Upper Tribunal (Großbritannien)

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Upper Tribunal (Großbritannien), Urteil vom 07.10.2016 - UKUT 443 (IAC), MST and Others (engl.) - asyl.net: M24319
https://www.asyl.net/rsdb/m24319/
Leitsatz:

Leitentscheidung zu Eritrea:

1. Länderberichte zu einem autoritären Staat wie Eritrea müssen sehr sorgfältig geprüft werden, insbesondere solche Informationen, die auf Auskünfte des Regimes zurückgreifen.

2. Das eritreische System des Militär- und Nationaldienstes besteht weiterhin unbegrenzt und umfasst seit 2012 auch eine Bürgermiliz, die ebenfalls als Militärdienst zu klassifizieren ist.

3. Die meisten Staatsangehörigen, die seit 1991 aus Eritrea ausgereist sind, haben das Land illegal verlassen. Personen mit einem bestimmten Bildungsniveau oder mit insbesondere im Nationaldienst angelernten Fähigkeiten können das Land auch legal verlassen.

4. Die Bezahlung einer Diaspora-Steuer und die Abgabe einer Entschuldigungserklärung mindern für Rückkehrende nicht das Risiko einer menschenrechtswidrigen Behandlung.

5. Der eritreische Staat unterstellt Personen, die aus Eritrea illegal ausreisen und die im wehrfähigen Alter sind oder bei denen dieses Alter bevorsteht, bei Rückkehr wahrscheinlich die Entziehung vom Wehrdienst oder sieht sie als Deserteure an.

6. Rückkehrende im wehrfähigen Alter werden wahrscheinlich zum Nationaldienst herangezogen, was auf eine Verletzung von Art. 3 EMRK (Verbot unmenschlicher Behandlung) und Art. 4 Abs. 2 EMRK (Verbot der Zwangsarbeit) hinausläuft.

(Leitsätze der Redaktion)

Schlagwörter: Eritrea, Nationaldienst, Zwangsarbeit, politische Verfolgung, Militärdienst, illegale Ausreise, Herkunftslandinformationen, Bürgermiliz, Militärdienst, unmenschliche Behandlung, zugeschriebene politische Überzeugung, Nationaler Dienst, Wehrdienstverweigerung, Desertion, Rückkehrgefährdung,
Normen: EMRK Art. 3, EMRK Art. 4, EMRK Art. 4 Abs. 1, EMRK Art. 4 Abs. 2,
Auszüge:

[...]

Decision and Reasons [...]

The legal issues

25. In the course of submissions it became apparent that there was a dispute between the parties over several legal issues, namely the significance of UNHCR guidelines; the significance of previous country guidance; the role of expert evidence; methodology of sources (including anonymity of sources); and the proper test for deciding risk on return contrary to Article 4 ECHR which prohibits slavery, servitude and forced labour. In the event we decided we could resolve all but the last by reference to established case law.

The appellants [...]

27. [...] The bare elements of their claims can be summarised as follows:

1). MST, who was aged 27 at the hearing before us, submits that he is at risk on return because he left Eritrea illegally and will be viewed as a deserter. He will be forced back into national service on return.

2). MYK, who was aged 31 at the hearing before us, submits that he is at risk on return because he left Eritrea illegally and will be viewed as a deserter. He will be forced back into national service on return.

3). AA, who was aged 29 at the hearing before us, is a paranoid schizophrenic. He submits that he will be forced to undergo national service on return notwithstanding his mental health. [...]

Findings on main general issues

241. We are now in a position to give our findings on the main issues arising in this case. As signposted already, we consider it best as much as possible to set down in the same place first a short synopsis of the relevant background materials; second a reference to any existing country guidance on the issue; third, a brief outline of the submissions we had regarding each issue; and fourth our findings on it. We shall deviate a little from this structure where appropriate. It is in the nature of the main issues thrown up by the Eritrean context that some overlaps will occur. [...]

Our assessment

Enforcement and punishment

280. Before addressing conditions, we shall first of all address punishments because it seems to us that notwithstanding the respondent’s submission that the Eritrean authorities have adopted a “more pragmatic approach” as stated in submissions and in the Country Information and Guidance: Eritrea: National (incl. Military) Service, Version 3.0, August 2016), the preponderance of the evidence points strongly to the conclusion that the Eritrean regime of military/national service (excluding civilian national service and the people’s militia), is characterised by a system that often responds to transgressors with harsh and disproportionate punishments. We exclude from this conclusion civilian national service and the people’s militia because by contrast the evidence does not demonstrate that punishment for transgressions by persons evading or deserting from one or the other is either as likely or as severe in nature.

