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

In an asylum claim involving return to Eritrea, general evidence that lawful departure is difficult does not by itself establish a reasonable likelihood that an individual left illegally. The fact-finder must assess the individual evidence, including credibility and any evidential gap concerning the claimant’s circumstances before departure. A sustained failure to give a credible account of that period may justify a finding that illegal departure has not been shown. Where the relevant categories of persons able to obtain exit visas are not closed, the tribunal need not identify the precise means by which lawful departure occurred. The issue remains fact-sensitive, and the assessment must address whether there is a reasonable likelihood of persecution on return.

The appellant challenged an Asylum and Immigration Tribunal decision dated 9 December 2008, which dismissed his appeal against refusal of asylum. He also claimed humanitarian protection under Rule 339C of the Immigration Rules and protection under Article 3 of the Convention for the protection of human rights and fundamental freedoms.

Earlier tribunal findings that the appellant was not credible were left standing. The remaining issue was whether he had shown that he left Eritrea illegally. The tribunal concluded that the evidential gap concerning his activities between 2001 and 2006, together with the country guidance in MA (Draft Evader -- Illegal Departures -- Risk) (Eritrea) CG [2007] UKAIT 00059, did not establish illegal departure. The central question before the Court of Appeal was whether that conclusion involved an error of law.

1. Appeal dismissed. The tribunal was entitled to find that the appellant had not shown a reasonable likelihood that his exit from Eritrea was illegal.
2. The relevant assessment was individual and fact-sensitive. Country evidence showing that lawful exit was difficult for young men could not, without more, establish that this appellant had left unlawfully. The tribunal was entitled to consider the appellant’s adverse credibility findings and the complete lack of evidence about his activities during the five years before his departure. ([2009] EWCA Civ 1412, paras [23]–[25])
3. The tribunal was entitled to take account of the possibility that, if the appellant had not been serving in the army during that period, lawful routes to an exit visa might have been available. The categories identified in MA were not closed. It was unnecessary for the tribunal to specify the precise lawful means by which the appellant might have exited. ([2009] EWCA Civ 1412, paras [23]–[25])
4. The approach was consistent with GM, YT and MY (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833: failure to give a credible account does not conclusively determine the issue, but the claimant must still establish a reasonable likelihood of persecution or illegal departure on the particular facts. The court also relied on the guidance in MA.
5. Lords Justice Wilson and Richards agreed with Lord Justice Pill’s judgment. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Asylum and Immigration Tribunal’s conclusion that the appellant had not established a reasonable likelihood of illegal departure.
• Asylum and Immigration Tribunal: The tribunal’s decision dated 9 December 2008 dismissed the appeal against refusal of asylum and held that the appellant had not shown that he exited Eritrea illegally.
• Earlier tribunal proceedings: The first appeal was dismissed on 26 March 2007. Reconsideration was ordered on 8 October 2007. A second-stage reconsideration found no error of law, but permission to appeal was granted and the appeal was allowed by consent on 9 October 2008. The matter was remitted for a further hearing.