Case No: C5/2007/2600
Neutral Citation Number: [2008] EWCA Civ 138
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT NUMBER AA/08938/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 6th February 2008

Before:

LORD JUSTICE CARNWARTH
and
 LORD JUSTICE RICHARDS

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Between:

	GM (ERITREA)
	Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Ms V Quinn (instructed by Messrs White Ryland) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment

Lord Justice Richards:

1.	The applicant is a 27 year-old citizen of Eritrea who claimed asylum after entering this country in 2006.  His claim was refused and an appeal on asylum and human rights grounds was dismissed.  A reconsideration was ordered and took the form of a full rehearing before Immigration Judge Levin.  In his decision, the judge again dismissed the appeal.  Miss Quinn now makes a renewed application for permission to appeal to this court against the judge’s decision.  Permission was refused by the tribunal and by Sir Henry Brooke on consideration of the papers.  

2.	The applicant’s account was that he was called up for military service in 1998 and became converted to the Pentecostal faith while serving as a prison guard.  He said that he was arrested while praying in the prison and was detained for four to five months.  During his detention he was ill‑treated and admitted to being a Pentecostal.  But in March 2006, while in detention, he managed to escape.  He made his way to the Sudanese border and crossed illegally to Sudan, then made the journey to the United Kingdom.  

3.	The judge rejected the applicant’s claim to be of the Pentecostal faith.  Indeed he found that the applicant had clearly fabricated that claim.  There is no challenge to that finding.

4.	As the judge held, it followed that he also rejected as incredible the applicant’s claim to have been arrested and detained for being a Pentecostal and his claim to have escaped from detention.  Thus, as he put it at paragraph 28:

“It follows therefore that I find the appellant’s claim not to be credible that he has escaped from military detention and consequently I am not satisfied even to the low standard of proof that he will be considered to be a military deserter upon his return to Eritrea.”

5.	The judge then turned to the question whether the applicant had left Eritrea illegally.  He referred to the country information, to the effect that all Eritrean citizens between the ages of 18 and 50 had the duty to fulfil active national service.  He referred to the finding in the country guidance case of MA (Draft evaders – illegal departures – risk) Eritrea [2007] UKAIT 00059, that a person who has left Eritrea illegally will in general be at real risk on return, in that such a person is likely to be regarded by the authorities as a deserter and subjected to persecutory punishment.  He said that since the applicant’s claim as to how he exited Eritrea was intrinsically linked to the credibility of his claim as to detention and escape from detention, the claim to have exited Eritrea immediately following escape was itself not credible.  He reminded himself that the burden of proof was on the applicant and that there was a clear obligation on those who sought international protection to tell the truth when presenting their claims.  He said in paragraph 33 that the applicant had failed entirely to honour that obligation by presenting a fabricated claim to asylum.  In paragraph 34 he said that in those circumstances it was not for him to speculate how and in what circumstances the applicant had left Eritrea.

6.	He went on to refer to what was said in MA to the effect that whilst it is unlikely that a male of military service age would be able to obtain an exit visa, nevertheless there were a number of categories where such a person would be able to obtain such a visa.  Having regard to that and taking account of his finding that the applicant had failed to discharge the burden of proof to show that he exited Eritrea illegally, and consistent with his finding that the applicant was totally lacking in credibility, he was not satisfied that the applicant had left Eritrea illegally.  He referred further to MA which he distinguished on the basis that the tribunal in that case had found significant parts of the relevant appellant’s claim to be credible, whereas in the present case the judge found the applicant’s claim to be totally lacking in credibility - hence his finding that the applicant failed to satisfy him that the claim to have exited Eritrea illegally was reasonably likely to be true.  That in essence was the basis on which the appeal was dismissed.

7.	The application for permission to appeal to this court is advanced on two linked grounds.  The first is that the judge erred in failing to make proper findings in respect of the national service aspect of the applicant’s claim.  It is submitted that the rejection of the claim of religious persecution did not necessarily mean that the applicant had not deserted from national service.  It is said that in MA the tribunal rejected on adverse credibility grounds the appellant’s claim to be at risk of persecution as a political activist, but nonetheless allowed his appeal on the ground that he was called up for military service, there was no demobilisation taking place and he must therefore have deserted when he left Eritrea.  It is submitted that in the present case the Secretary of State did not dispute that the applicant had been called up for military service in 1998 and, although the Secretary of State’s position was that the applicant had been demobilised before he left Eritrea, the objective evidence makes clear, as found in MA, that national service represents an indefinite obligation and there is no basis in the objective evidence for a finding of the applicant being demobilised.  It is submitted that the judge fell into error in failing to address sufficiently the relevant objective evidence and country guidance on demobilisation and desertion and that this vitiated his conclusion that the applicant was not a deserter.  Miss Quinn, in her submissions, drew a distinction between the case of somebody who has been called up for national service but has deserted and, on the other hand, the case of a draft evader.  

8.	The second ground is that the judge erred in his approach to illegal exit from Eritrea.  It is said that if the applicant had been called up and had not been demobilised, he was highly unlikely to have been able to secure an exit visa so as to leave the country legally.  Reference is made to paragraph 382 of MA which refers to objective evidence that among the categories of those routinely denied exit visas are men under the age of 50, regardless of whether they have completed national service.  It is submitted that the judge erred in distinguishing MA as he did.  It is said that the factual basis on which MA was determined is very similar to the present case.  

9.	In refusing permission to appeal on the papers, Sir Henry Brooke said this:

“The proposed appeal proceeds on the basis that in a case in which the appellant puts forward a version of events which the AIT reject as incredible, somehow or other the AIT is bound to make a ‘proper finding’, in the face of a lying witness, as to whether it is likely that he was still subject to formal duties by way of national service when he left Eritrea and (if he did not fall into the category of a deserter) whether or not he fell into those categories recognised in MA as likely to be granted legal exit visas.  The burden of proof, after all, rested on the appellant.  In my view, there is no real prospect of successfully contending that the AIT’s approach, in these unpropitious circumstances, in paragraphs 28 and 33-34 disclose a material error of law.  The last sentence of paragraph 33 is particularly important.”

10.	I am inclined to share the doubts expressed by Sir Henry Brooke in relation to this application.  It seems to me very doubtful whether the judge can be said to have erred in law in this case in reaching the conclusions that he did and in distinguishing MA as he did.  Nonetheless, the question whether the AIT, having wholly rejected the credibility of an applicant’s account as to illegal exit from Eritrea, is entitled then to conclude that he must have left lawfully, even if he is of military age and has been called up for national service and does not obviously fall into the very limited categories of those who are able to obtain an exit visa, is a question of some importance.  As we are told, there are a number of cases where permission to appeal has been granted either by the tribunal or by this court in which much that point is raised and where permission has been granted in part to enable this court to rule on a considered basis on the point.  For that reason and that reason alone, it seems to me that this is an appropriate case in which to grant permission with a view to it being added to those that are considered by the court when determining what is a relatively narrow but important issue.

11.	Lord Justice Carnworth:  I agree and I also share my Lord’s doubts as to whether this appeal will ultimately be successful.

Order: Application granted