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

In an asylum appeal, the claimant bears the qualified burden of establishing the facts said to create a risk on return. Where the claimant’s account of an illegal departure is rejected, and no credible evidence establishes whether the departure was legal or illegal, the tribunal may conclude that the burden has not been discharged. It need not speculate from background material or extract the favourable part of a discredited account. The Court of Appeal treated the circumstances as falling squarely within the majority approach in GM, YT and MY (Eritrea) v SSHD [2008] EWCA Civ 833, and found no error of law.

An Eritrean national claimed asylum after arriving in the United Kingdom. His original claim was rejected, and Immigration Judge Scobbie disbelieved his account of Pentecostal activities, arrest and escape. The judge made no specific finding about whether he had left Eritrea legally or illegally.

On a second reconsideration, the Asylum and Immigration Tribunal considered whether an alleged illegal departure created an additional risk under MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059. The tribunal rejected the appellant’s evidence about his departure and dismissed the appeal. The issue before the Court of Appeal was whether the absence of a specific finding in the original decision meant that the case differed from MY in GM, YT and MY (Eritrea) v SSHD.

The appeal was dismissed. Lord Justice Stanley Burnton gave the judgment, with Lord Justices Mummery and Wall agreeing.

1. The relevant issue was whether the appellant had established that he had left Eritrea illegally. The country-guidance decision in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059 identified the risk associated with illegal departure, particularly for persons of military age, but did not remove the need to establish the relevant facts.
2. The majority decision in GM, YT and MY (Eritrea) v SSHD [2008] EWCA Civ 833 applied. Where an appellant’s account had been disbelieved and there was no credible evidence showing whether departure had been legal or illegal, the appellant had failed to discharge the burden of proof. The present case was on all fours with that decision.
3. The tribunal was entitled to assess the appellant’s evidence and reject it on credibility grounds, having regard to the earlier comprehensive rejection of his account. It was also entitled to refuse to accept the favourable part of a discredited account in isolation. Background material could not establish, through speculation, the true circumstances of the appellant’s departure.
4. The fact that the first decision had made no specific finding about the legality of departure did not require the tribunal on reconsideration to infer illegal departure. The tribunal had made no error of law. The appeal was dismissed and the application was refused.

• Court of Appeal (Civil Division): dismissed the appeal, holding that the Asylum and Immigration Tribunal had made no error of law.
• Asylum and Immigration Tribunal: on a second reconsideration promulgated on 29 April 2008, rejected the appellant’s evidence about the circumstances of his departure and dismissed the appeal (AIT No AA/11128/2005).
• Asylum and Immigration Tribunal: Immigration Judge Scobbie’s decision dated 26 November 2005 rejected the appellant’s account and found no real risk of persecution on return, without making a specific finding about the legality of his departure.