281. We would accept that the preponderance of evidence also indicates that roundups (giffas) are happening less frequently and that the “shoot to kill” policy is now intermittent and arbitrarily applied and that punishment of family members or associates may not be as common as it was, but these are only some of the regime’s repertoire of punishments, and there is a substantial body of evidence, including the US State Department reports, indicating that the generality of evaders and deserters are harshly punished and this is a common thread running through the majority of source evidence. We note that the 2015 UNCOI Report at [818] refers to the grant of an amnesty to deserters in November 2014, but this was from detention and the Report does not suggest this represented a change of government policy. The main evidence concerning this matter on which the respondent relies is that from Eritrean government ministers and interviews with individuals during the UKFFM and we have explained why we feel that this evidence should be approached with caution: see [192]-[201]. We have taken into account the evidence of AI (the AI Report on AA at [104]) that punishment for deserters is generally more severe although this is arbitrary and that the generality of evaders and deserters are punished with imprisonment for varying periods. Those caught on the border trying to flee are almost always subjected to periods of arbitrary detention. Generally (see [106]) those arrested for evading service are detained for some time between one and six months. The reports demonstrate (see [115]) a high level of variation which is said to be indicative of the arbitrary nature of punishments that are at the discretion of officers. The EASO Report concludes at [3.8] that deserters and evaders are punished by imprisonment if caught within the country before being able to leave or on return at the airport and that punishment is harsh being more severe for deserters. PK’s evidence throughout is that deserters/evaders will be subject to persecution.

282. The 2015 UNCOI Report (at [96] and [97]) reports arbitrary detention, enforced disappearance, torture and mistreatment generally in Eritrean detention centres. The Commission spoke to those who had fled in the past two years and reported that they had been subject to ill-treatment and detained without due process. The Commission (at [239]) reports arbitrary detention for periods ranging from months to years, enforced disappearances ([249]) and torture ([259]). EASO reports (at [4]) poor conditions in detention. The Swiss fact-finding report of March 2016, to which several references are made in the new Home Office CIGs of August 2016, considers that even though the treatment of deserters appears to have become less harsh in recent years, “[m]ost sources report that first time offenders are now usually detained for several months” (cited in the CIG on National Service at 15.2.18). Given that we consider anything beyond very short-term detention in Eritrea to create a real risk of ill-treatment, this confirms our view that deserters/evaders continue to face a real risk of persecution.

283. To summarise, we reject the respondent’s case that enforcement and punishment is reserved for those who are involved in oppositional activity over and above desertion or evasion. It is impossible in our view to derive from the evidence as a whole any other conclusion than that for Eritreans inside the country any evasion of military service or desertion still carries a real risk that the generality of transgressors will be subject to treatment which amounts to persecution as well as serious harm. [...]

Eligibility for national service and exit visas [...]

Our assessment [...]

328. We conclude that the categories of lawful exit have not significantly changed since MO. The Eritrean system of exit visas continues to afford, and to be perceived by a significant number of Eritreans as affording, real, albeit restricted, possibilities for them to avail themselves of and accordingly we would list the exit categories as follows (where the categories are different from those given by EASO, they are underlined):

- Men aged over 54

- Women aged over 47

- Children aged under five (with some scope for adolescents in family reunification cases)

- People exempt from national service on medical grounds

- People travelling abroad for medical treatment (this is now listed as a separate category)

- People travelling abroad for studies or for a conference [This is now listed as a separate category. We do not think that the EASO qualifier “and in individual cases” serves any descriptive purpose]

- Business and sportsmen [here again we do not think that EASO’s prefatory words “[I]n some cases” adds any descriptive purpose]

- Former freedom fighters (Tegadelti) and their family members

- Authority representatives in leading positions and their family

The 2 per cent tax and the regret letter [...]

Our Assessment

333. The weight of the evidence points very much in the direction that the letter and the tax do not guarantee safety for Eritreans returning; rather they enable them to access consular services. There is scant evidence of anyone who has not been naturalised in another country paying the tax and/or signing the letter and returning safely or otherwise. We accept PK’s evidence about this, which was very much corroborated by evidence from other sources. There being insufficient detail about the returnees to draw conclusions, we would have reached this conclusion independently in any event. Apart from the two exceptions referred to by the UNCOI, it would appear that the bulk of the examples cited concern or may concern persons who voluntarily returned, which in our view (as set out below when dealing with failed asylum seekers and forcible returns at [335]-[337] and [357]-[367]) puts them in a different category.

334. Suffice to say for the purpose of this section, that we do not accept that the evidence goes anywhere close to establishing that the payment of the tax and the signing of the letter would enable draft evaders and deserters to reconcile with the Eritrean authorities. In relation to the letter of regret, we also have serious doubts that it can properly be described as a basis for reconciliation, since its terms amount to a confession of guilt by the person who signs it to what the Eritrean regime considers “appropriate punishment” in the context of a regime with a very poor human rights record. [...]

Illegal exit by those perceived on return to be draft-evaders or deserters [...]

Our Assessment

344. As regards the issue of how decision-makers should decide whether a person has left illegally, we see no reason to differ from the precise terms of the guidance in MO at (iii):

"(iii) ....The general position as regards illegal exit remains as expressed in MA, namely that illegal exit by a person of or approaching draft age and not medically unfit cannot be assumed if they have been found to be wholly incredible. However, if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inference can be drawn in the light of adverse credibility findings."

None of the parties has pointed to any evidence indicating the need for a different approach on this issue. We would next reiterate that it is incorrect of the March and September 2015 and August 2016 CIGs to portray (as they certainly do in places) the position set out in MO as being that Eritreans who left illegally are considered to be, per se, at risk. The MO position was explicitly stated as being subject to three exceptions (see [133iv]). Indeed, UK country guidance has never asserted that the fact of illegal exit from Eritrea is of itself enough to place a person at risk.

