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

In an Eritrean draft-risk case, a claimant who lacks general credibility cannot rely on an assumption that departure was illegal. The claimant must establish something about their own circumstances and history showing a reasonable likelihood of illegal departure. Objective evidence about exit permits and bonds may not, without individual evidence, discharge that burden. Where the evidence leaves an evidential vacuum, the absence of oral evidence may be decisive. Permission to appeal should be refused where the proposed appeal has no real prospect of success and there is no other compelling reason to grant permission.

The appellant, a young Eritrean national, was refused asylum but initially succeeded on human rights grounds because of the perceived risk of mistreatment on return as a draft evader. The Asylum and Immigration Tribunal ordered reconsideration after finding that the immigration judge had failed to consider whether the appellant had left Eritrea legally or illegally, an issue addressed in KA (Draft-Related Risk Categories Updated) Eritrea CG [2005] UKIAT 00165.

At the second reconsideration hearing, the appellant did not give oral evidence and relied on objective material concerning restrictions on exit permits, national service and bonds. The immigration judge found that he had provided no credible evidence establishing how he had left Eritrea or that he had been unable to obtain an exit permit. The central issue was whether that approach disclosed an arguable error of law.

1. Permission refused. The immigration judge’s reasoning was free from legal error, and the application had no real prospect of success. There was also no other compelling reason to grant permission.
2. The relevant question was whether the appellant had established a reasonable likelihood that he had left Eritrea illegally and would consequently be perceived on return as a draft evader. The objective reports showed that persons of national-service age could be refused exit permits and might obtain them only after completing national service or posting a bond. They did not establish that this appellant had departed illegally.
3. The approach in KA (Draft-Related Risk Categories Updated) Eritrea CG [2005] UKIAT 00165 was correctly applied. A person who generally lacks credibility is not to be assumed to have left Eritrea illegally. Although a person of the relevant age may not need to establish very much, they must provide evidence relating to their own circumstances and history rather than rely on an assumption.
4. The appellant’s decision not to give oral evidence left an evidential vacuum concerning when, how and on what documents he had entered the United Kingdom. The immigration judge was entitled to consider whether the appellant or his family could have raised a bond, particularly in light of his own account that substantial sums had been available to fund his journey. In the absence of credible individual evidence, the burden of proof was not discharged.

Lord Justice Dyson agreed with Lord Justice Maurice Kay. The application for permission to appeal was refused.

1. Court of Appeal (Civil Division): On 11 June 2008, refused the renewed application for permission to appeal, holding that the AIT’s approach disclosed no arguable error of law.
2. Asylum and Immigration Tribunal: After ordering reconsideration on the ground that the original immigration judge had failed to consider whether the appellant had left Eritrea legally or illegally, the immigration judge concluded on reconsideration that the appellant had not established a reasonable likelihood of illegal departure.
3. Initial immigration decision: The appellant’s asylum claim was rejected, but his human rights appeal was allowed on the basis of the perceived risk of mistreatment on return as a draft evader.