labour to build their own homes and to recruit labour to their private projects, illustrates the abuse. Asked to what extent people who did national service did so voluntarily, PK said that he could not say. People were not against national service but they were against punishment and against the fact that it was open-ended. There was a lot of abuse. He accepted that there were examples of women choosing to stay in the people’s militia to ensure they had a wage, but that was not a general rule.

101.    PK was asked by Mr Knafler if he had any reservations about fact-finding missions in Eritrea. He had said yes there was a risk of round-tripping and because of the general lack of freedom of expression. But if such missions followed correct methodology their findings could have value although there were constraints.  In Eritrea there are so many concerns about getting reliable information, leaving aside diplomats because it is a closed society.

Schedule of Background Evidence

*Hyperlinks have been included where furnished by the parties