1. Introduction

The case of MO v Secretary of State for the Home Department ([2011] UKUT 00190 (IAC)) represents a significant judicial examination of the risks faced by Eritrean nationals upon return to their home country, particularly in the context of illegal exit and asylum claims. The appellant, MO, an Eritrean national born on 19 May 2008, sought asylum in the United Kingdom, alleging persecution based on his religious affiliation, alleged desertion from the army, and illegal departure from Eritrea. His initial claims were refused by the Secretary of State for the Home Department, and subsequent appeals were dismissed, leading to the Upper Tribunal's reconsideration and eventual overturning of the first-tier Tribunal's decision.

2. Summary of the Judgment

The Upper Tribunal affirmed and refined the existing legal framework concerning the assessment of risks on return for Eritrean asylum seekers. Central to the judgment was the recognition of a significant shift in Eritrea's exit visa policies post-August/September 2008, making lawful exit increasingly difficult. As a result, the Tribunal concluded that the majority of Eritrean nationals who have left the country since that period are likely to have done so illegally, thereby exposing them to serious risks of persecution or harm upon return. The judgment reaffirms the precedent set in MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059 and aligns with rulings such as GM (Eritrea) & Others v Secretary of State for the Home Department [2008] EWCA Civ 833 and MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49.

3. Analysis

3.1 Precedents Cited

The Tribunal extensively referenced previous cases to establish a coherent legal framework:

• MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059: Established initial country guidance regarding the risks faced by Eritrean nationals who left the country illegally.
• GM (Eritrea) & Others v Secretary of State for the Home Department [2008] EWCA Civ 833: Confirmed the validity of the approach in MA, emphasizing the need for credible evidence in asylum claims.
• MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49: Reinforced the correctness of the MA approach in evaluating risks on return.

These precedents underpin the Tribunal's reasoning, ensuring consistency and adherence to established legal principles.

3.2 Legal Reasoning

The Tribunal's legal reasoning hinged on a detailed analysis of the evolving political and social landscape in Eritrea, particularly concerning exit visa restrictions. Professor Kibreab's expertise played a pivotal role, providing insights into the narrow categories still eligible for lawful exit from Eritrea. The Tribunal acknowledged the increased difficulty in obtaining exit visas post-2008, effectively limiting lawful departure to specific, highly restrictive categories.

Additionally, the Tribunal considered the credibility of the appellant's claims, recognizing the significant shift in Eritrea's policies and the resultant impact on asylum seekers. The decision emphasized the importance of assessing both the method of departure and the likelihood of persecution upon return, thereby refining the framework for future cases.

3.3 Impact

This judgment has profound implications for future asylum cases involving Eritrean nationals. By acknowledging the tightened exit visa regime, the Tribunal effectively raises the presumption of illegal exit for Eritreans departing post-August/September 2008. Consequently, asylum seekers from Eritrea presenting non-credible accounts are more likely to be presumed as having left illegally, thereby increasing the burden of proof to establish the absence of risk upon return.

The case also underscores the necessity for nuanced evaluations of exit visa categories and the roles of experts in informing legal assessments, setting a high standard for evidence and analysis in asylum determinations.

4. Complex Concepts Simplified

4.1 Risk on Return

Risk on Return refers to the potential danger or persecution an individual may face if forcibly returned to their home country. In this context, it assesses whether returning Eritrean nationals would face serious harm due to policies or persecution in Eritrea.

4.2 Illegal Exit

Illegal Exit denotes leaving Eritrea without appropriate authorization, such as an exit visa. Given Eritrea's stringent exit visa regime, most departures without official permission are deemed illegal, carrying significant risks upon return.

4.3 Failed Asylum-Seekers

Failed Asylum-Seekers are individuals whose applications for asylum have been denied. In the Eritrean context, due to the nature of the exit process, failed asylum-seekers are often presumed to have left the country illegally, thereby exposing them to potential persecution.

4.4 Exit Visa Categories

The Eritrean government restricts lawful exit to specific categories, which, post-2008, include:

• Individuals over national service age or children aged 7 or younger.
• Persons declared unfit for military or national service on medical grounds.
• Highly trusted government officials and their families.
• Members of ministerial staff recommended to attend studies abroad.

5. Conclusion

The Upper Tribunal's judgment in MO v Secretary of State for the Home Department serves as a critical reaffirmation and refinement of the legal standards governing the assessment of Eritrean asylum seekers' risks upon return. By recognizing the significant tightening of Eritrea's exit visa policies post-2008, the Tribunal effectively shifts the burden of proof towards asylum seekers to demonstrate the absence of persecution upon return. This judgment not only aligns with established precedents but also enhances the precision of legal evaluations in asylum cases involving Eritrean nationals.

The decision emphasizes the importance of credible evidence and expert testimony in shaping asylum determinations, ensuring that the legal process remains robust and responsive to evolving geopolitical contexts. As such, it provides a comprehensive framework that will guide future judicial decisions, balancing the protection of vulnerable asylum seekers with the need for a consistent and evidence-based legal approach.