345. We are bound to say that certain of the arguments advanced seemed to us to obfuscate rather than assist the Tribunal’s task. The possibility canvassed by the appellants, for example, that sums extracted from members of the diaspora may be used by the Eritrean government to fund purchases of arms in breach of a UN arms embargo by militant groups that destabilise the region, seems to us far removed from the task of identifying risk categories or factors. Be that as it may, our view is that the totality of the evidence continues to support the view that the fact of illegal exit is not of itself enough to place an individual at risk.

346. The question is, therefore, what further characteristics are needed to place a person at real risk of persecution or serious harm on return.

347. We consider two further characteristics are needed: (i) that they will be perceived on return as evaders/deserters; and (ii) that they will be persons subject to forcible return. Even then, however, we continue to think that this category is subject to certain exceptions and that they are exactly the same as those identified in MO, namely (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence. We do not accept the position identified in the latest version of the Home Office CIG on Illegal Exit published on 4 August 2016 that the scope of these exceptions has widened.

348. The respondent has sought to argue that we should adopt a more open-ended fact-specific analysis, but her argument is dependent on the premise that those who have left Eritrea illegally as evaders or deserters have the ability to regularise their position by payment of the diaspora tax and letter of regret. For reasons given above at [333] we reject this. Persons who are likely to be perceived as deserters/evaders will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.

349. Whilst we accept there are individual examples of the government not punishing or mistreating returning draft evaders or deserters who left illegally, they are small in number and in some cases appear to pertain to those who returned voluntarily (and may have naturalised in another country: see immediately below).

350. Insofar as the evidence of diaspora members returning to Eritrea for holidays is concerned, the evidence does appear in one respect to support the respondent’s position in that it persuades us that they include a significant number of draft evaders and deserters who left illegally. We infer that because if it were confined to those who left Eritrea during the war of independence and their children and/or those who left lawfully, that would have been identified by more than one source on the basis of some empirical evidence. Given that the annual numbers appear relatively high (even if not as high as the government figure of 80,000-90,000 as stated by Yermane Gebreab), we seriously doubt that all could be from that category. Even according to PK (whose evidence was the main source for the view that they were confined to this cohort) there are significant numbers of individuals among the diaspora who left Eritrea illegally after 1991 but who have close connections with the present government and as such would be unlikely to face any difficulties on return.

351. However, it seems to us that the great majority of such persons are likely to be naturalised. We accept that the evidence regarding this is sketchy, but consider it a reasonable inference that (unless having close connections with the present government as set out in the first two of three aforementioned exceptions) persons who have not naturalised would not put themselves and their families in the position of going back to a country with such a poor human rights record. Such an inference would clearly not be warranted if there was concrete evidence of persons (evaders/deserters) who exited illegally going back without having naturalised; but there is not.

352. One of the main sources relied on by the respondent regarding this matter, the DFFM Report, is based to a significant degree on evidence given by PK, which he says was misinterpreted and in consequence cannot be relied on. The same we think is true of the evidence of Eritrean government interlocutors consulted by the DFFM team. It must also be borne in mind when considering the possible identity of those who go back for holidays, that diaspora persons who have not naturalised will certainly include those who have obtained settlement or some kind of permission to stay under the Immigration Rules, but they will also include asylum seekers or illegal entrants or overstayers. It is difficult to see that any persons in the last three categories would voluntarily leave the UK to go anywhere, let alone Eritrea, since they would thereby negate their chance of returning. It is also a reasonable inference that a significant number of those who have acquired refugee status (but who have not naturalised), would be wary of returning to Eritrea on holiday for fear that such conduct may expose them to cessation action on return back to the country of refuge (although we cannot assume, we accept, that all of those we are discussing necessarily act according to such concerns).

353. The significance of holidaying returnees having prior naturalisation is that, whilst the Eritrean government might well have chosen to disregard their foreign nationality and rely simply on their being Eritreans who left illegally and who are draft evaders/deserters, it appears very much that they do not, as the Western embassy example given to the DFFM illustrates.

354. What, then, is the basis for considering that those who left illegally and will be perceived on return as draft evaders/deserters would be at risk? There is first of all, the evidence as to what happens to evaders/deserters within Eritrea. As explained at [253]-[256], we are satisfied that despite a lessening in the frequency of round-ups (giffas) and "shoot to kill" operations and punishment of relatives, the treatment such persons are likely to face amounts to persecution or serious harm, since it continues to take the form of widespread recourse to detention. Mr Rawat conceded during the hearing that anything more than a very short period in detention in Eritrea would carry a real risk of ill-treatment and on the available evidence there is in our judgement a real risk that draft evaders/deserters regularly face more than very short-term detention. There is some evidence that some persons may, instead of detention, face assignment to military/national service, but for an initial period of time, it is likely this will be assignment to military duties and, in any event, as will be explained below, we consider that a requirement to perform national service duties, military or civilian, would constitute forced labour contrary to Article 4 of the ECHR, if not also Article 3.

355. Second, argument that the Eritrean authorities would treat returning evaders/deserters differently from in-country evaders/ deserters seems to us insufficiently made out. Indeed, one of the most recent sources cited at 11.1.26 of the August CIG on Illegal Exit (the Swiss Report of March 2016) states that "[t]he few available reports indicate that the authorities treat them similarly as persons apprehended within Eritrea." This brings us to the second characteristic which we consider is required to bring a person within a risk category.

