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

In an asylum appeal, a tribunal need not identify the precise date or legal category of departure where the claimant’s account is wholly disbelieved and the remaining evidence shows only departure from Eritrea in 2008. Country guidance treating August/September 2008 as the turning point for blanket exit restrictions does not require speculation about exempt categories. General evidence alone cannot establish a reasonable likelihood of illegal departure unless the claimant must have left illegally whatever her particular circumstances. An appellate tribunal may scrutinise whether findings are logically consistent with the evidence, but must not substitute its own factual determination for adequate findings below. The asylum standard remains whether the asserted events are reasonably likely.

MA, an Eritrean national, claimed asylum after arriving in the United Kingdom on a domestic worker’s visa. She alleged that she had left Eritrea illegally after detention and feared persecution as a draft evader. The First-tier Tribunal rejected her account, found that she had probably left Eritrea legally in 2008, and dismissed her asylum, humanitarian protection and human-rights claims.

The Upper Tribunal upheld that decision on 11 June 2013. The appeal concerned whether the Upper Tribunal had impermissibly repaired deficient reasoning by the First-tier Tribunal and whether it had applied the wrong standard of proof when assessing the evidence about MA’s departure and passport.

The appeal was dismissed. Ryder LJ gave the judgment, with Richards J and Moore-Bick LJ agreeing. Neither ground disclosed an error of law.

1. Adequacy of the First-tier Tribunal’s reasoning. Judge Cope had rejected every material part of MA’s account, expressly applied the correct burden of proof, and gave reasons for finding that she had not established an illegal departure or adverse interest to the Eritrean authorities. His determination was clear and sufficient.
2. Appellate restraint. Judge Froom was entitled to scrutinise whether the findings were logically consistent with the available particular and general evidence. That exercise did not substitute new reasoning for the First-tier Tribunal’s decision. Although the reference to a possible family link to the government or education was an inaccurate shorthand for the evidence, it was immaterial and did not affect the result.
3. Illegal departure from Eritrea. The country guidance in MO (Eritrea) [2011] UKUT 190 (IAC) treated August or September 2008 as the turning point when blanket exit restrictions were imposed. MA’s evidence had been rejected, and the only surviving evidence showed that she left in 2008. It was therefore open to the tribunal to conclude that she was more likely to have left before the restrictions applied. No precise date or exempt category had to be identified, because further inferences would have been speculative.
4. General evidence and personal circumstances. Under GM (Eritrea) & Ors v SoSHD [2008] EWCA Civ 833, a case resting entirely on general evidence could succeed only if the claimant must have left illegally whatever the facts, apart from fanciful exceptions. MA had no accepted personal evidence capable of establishing that conclusion. The country guidance in MA (Eritrea) (Draft Evaders - illegal departures - risk) CG [2007] UKAIT 00059 did not compel a different result.
5. Standard of proof. The applicable standard was whether the asserted events were reasonably likely. A finding that a passport might have been obtained through an escape route was not a finding to that standard. Judge Froom merely tested the logical consistency of the circumstantial evidence and treated the passport issue as neutral; he made no impermissible independent finding.

The Upper Tribunal’s decision therefore stood and the appeal was dismissed.

• Court of Appeal (Civil Division) — Appeal dismissed on 16 December 2014.
• Upper Tribunal (Immigration and Asylum Chamber) — Deputy Upper Tribunal Judge Froom dismissed the appeal on 11 June 2013 and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal — Judge Cope dismissed MA’s appeal on 14 December 2012.