AH (Failed asylum seekers, involuntary returns) Eritrea CG

Factual and Procedural Background

This opinion concerns the reconsideration of an appeal against the Respondent's decision to remove the Appellant as an illegal entrant following the refusal of asylum. The appeal was initially dismissed by an Adjudicator on both asylum and human rights grounds. Permission to appeal to the Immigration Appeal Tribunal was granted, and under transitional provisions, the appeal proceeded by way of reconsideration.

The Appellant is a national of Eritrea who entered the United Kingdom using a passport provided by an agent without entitlement and claimed asylum shortly thereafter. His asylum claim was based on his Pentecostal Christian faith and the risk of being treated as a draft evader by Eritrean authorities. The Adjudicator found the Appellant not credible and rejected his claims, concluding he would not be at risk upon return.

The Tribunal found that the Adjudicator made a material error of law by failing to properly consider the risks to failed asylum seekers forcibly returned to Eritrea, distinguishing them from "mere returnees." The matter was adjourned for a continuation hearing to address these issues in detail and to consider whether country guidance should be reviewed.

During the reconsideration, extensive evidence was submitted, including expert reports on the situation in Eritrea, country guidance determinations, and statistics on returns. The Tribunal heard detailed evidence from experts regarding the risks faced by failed asylum seekers forcibly returned to Eritrea, including the likelihood of detention and ill-treatment.

Legal Issues Presented

1. Whether the Adjudicator made a material error of law by failing to properly consider the risks faced by failed asylum seekers forcibly returned to Eritrea.
2. Whether the existing country guidance on risks to returnees to Eritrea should be reviewed in light of new evidence and submissions.
3. Whether the Appellant, as a failed asylum seeker forcibly returned to Eritrea, would face a real risk of persecution or ill-treatment.

Arguments of the Parties

Appellant's Arguments

• The Adjudicator failed to address the detailed submissions regarding the risks to failed asylum seekers forcibly returned to Eritrea, particularly distinguishing them from voluntary returnees.
• The Adjudicator wrongly relied on country guidance cases (SE and GY) that did not adequately consider the risks to forcibly returned failed asylum seekers.
• The Appellant argued that forcibly returned failed asylum seekers are at real risk of detention and ill-treatment, supported by reports such as the Amnesty International Report and expert evidence.
• The distinction between "mere returnees" and failed asylum seekers forcibly returned was critical and had been overlooked by the Adjudicator.
• The Appellant submitted that the risk is political in nature, with failed asylum seekers being perceived as opponents of the Eritrean government and thus subject to persecution.

Respondent's Arguments

• The Adjudicator had considered the evidence and submissions sufficiently and was not required to address every argument in detail.
• The Adjudicator's conclusions were reasonable and supported by existing country guidance cases (SE, GY, and KA).
• The Appellant was found lacking in credibility, and no weight was given to claims of desertion or risk on return.
• The situation for returnees had not materially changed, and recent country guidance confirmed that returnees are generally not at risk.
• The evidence of the Appellant's experts did not materially add to the existing evidence and was premised on assumptions not supported by the Adjudicator's findings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal carefully examined the Adjudicator's determination and concluded that a material error of law had occurred due to the failure to adequately consider the specific risks faced by failed asylum seekers forcibly returned to Eritrea. The Adjudicator had relied on country guidance that did not sufficiently distinguish between "mere returnees" and forcibly returned failed asylum seekers, overlooking critical submissions and evidence presented by the Appellant.

The Tribunal reviewed extensive new evidence including expert reports and statistical data on returns. The experts described a regime where failed asylum seekers forcibly returned are likely to face detention, interrogation, and potential ill-treatment, particularly if they are perceived as draft evaders, deserters, or political/religious opponents.

However, the Tribunal also noted that the Adjudicator's factual findings, such as the Appellant not being a deserter or Pentecostal Christian, were not successfully challenged on legal grounds. The Tribunal distinguished the risk categories and emphasized that the Eritrean authorities target individuals based on perceived political or military status rather than the mere fact of failed asylum status.

The Tribunal further considered the limited number of forced returns and the absence of evidence indicating ill-treatment of returnees holding valid documentation. It acknowledged the significance of voluntary returns under UNHCR auspices as evidence that not all returnees are subject to persecution.

In balancing the evidence, the Tribunal confirmed the existing country guidance that returnees generally are not at risk unless they fall within specific categories of adverse interest. The Tribunal substituted the Adjudicator's decision with one dismissing the appeal, applying the updated legal framework and evidence.

Holding and Implications

The Tribunal held that the Adjudicator made a material error of law but, after reconsideration of the evidence and submissions, the appeal is dismissed on asylum, humanitarian protection, and human rights grounds.

The decision confirms that while failed asylum seekers forcibly returned to Eritrea may face risks if they fall within certain categories (such as deserters or political opponents), the mere status of being a failed asylum seeker does not, in itself, establish a real risk of persecution. The ruling upholds existing country guidance and clarifies the focus on individual circumstances and risk profiles rather than a blanket presumption of risk for all returnees.

No new precedent was established beyond confirming the applicability of existing country guidance and emphasizing the necessity of detailed factual and evidential analysis in individual cases.