Case No: C5/2007/1599
Neutral Citation Number: [2008] EWCA Civ 809
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
AIT No: AA/02908/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 11th June 2008

Before:

LORD JUSTICE DYSON
and
LORD JUSTICE MAURICE KAY
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Between:

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

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Mr E Fripp (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 Maurice Kay:

1.	This is an application for permission to appeal.  Permission has been refused on the papers by Buxton LJ, and Mr Fripp renews the application orally before us today.  The case concerns a young man from Eritrea.  He is now, I think, 21 years of age.  He came to this country and claimed asylum.  That was refused by the Secretary of State.  He appealed on asylum and human rights grounds. The immigration judge rejected his asylum claim, not least because she comprehensively disbelieved his account of events surrounding his life in Eritrea.  However, she allowed his human rights appeal on the basis that he was of an age where he was liable to military service and, if returned as a failed asylum seeker, he would be mistreated because he would be seen as  draft evader.  

2.	The Secretary of State sought a reconsideration of that decision and the AIT ordered reconsideration, having identified an error of law.  That error of law was the failure on the part of the immigration judge to have regard to the question whether the applicant had originally left Eritrea legally or illegally.   The relevant authority at the time was that of KA (Draft‑Related Risk Categories Updated) Eritrea CG [2005] UKIAT 00165.  In other words, the AIT concluded, correctly, that the question of the consequences of return could only properly be considered when a finding had been made as to whether the original departure from Eritrea had been legal or illegal.  It would be in the case of illegal departure that mistreatment would be a reasonable likelihood.

3.	The AIT, in ordering reconsideration, found that the matter could not be dealt with on the basis of the information then before it because:

“…further oral evidence will be required to establish whether or not the Appellant left Eritrea legally.”

4.	The second stage reconsideration was, by arrangement, before the same immigration judge who had originally allowed the applicant’s appeal.  The matter came back before her on 23 April 2007.  On that occasion, as now, the applicant was represented by Mr Fripp.  Then, as now, he pointed to passages in the objective evidence that had been before the immigration judge.  This included a report from the United States State Department  in these words:

“Citizens of national service age (men 18 to 45, and women aged 18 to 27 years of age), Jehovah’s Witnesses … and others who were out of favour with or seen as critical of the Government were routinely denied exit visas.  Students who wished to study abroad often were unable to obtain exit visas.  In addition, the Government frequently refused to issue exit visas to adolescents and children as young as 5 years of age, either on the grounds that they were approaching the age of eligibility for national service or because their diasporal parents had not paid the 2 percent income tax required of all citizens residing abroad.  Some citizens were granted exit visas only after posting bonds of approximately $7,400...”

5.	In addition there was a report from Amnesty International which included this passage:

“Young persons are required to register at the age of 17 and are usually refused exit-permits when they approach conscription age.  Exit-permits are only issued on proof of completion of national service or payment of a bond as security for return to Eritrea to perform national service.”

6.	When the second stage reconsideration took place, a question arose as to whether the applicant was to give evidence.  As I have related, he had been comprehensively disbelieved about his activities in Eritrea on the previous occasion.  However, the matter had been ordered to second stage reconsideration so that he could have an opportunity to give evidence in order to establish illegal departure from Eritrea. 

7.	Before the immigration judge on the second stage reconsideration, Mr Fripp asked her if she required the applicant to give oral evidence, to which she appropriately replied that that was a matter for the applicant and for Mr Fripp.  Reading her decision, it seems that there was something of a square dance between Mr Fripp and the immigration judge, but she correctly left the matter to him and he ultimately resolved that the applicant would not give oral evidence and he would base his case simply on submissions, which were in turn based on the extracts from the objective evidence to which I have referred.  

8.	That left something of an evidential vacuum.  The immigration judge said in paragraph 15 of her determination:

“I do not know how, when or crucially in the present case, on what documents the Appellant entered the UK.”

9.	It is plain from paragraph 17 of the determination that there had been some dialogue between the immigration judge and Mr Fripp about the objective evidence and that she had expressed concern that there was a potential issue as to whether the applicant might have posted a bond of the kind referred to in both of the reports.  Mr Fripp submitted that it was obvious that the applicant could not afford such a bond because in Eritrea half the population lives on less than US $1 per day.  

10.	The immigration judge did not accept that it was obvious that the applicant could not afford a bond.  She said this:

“The entire argument depends on assuming the Appellant to be of average financial means in Eritrea.  However, by his own account, it is apparent that he had access to significant sums of money.  If the Appellant’s account is true, he spent significant sums on 2 agents, a flight from Sudan to the UK for himself and his agent and a false passport.  I cannot assume that in circumstances where his family was able to raise this sort of money to enable the Appellant to leave Eritrea that they could not raise the money for a bond, if necessary, to get him out of Eritrea.  If, however, as is likely, the Appellant’s account is not true, I am left with no credible evidence at all about how he left Eritrea.”

11.	The immigration judge then referred to the authority of KA as supporting the proposition that “a person who generally lacks credibility will not be assumed to have left Eritrea illegally”.  Mr Fripp accepts that that is a proposition correctly extracted from KA.  Indeed, as I understand that authority, it maintained that a person of the applicant’s age may not need to establish very much to attract a finding of illegal departure but he does have to establish something  in relation to his own circumstances and history rather than rely on an assumption.  

12.	The conclusion of the immigration judge was that in the absence of evidence establishing that something, the applicant had failed to discharge the burden of proof.  He had failed to establish that there was a reasonable likelihood that he had left illegally and would therefore be perceived to be a draft evader on return.  She said that that conclusion was unsurprising “in the absence of evidence”.

13.	In my judgment that reasoning is free from legal error and the contrary is not arguable.  There was in this case an evidential vacuum surrounding the circumstances of departure and the issue of legal or illegal departure.  The approach of the immigration judge seems to me to have been entirely correct and in accordance with what had been said in KA.  

14.	In these circumstances I do not consider that the applicant would have a real prospect of success upon any appeal, nor is there any other compelling reason for granting permission.  I would therefore refuse it.

Lord Justice Dyson:

15.	I agree

Order: Application refused