356. The specific category of persons with whom we are concerned are not draft evaders or deserters who have left illegally and would be making a voluntary return. In relation to the latter there are some possible examples in the evidence which suggest they can reach reconciliation with the Eritrean authorities. We have taken particular note in this regard of the sources relating to voluntary returns cited by the latest version of the Home Office CIG on Illegal Exit at 10.1.16 (citing a UKFFM source), 11.12.1 and 11.1.26 (citing the Swiss Report on March 2016). Those with whom we are concerned are persons who are or will be perceived as evaders/ deserters and who will be known to be persons who are the subject of a forcible return. Whilst we do not necessarily think the Eritrean authorities would react in precisely the same way to individual forced returnees as they have in the past to mass forcible returnees, we consider it reasonably likely that they would feel similarly impelled to adopt a punitive stance in a way they have not sometimes done to voluntary returnees. On the totality of the evidence we consider this is a reasonably likely state of affairs. We must analyse the issue of forcible returns in more depth in the next subsection.

Forcible Returns [...]

Our assessment

360. We consider that the further evidence before the Tribunal since MO regarding forced returns requires us to address its implications more closely. Although there are some shortcomings in the sourcing of the evidence regarding forcible returns since 2011 (e.g. inconsistency between the various sources over the precise details regarding recent returns to Sudan), we cannot ignore the fact that the evidence suggests much more strongly than was the case in MO that draft evaders and deserters forcibly returned run a real risk of suffering ill-treatment.

361. The 2015 EASO Report notes that Eritreans were repatriated from Egypt in 2009, 2011 and there have been many instances of overland repatriations from Sudan in recent years. "No information is available on the fate of those repatriated after their return, however". It goes on to note, nevertheless, that some of the respondents contacted in Eritrea during Denmark’s and Norway’s FFMs in late 2014 and early 2015 believed that (repatriated) deserters and draft evaders were held in prison for several weeks or months and were then reassigned to national service. The EASO Report records what appears to be the same incident, noting that some of the respondents contacted during Denmark’s and Norway’s FFMs in late 2014 and 2015 considered a spell in prison of at least several weeks was the likely outcome for those forcibly repatriated: see para 3.8.2.

362. The Arapiles study ("The True Human Rights Situation in Eritrea: The New UK Home Office Guidance as a Political Instrument for the Prevention of Migration" p19 at n182]) refers to an Eritrean refugee interviewed in April 2015 stating that he had been deported from country X when his student visa expired in 2013 and suffered ill-treatment.

363. The 2015 UNCOI Report notes at [430] the forced repatriation of around 40 Eritreans from country E in 2014, plus an unspecified number from country D in the same year. It is said in the same context that there is a "common pattern" of systemic ill-treatment of such persons ([431], see also [1069]). At [433] the report notes that several hundred Eritrean refugees who managed to escape and were forcibly returned to Eritrea were reported to have faced detention, torture and other forms of inhuman treatment. At [436] the Commission said it had found "two exceptions to the rule that returnees are arrested, detained and forced to enlist in the national service upon their arrival in Eritrea". These were:

"A group of Eritreans has returned from [country D] with a letter certifying that they had paid the 2 per cent Rehabilitation Tax and had already been detained several years in [country D]. The witness had himself been imprisoned for three years in [country D]. He was given a permit to return to his home town, but which had to be reviewed every two months. He left Eritrea again shortly after being deported. The other case concerned forced repatriation to Eritrea in 2014, where seven older men were reportedly freed, while the younger men who were returned to Eritrea at the same time were not released."

364. Albeit the recent evidence is sketchy and even though it falls short of solid documentation, in terms of the number of incidents (some very recent), it amounts to significantly more than was before the Tribunal in MO and we do not think it can be disregarded.

365. The UT in MO considered that the context of mass forcible returns may affect the reaction of the Eritrean authorities because such returns are likely to have a public profile and those authorities may feel they have to send out a tough message. By implication the UT did not necessarily consider that those authorities would react in a similar way to forcible returns undertaken on an individual basis. We feel it necessary to reconsider that assumption. The overall context is highly unusual because it would appear that in Europe and indeed other Western countries, governments have not been making any enforced returns to Eritrea for some time; that at least is what we understand the position to be from Mr Rawat when we sought clarification on the matter. That was not the Tribunal’s understanding of the position in 2011, when, in any event, although falling short of considering that those who left illegally would per se face ill-treatment on return, the UT assessed that the great majority would.

366. Be that as it may, the recent evidence of forcible returns made from non-Western countries, chiefly the overland repatriations from Sudan, is really the only type of evidence we have against which to assess risk on return from Western countries such as the UK. And it constitutes evidence showing that in the last few years those who are likely to be perceived on return as draft evaders/deserters and who have been the subject of such forcible returns have met with, or are likely to have met with, ill-treatment on return. Further, recommencement of forcible returns from Europe would very likely in our judgement be seen by the Eritrean authorities as requiring them to adopt a punitive stance even in relation to persons in the aforementioned category who are returned individually. We infer that their reaction to such a re-commencement would be a matter of high importance to the regime.

