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

In an asylum claim involving return to Eritrea, a comprehensive rejection of the claimant’s account may justify a finding, on the whole evidence and circumstances, that the claimant has not established an illegal departure and left lawfully with official permission. Illegal departure must be established where it is material to the claimed risk; it is not assumed merely because the claimant is of military-service age. An apparently inconsistent tribunal determination must be read as a whole. An even if analysis does not necessarily amount to a finding that the assumed event occurred. A later guidance decision does not require reconsideration where it makes no relevant change to the approach already adopted.

The appellant entered the United Kingdom in 2001 and claimed asylum. His claim was refused and removal directions were made in April 2004. Following an earlier adjudication and an order for reconsideration, the Asylum & Immigration Tribunal issued a determination in May 2007.

The tribunal rejected the appellant’s account of political activity, illegal departure from Eritrea and desertion from military service. It concluded that he had left Eritrea legally and would not be of interest to the authorities on return. He challenged the determination on the grounds that it contained a contradiction about whether he was a deserter and that the tribunal had misunderstood the relevant country-guidance cases. He also relied on the later guidance decision MA (Draft evaders – illegal departures – risk) (Eritrea) v SSHD [2007] UKAIT 00059.

1. Disposition. Lord Justice Pill refused the application. The tribunal had made no error of law in its assessment of credibility, departure from Eritrea or risk on return.
2. Construction of the determination. The reference in paragraph 88 to the appellant not having been ordered to return to military service did not amount to a finding that he was a deserter. Read in the context of the extensive adverse credibility findings and the conclusions in paragraphs 86 and 89, it was an even if analysis. The tribunal was considering the consequences even if the alleged arrests had occurred. The determination was therefore not internally contradictory.
3. Illegal departure and risk. The tribunal’s reliance on KA, paragraph 113, was appropriate. A claimant whose account is generally lacking in credibility is not assumed to have left Eritrea illegally. Where the account is comprehensively rejected, the tribunal may consider all the evidence and circumstances and conclude that departure was lawful and authorised.
4. Later guidance. The relevant passages in MA, including paragraphs 234 and 449, were clear guidance to be followed. They did not materially alter the approach already taken by the tribunal. There was no relevant difference between the tribunal’s reasoning by reference to the earlier guidance and the approach stated in MA. Reconsideration was therefore unnecessary.
5. The adverse findings concerned the appellant’s entire account, including the alleged risk arising from his airport employment and political activities. There was no real prospect of success. Application refused.

• Asylum & Immigration Tribunal (AIT No: HX/19486/2004): Following an earlier adjudication and reconsideration, the tribunal issued a determination in May 2007 rejecting the appellant’s credibility and concluding that he had left Eritrea legally.
• Court of Appeal (Civil Division): Senior Immigration Judge Jarvis refused permission to appeal, and Sedley LJ refused permission on the papers. Lord Justice Pill agreed with those decisions and refused the application on 4 December 2007: [2007] EWCA Civ 1420.