Ariaya v Secretary of State for the Home Department

Country guidance must be followed by an immigration tribunal where it applies, unless fresh evidence materially affecting its factual basis justifies departure. A reported tribunal decision that is not country guidance does not provide generally applicable guidance merely because it is reported. Whether an Eritrean returnee faces risk as a draft evader or deserter depends on the individual facts. Draft age alone does not establish risk. A tribunal may find no such perceived risk where the facts show no call-up or draft avoidance, or where the person was demobilised and can demonstrate that status. An appeal on a point of law cannot recast disagreement with factual assessment or weight as legal error or irrationality.

Two Eritrean nationals appealed against decisions of the Asylum and Immigration Tribunal dismissing their asylum and human-rights appeals. Ariaya contended that he would be perceived as a draft evader on return. The tribunal found that he had not been called up, had not left Eritrea to avoid service, and would not be identified as a draft evader.

Sammy claimed to be a deserter from national service. On reconsideration, the tribunal found that he had been demobilised and could obtain evidence to establish that he was neither a deserter nor a draft evader. It also rejected a wider claim of risk as a failed asylum seeker. The central issues were the status of reported and country-guidance determinations, the permissibility of challenging country guidance without fresh evidence, and whether either tribunal had made an error of law in its factual risk assessment.

1. The appeals were unanimously dismissed. Richards LJ held that neither tribunal had made an error of law. Coleridge J and Laws LJ agreed.

2. In Ariaya, NM was a reported determination but not a country-guidance case. It did not purport to give general guidance or to alter the guidance in SE on whether a returnee would be perceived as a draft evader. The tribunal was entitled to follow SE, having considered updated objective evidence. Its conclusion that Ariaya would not be so perceived was reasonably open on the evidence.

3. The asserted failure to consider objective material was in substance a challenge on Wednesbury grounds. A disagreement with the tribunal's assessment of individual evidence, or with the weight given to it, did not establish legal error.

4. In Sammy, the finding that the appellant had been demobilised was a reasoned factual conclusion open to the tribunal. Once that finding stood, it was accepted that he could show on return that he was neither a deserter nor a draft evader and therefore faced no relevant risk.

5. The tribunal was entitled, and required, to follow the country guidance in IN. Its conclusions that returnees generally were not at risk, and that draft age alone was not determinative, formed an integral part of that guidance. The evidence before the tribunal gave no basis to depart from it. A challenge to country guidance must be made through fresh evidence materially bearing on the existing findings, not by relitigating it indirectly. The court also noted, without deciding the point conclusively, that a reconsideration may be confined to the issues specified on remittal under the Asylum and Immigration Tribunal (Procedure) Rules 2005.

• Court of Appeal (Civil Division): Dismissed both appeals: [2006] EWCA Civ 48.
• Asylum and Immigration Tribunal: Dismissed Ariaya's appeal on 29 April 2005, finding no real risk that he would be perceived as a draft evader.
• Asylum and Immigration Tribunal: Dismissed Sammy's appeal on 8 June 2005 after reconsideration, finding that he had been demobilised and was not a deserter.
• Immigration Appeal Tribunal: In January 2005, remitted Sammy's appeal for findings on whether he was a deserter and the consequences of that status.