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

In an asylum claim based on alleged illegal departure from Eritrea, objective evidence alone cannot justify assuming that departure was illegal when the claimant’s account has not been accepted. A Court of Appeal decision on materially indistinguishable facts was followed. A claimant may nevertheless submit fresh evidence to the Secretary of State, who must consider whether it amounts to a new claim.

Following a reconsideration ordered by Lord Justice Sullivan, Senior Immigration Judge Gill concluded that the appellant had not established that she had left Eritrea illegally. The appellant sought permission to appeal against that determination. The Court of Appeal considered the decision in GM (Eritrea) v SSHD (and conjoined appeals), which concerned a materially similar claim involving a young Eritrean woman whose account of departure had not been believed. The central issue was whether objective evidence alone could establish or justify an assumption of illegal departure.

The application for permission to appeal was refused, and the appeal was dismissed.

1. The court treated GM (Eritrea) v SSHD (and conjoined appeals) [2008] EWCA Civ 833 as governing the materially indistinguishable circumstances. In that decision, the majority had considered whether the objective evidence alone could support an assumption that a young Eritrean woman had left Eritrea illegally, where her account had not been believed. The answer was no.
2. Because the appellant’s case was no different in the legally material respect, the court applied the same conclusion. Objective evidence alone could not cure the failure to establish illegal departure.
3. The court added that no further evidence had been produced at the reconsideration hearing. If the appellant possessed evidence supporting her account of illegal departure, she should send it to the Secretary of State. The Secretary of State would then have to consider whether the fresh evidence amounted to a new claim. This was additional guidance following dismissal of the appeal.

• Court of Appeal (Civil Division): On 28 April 2009, the application for permission to appeal was refused and the appeal was dismissed under [2009] EWCA Civ 504.
• Asylum & Immigration Tribunal: Following reconsideration ordered by the Court of Appeal, Senior Immigration Judge Gill concluded that the appellant had not established that she had left Eritrea illegally. The appeal was recorded under AIT No. AA/05505/2007.