FB (Eritrea) v Secretary of State for the Home Department

In an asylum claim involving return to Eritrea, a tribunal may assess whether departure was unlawful by considering the whole evidential picture. Where the claimant’s account is comprehensively rejected as lacking credibility, the tribunal may conclude that the claimant left Eritrea lawfully and with official authorisation. It is not required to treat the claimant as an illegal national-service leaver merely because that status is asserted. A later guidance decision does not require reconsideration where it makes no relevant change to the approach already adopted. An apparent reference to an order to return to military service may be an alternative, or “even if”, finding rather than a finding that the claimant was a deserter.

The appellant, an Eritrean national who entered the United Kingdom in 2001, claimed asylum and asserted that he would be persecuted on return because he had left national service unlawfully and had engaged in activities associated with the ELF. His asylum claim was refused, and removal directions were made in April 2004. Following an earlier adjudication, reconsideration led to an Asylum and Immigration Tribunal decision in May 2007.

He alleged that the tribunal’s determination contained a contradiction about whether he was a deserter and that it had misunderstood relevant country-guidance cases. He also relied on the later guidance decision in MA (Draft evaders – illegal departures – risk) (Eritrea) v SSHD, [2007] UKAIT 00059. The central issues were whether the tribunal had made an error of law and whether its credibility findings permitted a conclusion that the appellant had left Eritrea lawfully.

1. Application refused. The tribunal’s conclusion that the appellant was not shown to be a deserter or a person of interest to the Eritrean authorities was not undermined by paragraph 88 of its determination. Read with the comprehensive credibility findings and paragraphs 86 and 89, the reference to his not having been ordered to return to military service was an alternative “even if” analysis, not a finding that he was a deserter.
2. The tribunal appropriately relied on the guidance in KA, including the principle that a person whose account generally lacks credibility is not assumed to have left Eritrea illegally. The risk on return depended materially on whether the appellant had left unlawfully.
3. The later guidance in MA (Draft evaders – illegal departures – risk) (Eritrea) v SSHD, [2007] UKAIT 00059, did not disclose an error of law. Its guidance confirmed that whether an Eritrean claimant had probably left illegally remained crucial. A comprehensive finding that the claimant’s account was incredible could, on the evidence and circumstances, support a conclusion that departure was lawful and authorised.
4. The adverse findings were comprehensive and concerned the appellant’s entire account, including the alleged airport activities and events said to create a risk on return. There was no relevant difference between the tribunal’s approach and the later guidance. The application was refused.

• Asylum and Immigration Tribunal: Following reconsideration, the tribunal rejected the appellant’s account and concluded that he had not shown that he was a deserter or would be of interest to the Eritrean authorities.
• Court of Appeal (Civil Division): Lord Justice Pill found no error of law in the tribunal’s determination and refused the application. The formal order was: “Application refused.”