367. It is possible to conjecture that the Eritrean government would feel the need, especially in the light of recent EU funding, to demonstrate a more relaxed or softer policy, such as was mooted in the DFFM Report mainly (it seems) by reference to voluntary returnees. On the other hand, the evidence points more strongly to the policy imperatives of the current Eritrean government being driven not by concerns about its image in the eyes of Europe and the West but by domestic concerns about the maintenance of control and regulation of their own population and the need to show that those perceived as draft evaders or deserters would not receive preferential treatment on return. In our judgement there is a real risk that the likely reaction would therefore be similar to that given to those forcibly repatriated from Sudan and the evidence we have about that indicates such persons are likely to face treatment contrary to basic human rights.

Draft Evaders and Deserters [...]

However, for the reasons we have given earlier, we conclude that the preponderance of the evidence continues to support the MO position and that, although it is reasonably likely that persons who have been released will have documentation which will enable them to travel within Eritrea, the fact that they are reservists (a term we use here simply to identify those who have been discharged/released) would not entitle them to an exit visa. Whilst release is commonplace, it appears that it is often de facto and that those who benefit would not ordinarily be given or hold official documents confirming that they have completed national service. We consider that recall is not common but that the Eritrean system operates to ensure that the great majority of those of or approaching draft age are regarded as still "on the books" and as not having completed national service. What was noted in the EASO Report regarding civilian national service and those in ministries strikes us as very pertinent: "[m]any employees of ministries do not know whether they are still engaged in national service or have been dismissed". We remind ourselves that the great majority of sources, including the very recent UNCOI Reports, consider that the duration of national service is prolonged. From the evidence we conclude that a person who exits Eritrea illegally and is of or approaching draft age, is likely on return to be perceived as an evader or deserter because of non-completion of national service. [...]

Slavery and servitude: our assessment

402. The principal basis on which the appellants contend that the Eritrean national service system amounts to slavery is the conclusions of the 2016 UNCOI Report to this effect. We would note that we think they are entirely right to focus on the 2016 Report because the 2015 Report, although containing at Part 6 a section C headed "Abused, Exploited and Enslaved", only refers glancingly to enslavement or servitude (e.g. at n.2093) or "slave-like" conditions and only illustrates such concepts in the context of the treatment of women in military contexts; it nowhere refers specifically to either international human rights law (IHRL) prohibitions on slavery and servitude (e.g. Article 8, ICCPR) or specific customary international law provisions.

403. We have considerable reservations about the reasoning adopted in the 2016 Report as regards slavery and servitude.

404. First, although stating that it is guided, inter alia, by IHRL and customary international law ([6]), the Commission’s analysis is conducted in the context of deciding whether the Eritrean system of military/national service amounts to enslavement as a crime against humanity - as defined by Article 7 of the Rome Statute (see e.g. [191]) or by equivalent customary international law (e.g. [196]-[197]). Correspondingly, the jurisprudence it bases itself on is that of the international criminal tribunals such as the ICTY and the ICC. That the Commission should choose that context is only to be expected given that its mandate had been extended for this purpose "in order to investigate systematic, widespread and gross violations of human rights in Eritrea with a view to ensuring full accountability, including where these violations may amount to crimes against humanity" ([(3]). But it does mean that for our purposes we cannot treat its analysis as being based directly on IHRL - either Article 8 of the ICCPR or its European equivalent in Article 4 of the ECHR. Our task is limited to deciding whether the Eritrean system violates Article 4 of the ECHR and despite more than one opportunity to do so, the ECtHR has not seen the international criminal law framework as providing guidance for the interpretation of Article 4.

405. Whilst it has oppressive features, we do not consider that the Eritrean system of military/national service constitutes anything comparable to the paradigm identified in Siliadin of "the obligation for the 'serf' to live on another person's property and the impossibility of altering his condition", certainly not in the context of assessing the military/national service system as a whole, whose conditions are extremely variable: see above [267], [274] and [288]. Even those who are required to perform lengthy national service cannot sensibly be described as being compelled to live permanently on government property and whilst the possibilities for exemption or de facto demobilisation are limited, it cannot be said that there is an impossibility to alter one’s condition. Nor do we consider that the obligation to perform military/national service can sensibly be described as amounting to the "exercise [by the Eritrean state] of a genuine right of legal ownership …. reducing those called up to the status of an "object"". Eritrean law does not create such a legal ownership.

406. We entirely follow the Commission’s summary of the approach taken in the international criminal law context by the ICTY trial and appeals chambers in Kunarac (Kunarac [2001] IT-96-23-T/IT-96-23/1-T (Tribunal) and Kunarac [2002] IT 96-23 8 IT96 23/1-A (Appeals Chamber)) and that taken by the ICC Trial Chamber in the Katanga case (Kantanga [2009] IT-95-5/18-AR73.3) which consider that the powers attaching to the right of ownership should not be construed as limited to the crime of "chattel slavery" and regards a number of other indicia of ownership and control (ten in total) as being relevant. However, even on the Commission of Inquiry’s own application of these indicia to the Eritrean context, we do not follow how it progresses from its argument that there are certain aspects of the Eritrean system of military/national service that constitute the crime of enslavement to its conclusion that the programme generally, including civilian national service and service in the people’s militia, constitutes such a crime.

