GM (Eritrea) & Ors v Secretary of State for the Home Department

An asylum claimant bears the burden of showing a reasonable degree of likelihood of Convention persecution or Article 3 ill-treatment. Whether an Eritrean claimant left illegally must be assessed on all the evidence and in the claimant’s individual circumstances. A disbelieved personal account is not automatically conclusive, but general evidence that illegal exits are common will not ordinarily establish that a particular claimant left illegally.

General evidence can suffice only where it effectively excludes any realistic possibility that individual circumstances permitted lawful exit. Where the claimant provides no accepted evidence of those circumstances and lawful-exit categories are not closed, the burden is not discharged.

Three Eritrean nationals appealed decisions of the Asylum and Immigration Tribunal rejecting their asylum claims. Each relied on a risk of persecution on return as a deserter or draft evader, which depended on showing that he or she had left Eritrea illegally.

The Immigration Judges had rejected almost all of the appellants’ personal accounts. GM and YT were accepted to have undertaken national service, but there was no accepted evidence about their circumstances before leaving Eritrea. MY was accepted to have been 17 years and four months old when she left, but her account of departure through Asmara airport was disbelieved.

The common issue was whether country evidence, including the guidance in MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059, nevertheless established a reasonable likelihood that each appellant had left Eritrea illegally.

1. All three appeals were dismissed. The dismissal of GM’s and YT’s appeals was unanimous. MY’s appeal was dismissed by Laws and Dyson LJJ; Buxton LJ would have allowed it.

2. The court applied the reasonable degree of likelihood standard in R v Home Secretary, ex p Sivakumaran [1988] 1 AC 958. The claimant bore the burden of proving a real or substantial, rather than fanciful, likelihood of Convention persecution or Article 3 ill-treatment.

3. The country guidance in MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059 established that illegal exit was crucial to risk on return, but also that it could not simply be assumed from the fact of departure. The inquiry remained individual. The claimant had to adduce material placing him or her in a vulnerable position before any effective evidential burden arose for the Secretary of State to contradict the case.

4. The absence of a credible personal account was not a legal rule that automatically defeated an asylum claim. The tribunal had to assess all available material. However, the majority held that general evidence about a class, such as 17-year-old Eritrean girls, did not prove that a particular member of that class left illegally unless the evidence made exceptions effectively fanciful.

5. GM and YT left substantial periods of their histories unexplained. It was therefore speculative to exclude the possibility that they fell within a lawful-exit category, including the non-closed student category. MY’s age did not alter that conclusion. Her account had been rejected, and the evidence did not exclude lawful exit through a scholarship or another visa category. She had not discharged the burden of proof.

6. Buxton LJ dissented as to MY. He considered that her age made lawful exit sufficiently implausible that illegal exit could be inferred by elimination. The majority rejected that conclusion.

1. Court of Appeal (Civil Division): All three appeals from the Asylum and Immigration Tribunal were dismissed: [2008] EWCA Civ 833.

2. Asylum and Immigration Tribunal: The respective Immigration Judges rejected the appellants’ asylum claims. In MY’s case, the decision under appeal was the reconsideration decision of Immigration Judge Sacks following the dismissal of a fresh asylum application.