GM (Eritrea) & Ors v Secretary of State for the Home Department

Factual and Procedural Background

These appeals concern individuals seeking protection under the Refugee Convention against deportation to Eritrea. They raise a common legal issue related to the risk of persecution upon return, particularly in the context of Eritrea's national service policies and the circumstances of illegal exit from the country. The factual background is extensively informed by the Asylum and Immigration Tribunal's (AIT) Country Guidance decision in MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059, which details Eritrea’s national service obligations, exit visa restrictions, and treatment of deserters and draft evaders.

The appellants (referred to as GM, YT, and MY) each presented individual claims for asylum based on alleged persecution related to national service obligations and illegal departure from Eritrea. Their credibility was heavily scrutinized, with Immigration Judges largely disbelieving their accounts. The appeals challenge the findings on credibility and the application of legal standards to the evidence, particularly regarding whether the appellants left Eritrea illegally and thus face a real risk of persecution.

Legal Issues Presented

1. Whether appellants who left Eritrea have established a reasonable degree of likelihood that their exit was illegal, thereby exposing them to persecution on return under the Refugee Convention.
2. The proper application of the burden and standard of proof in asylum claims where appellants rely on general country evidence rather than credible personal accounts.
3. Whether the Immigration Judges erred in their evaluation of the appellants’ credibility and the sufficiency of evidence to establish risk of persecution.
4. The extent to which general evidence about categories of persons permitted to leave Eritrea can substitute for individual evidence in assessing risk.

Arguments of the Parties

Appellants' Arguments

• GM and YT argued that their conscription into national service and presence in the UK meant they would be perceived as deserters, entitling them to protection without needing to prove illegal exit.
• All appellants contended that even without credible personal evidence of their exit, the general evidence about the high incidence of illegal exit and limited categories allowed to leave Eritrea established a reasonable likelihood that they left illegally.
• MY challenged the Immigration Judge’s findings as irrational and procedurally unfair, particularly regarding reliance on discrepancies in her accounts and failure to consider alternative unlawful exit routes.

Respondent's Arguments

• The Secretary of State maintained that the appellants had failed to discharge the burden of proof to show illegal exit or risk of persecution.
• It was argued that the appellants’ lack of credible personal evidence and failure to place themselves within categories likely to be denied exit visas undermined their claims.
• The respondent emphasized that general evidence cannot replace specific credible evidence about the individual circumstances of exit and risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by contextualizing the appeals within the detailed findings of the AIT’s MA decision concerning Eritrea’s national service and exit policies. It acknowledged the difficulty in assessing claims where appellants rely solely on general evidence of country conditions and illegal exit rates without credible personal accounts.

For appellants GM and YT, the court noted that although they had been conscripted, there was no accepted evidence they were still in active national service at the time of their departure. Their accounts of desertion and escape were disbelieved, leaving only their conscription status as proven fact. The court found that their failure to provide truthful evidence about their activities or exit meant it was impossible to exclude the possibility that they fell within categories permitted to leave Eritrea legally, such as students. Therefore, the court held there was no reasonable likelihood that they left illegally, nor that they would be perceived as deserters on return.

In MY’s case, the court recognized her young age (17 years and 4 months at departure) made it highly unlikely she belonged to any category permitted to leave Eritrea legally, including the limited student scholarship category. The Immigration Judge had rejected her account of leaving via the airport as incredible but treated that disbelief as conclusive that she did not leave illegally. The court found this approach erroneous, emphasizing that failure of personal evidence does not necessarily negate a claim if general evidence supports a reasonable likelihood of illegal exit. On reconsideration, the court concluded there was a reasonable likelihood MY left Eritrea illegally, warranting allowance of her appeal by one judge.

However, two other judges dissented on MY’s appeal, emphasizing that the absence of credible individual evidence and the speculative nature of her circumstances meant she failed to discharge the burden of proof. They highlighted the importance of individual facts in assessing risk and rejected the substitution of general probabilities for personal evidence. They also noted the categories of persons permitted to leave Eritrea were not closed, and the presence of visa applications to the UK Embassy suggested some departures could be legal even among young people.

The court underscored the principle that the burden lies on appellants to show a reasonable likelihood of persecution, which requires credible evidence about their personal circumstances. While general country evidence is relevant, it cannot alone establish entitlement to protection unless the particular facts of the case align with that evidence.

Holding and Implications

The court issued split decisions on the appeals:

• For appellants GM and YT, the appeals were DISMISSED, as the court found insufficient evidence to establish a reasonable likelihood of illegal exit or risk of persecution.
• For appellant MY, a majority of the court DISMISSED the appeal, concluding that the lack of credible personal evidence and the speculative nature of her circumstances failed to meet the burden of proof. One judge dissented, allowing her appeal on the basis that general evidence made illegal exit reasonably likely.

The direct effect is that GM and YT will not receive protection under the Refugee Convention, and MY’s appeal is dismissed by majority, affirming the refusal of her asylum claim. No new legal precedent was established beyond the reaffirmation of existing principles concerning burden and standard of proof in asylum claims relying on general country evidence versus individual evidence.