407. Of the ten indicia relied on to justify the finding that the system amounts to enslavement, there are at least three that can only be applied to civilian national service and the people’s militia with considerable difficulty: e.g. "(vi) inhumane conditions", "(vii) torture and killing" (where all the examples cited relate to military national service, not civilian national service) and "(x) impact on family life". As regards civilian national service, the 2015 UNCOI Report itself, for example, notes at [1443] that:

"[c]onditions in civil service are perceived to be far better than in the army because conscripts may lead a civilian life. They have regular office working hours. Outside working hours, their time is free and they usually have at least part of the weekend off. … Conscripts are free to live with their families, may attend religious services outside of working hours and can get married without restriction or prior authorisation. Some may get annual leave, but others have none. "

408. The Commission goes on to note, however, that freedom of movement of those in civil service is restricted. Having noted at [1446], that conscripts in the army are frequently subjected to punishment in connection with the labour exacted from them that amounts to torture, the Commission observes at [1447] that: "Unlike those in the army, conscripts in civil service are usually not subjected to harsh punishment in the course of their work. When they leave work without authorisation, they are treated differently from conscripts in the army. .."

409. What the Commission appears to rely on for including even civilian national service within its categorisation of the Eritrean system of military/national service as amounting to slavery is the lack of freedom of choice. Thus the Commission observes at [2010] of its 2016 Report that:

"As noted above, the Commission has heard evidence that some conscripts are assigned to work in non-manual labour in government ministries, schools, hospitals and in the judiciary, but that even these conscripts have no freedom of choice".

410. There is then a reference back to [90] where it is noted that "[t]he working conditions for this set of conscripts, particularly for those working in Asmara, appear to be more favourable but that “these conscripts have no freedom of choice." However, we are not aware that lack of freedom of choice (even when coupled with features such as restricted freedom of movement, occasional disproportionate punishment for absenteeism etc), is sufficient to constitute the crime of enslavement or (more pertinent for our purposes) a violation of the Article 4(1) prohibition against slavery.

411. Nor in relation to these indicia, does the Commission’s own description regard them as applicable either at all or to the same extent in respect of the people’s militia.

412. Even applying the international criminal law framework, the Commission appears to make an unjustified leap from the identification of instances where the ten indicia apply to the conclusion in [234] that "… there are reasonable grounds to believe that Eritrean officials have committed the crime of enslavement, a crime against humanity, in a persistent, widespread and systematic manner since no later than 2002." What is missing from the Commission’s analysis is any concrete basis for considering that the scale of the violations of each of these indicia is such that, quantitatively and qualitatively, it can be said to cross the threshold of "widespread and systematic". (In this regard, the Commission’s decision in its 2016 Report not to probe the evidence of any of the respondents who sent responses to their first report as to what light, if any, it might shed on the scale and frequency of such violations, does not assist). We remind ourselves, that by operation of Article 7(1) of the Rome Statute this threshold is a necessary condition for there to arise a "crime against humanity" ("For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"). We also see a difficulty with the Commission’s reasoning for classifying conscripts generically as civilians, but do not consider it necessary to develop this point here.

413. We note further that the case that national service is slavery is not supported by the evidence of PK. His evidence was that some even do it voluntarily. The clear thrust of his evidence was that what is problematic about national service is that it is open-ended and badly paid.

414. We consider that very similar difficulties apply when one turns to consider whether, even if not slavery, the Eritrean system of military/national service amounts to "servitude" contrary to Article 4(1).

415. Having set out our main conclusions on Article 4(1), we turn briefly to consider what difference would be made to them by applying a "flagrant breach" or a "breach" test. Here we would simply observe that we are quite satisfied that the Eritrean system does not pose a "real risk" of a violation of Article 4(1) and a fortiori it could not constitute a real risk of a "flagrant denial" of this provision.

Forced or compulsory labour: our assessment

416. That leaves the issue of whether the system amounts to "forced or compulsory labour".

417. In this context and in light of the legal framework summarised earlier, it seems to us that the evidence we have before us is on a different footing. For one thing we have the ILO analysis and (unlike the international criminal law framework) the ECtHR has seen the ILO framework to have a bearing on interpretation of Article 4 (see above [399]). For another, the ILO analysis, taken together with other sources, constitutes a considerable body of very specific evidence tending to show that the workings of the Eritrean system cannot be seen to fall under any of the exclusions set out in Article 4(3). That is important because in the course of various ILO proceedings the Eritrean government has not disputed that their military/national service system amounts to forced or compulsory labour. Their argument is directed only to their system falling under one or more of the permitted exemptions or exclusions.

418. We take first the exclusion of "any service of a military character" (Article 4(3)(b)).

419. Paragraph 3(b) of the Article excludes from the ambit of the term "forced or compulsory labour", as used in paragraph (2), "any service of a military character". There are at least two respects in which the Eritrean system of military/national service falls outwith this exclusion. First of all, its legislative framework, Article 5 of the 1995 decree in particular, identifies one of the objectives of military service as "to develop and enforce the economy of the national by investing in development work …." The legislative framework thereby endorses the use of compulsory labour for purposes of economic development. Second, there is overwhelming evidence that in its actual practice the Eritrean state uses conscript labour for services of a non-military character. The 2015 UNCOI Report documents the use of conscript labour in construction projects and in support of private enterprise, in agriculture, in the civil service and in the judiciary ([1399]-[1479]). In any event we do not understand the arguments of the Eritrean representatives before the ILO to dispute the use of conscript labour in the context of a wide range of public works, although they do dispute (unconvincingly in our view) its use for private enterprise.

