Judgment by Holman J regarding the proper approach to persons alleging they left Eritrea illegally to avoid draft evasion and therefore face a real risk of persecution and treatment contrary to Article 3 ECHR.
The claimant sought judicial review of the Secretary of State’s decision that his further representations, subsequent to a determination of an Adjudicator dismissing his appeal in April 2004, did not amount to a fresh claim because he would stand no prospect of success before a Tribunal notwithstanding the recent Country Guidance cases (post-dating the Adjudicator’s determination) in IN (Draft evaders – evidence of risk) Eritrea CG  UKIAT 00106, KA (Draft – related risk categories updated) Eritrea CG  UKAIT 00165 and MA (Draft Evaders – illegal departures – risk) Eritrea CG  UKAIT 00059.
Holman J accepted that these Country Guidance cases as well as the Court of Appeal’s decision in GM and others (Eritrea) v. SSHD  EWCA Civ 833 led to the following propositions:
1. Persons from Eritrea who would be perceived as draft evaders or deserters face a real risk of persecution as well as treatment contrary to Article 3 ECHR.
2. But returnees generally are not.
3. Persons from Eritrea of eligible draft age (i.e. 18-50 for men and 18-40 for women) would be perceived as draft evaders or deserters (and thus face a real risk) unless they fall into certain categories.
4. These categories include (but are not limited to):
(a) those who left Eritrea legally; and
(b) those who are not Eritrean nationals (who are not subject to the draft and are in any event able to leave Eritrea legally).
5. It is for the person claiming asylum to prove that the falls outside these categories and is therefore at a real risk.
6. In order to discharge this burden of proof, something more must be shown than the fact that the person concerned is of eligible draft age.
7. Persons who have been found by a judicial fact-finder not to be credible may be hard-pressed to discharge the burden of proof.
Applying these principles, Holman J held that it had been reasonable (in the Wednesbury sense) for the Secretary of State to conclude that, based on the representations the Claimant had put forward, there was no realistic prospect of Tribunal holding that the Claimant had discharged the burden of proving that he left Eritrea illegally, bearing in mind in particular that:
- his case before the Adjudicator had been that, although he had the right to reside in Eritrea, he was not an Eritrean citizen but a citizen of Somalia, and had therefore not left Eritrea illegally; and
- the Adjudicator had concluded that he was not a credible witness.
Against this background, Holman J considered that the Secretary of State was entitled to conclude that the Claimant’s U-turn in now asserting (without any supporting evidence) that he had been an Eritrean citizen and had indeed left the country illegally was unlikely to have a real prospect of succeeding before a Tribunal. Accordingly, the Claimant’s claim for judicial review was dismissed with costs.
Charles Banner appeared for the successful defendant, the Secretary of State for the Home Department, instructed by the Treasury Solicitor.