420. As regards assignment to civilian national service, it seems to us that, notwithstanding that its conditions are not generally oppressive, that is not a necessary condition for forced labour. Here the UNCOI argument concerning lack of freedom of choice (which we rejected in relation to the slavery/servitude argument) has in our judgement a proper place, since the effect is that those forced to undertake such work are prevented often for lengthy periods from pursuing their own occupations and professions, save for some access to small family-based businesses. According to the Council of Europe/ECtHR study, it is not necessary for forced labour to exist that the condition being experienced be permanent or unlikely to change (para 17).

421. We have not found it easy to decide the issue of whether it is correct to conclude that the Eritrean system of military/national service as a whole constitutes forced labour, given that civilian national service does not ordinarily result in significant punishments and can sometimes amount to little more than attending an office in normal working hours and in the case of older women is sometimes said to be undertaken voluntarily. On balance we consider that the breach is a generic one for several reasons. First, the Eritrean government representatives before the ILO have not sought to argue that civilian national service is other than forced labour (although they dispute whether it falls within permitted exceptions). Second, ILO organs have seen it as generic. Third, even though we are unable to accept the findings of the 2016 UNCOI Report that the Eritrean system constitutes enslavement and servitude, it does particularise aspects that have a strong bearing on the issue of forced labour. Thus the 2015 UNCOI Report notes at [1426] that;

"The length and conditions of work for conscripts, including wages, working hours, place of assignment, leave time and rest days do not per se constitute elements of forced labour. But the open ended nature of national service and the often harsh working and living conditions of conscripts subjected to forced labour have a significant impact on the enjoyment of some rights including safe and healthy working conditions, the right to security, integrity of the person, and the highest attainable standard of physical and mental health".

422. In the same report at [1519] it is stated that the "Government has unlawfully and consistently been using conscripts and other members of the population, including members of the militia, many beyond retirement age, as forced labourers to construct infrastructure and to pursue the aim of economic development and self-sufficiency of the State, thus indirectly government that has been in power for the past 24 years". Fourth, even if not performed in oppressive conditions, civilian national service (like service in the people’s militia) nevertheless falls within the description of work "exacted … under the menace of any penalty" and also performed against the will of the person concerned, that is work for which he "has not offered himself voluntarily" (Van Der Mussele, para 34). The fact that some older women undertake it voluntarily, because it pays them something, does not seem to us to be enough to alter its underlying character as forced labour. We would also observe that the Home Office CIGs on National Service appears to acknowledge that there may well be a real issue as regards forced labour in the context of Eritrean national service. At 2.3.46 of the August 2016 version, for example, it is stated (with reference to non-civilian national service) that "[w]here a person is able to demonstrate that as a result of the open-ended nature of their national service they will face a flagrant denial of their right not to be required to perform 'forced labour', they will be entitled to a grant of discretionary leave …" (see also 3.1.10 and, as regards women, 11.3.3).

423. In relation to the exemption for "any work or service which forms part of normal civic obligations" (Article 4(3)(d)), we consider that the reasoning of the ILO organs applies with equal force in the context of Article 4 of the ECHR. We do not consider that the use of conscripts in civilian national service can escape the application of Article 4(3) on the basis that they form part of normal civic obligations. It is true that Strasbourg jurisprudence has seen this exclusion clause to include compulsory fire service in Baden-Wurttemberg (Karlheinz Schmidt v Germany judgment pp no. 13580/88, 18 July 1994, para 23); compulsory jury service such as exists in Malta (in Zarb Adami v Malta, Application no 17309/02, para 47); an obligation to conduct free medical examinations (Reitmayr v Austria; and the obligation to participate in the medical emergency services (Steindel v Germany). However, as the ILO organs have consistently noted, the range and extent of work conscripts in Eritrea are required to perform in civilian national service goes well beyond anything that can be described as the performance of "normal civic obligations", (emphasis added). The UNCOI Report of 2015 reinforces the findings of the ILO that national service is a way of controlling the population. Even though we consider discharge/release is granted more frequently than has been contended by the appellants and UNHCR, it remains that for those who have to perform such duties, the type of work a conscript is expected to do is again arbitrary and includes agricultural work, working in the mining industry and construction work. There is evidence of conscripts working for the private benefit of commanders and of the government lending conscripts to foreign companies (e.g. PK’s evidence, the EASO Report at 3.5 and the evidence relating to the mining industry).

424. As regards the exemption based on provision of emergency services (Article 4(3)(c)), we consider that the ILO organs are entirely right in their repeated conclusion that the Eritrean reliance over a lengthy period on this provision goes well beyond the restricted nature of this exemption. The 2015 UNCOI Report reinforces the ILO observations, noting at [1468] in respect of the people’s militia for example, that "[T]he Commission is not aware of any such situation of emergency in the last few years that would have justified the establishment of the People’s Army. In any case, by definition, such situations of emergency are limited in time and compulsory labour cannot be exacted beyond the critical and genuine phase of emergency."

425. We turn then to consider whether our findings regarding forced or compulsory labour would be any different depending on whether we applied a "real risk" or "flagrant denial" test. We are entirely satisfied that the open-ended duration of national service, coupled with the fact that its duration appears to be prolonged, gives rise to a real risk of a violation. There is a significant body of evidence showing that conscripts will be required to engage in work where the conditions amount to forced labour. There is strong evidence of conscripts working in the agricultural and construction industry in poor conditions. There is the Bisha mine evidence. There is strong evidence of poor conditions and mistreatment during military and some types of civic service. However, despite such evidence, we do not find that such conditions are sufficiently widespread for us to conclude that they amount to forced labour. Not all conscripts are working in conditions that would constitute forced labour. Nevertheless, for reasons given above, we consider that the lack of freedom of choice is sufficient to give rise to a breach. We also think that it amounts to a "flagrant breach" of the right to be protected against forced or compulsory labour, since in our views the Eritrean system effectively extinguishes that right.

426. In this regard we would emphasise again that that unlike qualified rights such as Articles 8 to 11, the ECtHR has not regarded the limitations set out in Article 4(3) as being intended to "limit" the exercise of the right guaranteed by paragraph 2. Taken together with the fact that there has been recognition of a strong factual overlap between Articles 3 and 4, (including in respect of forced or compulsory labour) we do not consider that there is a need to establish extinguishment of content beyond that set out in Article 4(2).

427. For similar reasons we also consider that to the extent that the Eritrean system of military/national service breaches Article 4(2) it is also likely to give rise to a violation of Article 3.

428. We would emphasise, however, that our findings above concern active national service only. If one is a reservist subject to recall, we do not find that the risk of recall is sufficiently likely to amount to a breach of Article 4 (see [297] – [307] above).

429. We conclude that the national service regime in Eritrea does not as a whole constitute enslavement or servitude contrary to Article 4(1) of the ECHR, but that it does constitute forced labour under Article 4(3) which is not of a type permitted under Article 4(3)(a)-(d). A real risk on return of having to perform military national service duties (including civilian national service but not with the people’s militia) is likely to constitute a flagrant or a mere breach of Article 4(3) as well as a breach of Article 3 of the ECHR.

430. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion. In so concluding we take into account that the Home Office CIG: Eritrea: National (incl. Military) Service, Version 3.0, August 2016 at 2.2.6 considers that given the Eritrean regime’s economic realpolitik and the widespread emigration "it is unlikely that avoiding national service, by itself, is now perceived to be a political act by the government" (see also 2.2.3 and 3.1.3), but note that the same document cites the May 2015 EASO Report as stating that "[d]ue to the political and ideological nature of national service, most sources claim that desertion or draft evasion may be regarded by the authorities as an expression of political opposition or treason". Additionally, in this CIG’s Country Information section addressing this topic, only one source interviewed by the UK FFM (a UN staff member) is cited in support of the proposition set out at 2.2.6 and (as UNHCR correctly pointed out in her submissions regarding this CIG) this UN official does not directly answer the question of whether deserters are treated as traitors by the government. We do not consider the recent evidence to demonstrate that the Eritrean regime has ceased viewing national service in political and ideological terms. The fact (noted in the AI "Just Deserters" Report) that the Wall Street Journal, whose correspondent was permitted a media trip to Eritrea in September 2015, reported that the Eritrean government had rejected a $222.7 million plan from the EU to facilitate the demobilisation of long serving conscripts because "it would violate the principle that no one is exempt from patriotic duties", only reinforces us in this view.

Conclusions

431. Our conclusions may be stated thus:

Legal

"Country guidance" is an established term denoting judicial guidance and adoption by the Home Office of terminology apt to confuse this important fact is to be deprecated.

Country guidance

1. Although reconfirming parts of the country guidance given in MA and MO, this case replaces that with the following:

2. The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service.

3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men.

4. The categories of lawful exit have not significantly changed since MO and are likely to be as follows:

(i) Men aged over 54

(ii) Women aged over 47

(iii) Children aged under five (with some scope for adolescents in family reunification cases

(iv) People exempt from national service on medical grounds

(v) People travelling abroad for medical treatment

(vi) People travelling abroad for studies or for a conference

(vii) Business and sportsmen

(viii) Former freedom fighters (Tegadelti) and their family members

(ix) Authority representatives in leading positions and their family members

5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health, history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.

6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return.

7. Notwithstanding that the round-ups of suspected evaders (giffas), the "shoot to kill" policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.

(i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.

(ii) Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii).

(iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they left illegally and will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.

8. Notwithstanding that many Eritreans are effectively reservists having been discharged/released from national service and unlikely to face recall, it remains unlikely that they will have received or be able to receive official confirmation of completion of national service. Thus it remains the case, as in MO, that "(iv) The general position adopted in MA, that a person of or approaching draft age … and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions …" A person liable to perform service in the people’s militia and who is assessed to have left Eritrea illegally, it not likely on return to face a real risk of persecution or serious harm.

9. Accordingly, a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm. While likely to be a rare case, it is possible that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.

10. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion. [...]

459. For the above reasons we conclude:

The First-tier Tribunal in the cases of MST, MYK and AA materially erred in law and their decisions have been set aside.

The decisions we re-make are to dismiss the appeals of MST and MYK but to allow the appeal of AA. [...]