Villains' Tally

Number of cases reviewed: 22
Number of Villains: 6

Tuesday, September 23, 2014

MA (Eritrea) v Secretary of State for the Home Department: The Case of the Draft Dodger


MA (Eritrea) v Secretary of State for the Home Department
[2004] UKIAT 00098
Immigration Appeal Tribunal
4 May 2004 

Brief Summary:

The Applicant, from Eritrea, sought asylum for failing to complete military service and escaping to the UK.  The Adjudicator held that because she had merely failed to complete military service, she would, at most be subjected to 3 years in prison, which did not violate Article 3 (right to life) of the European Convention on Human Rights.  On Appeal, the Tribunal held that the Applicant could also be considered a draft evader and, as such, could be subjected to imprisonment in unsanitary conditions and without adequate medical treatment.  The Applicant might also be subjected to torture.  Because of this possibility, the appeal was allowed under Article 3.

The Facts:
The Appellant, who was born on 12th March 1985 and is now nineteen, is a citizen of Eritrea. The Secretary of State refused her claim for asylum and gave directions for her removal on 7th August 2002.   The Appellant claimed to have left Eritrea in September 2001 when she was required, as a sixteen year old, to report for her compulsory military training. She feared that she would be made to fight, to complete her military service and claimed also to be in fear because she had left Eritrea illegally. At her appeal, she also alleged that military service was against her religious beliefs as a Muslim, a claim which the Adjudicator rejected as not credible. The Adjudicator also rejected her claim to have been persecuted on account of her father's involvement with the ELF; he had been killed when she was three.

The Adjudicator also rejected her claim that she had received her call-up papers when she was sixteen; children were not called up now that there was a peace agreement between Eritrea and Ethiopia. However, she said that the Appellant was now over eighteen and on her return to Eritrea would be required to complete her military training. 
Available reports referred to the use of torture and beatings of prisoners and to the severe mistreatment of deserters and draft evaders; this included tying and prolonged sun exposure in high temperatures. A report also referred to 220 Eritreans who had been deported from Malta in late 2002 and who were believed to have fled Eritrea to avoid military service. They were detained upon arrival and held in secret locations, incommunicado and without charge. There were reports that some had tried to escape and had been killed. The Appellant argued that she would be seen as a draft evader and could be exposed  to these conditions.  

After rejecting the claim that the Appellant was a conscientious objector or that the fact that she would have to do military service itself amounted to a Convention reason for persecution, the Adjudicator said that the Appellant would be treated as someone who had failed to complete military service, not a draft evader.  The Adjudicator believed that the Appellant would only be subjected to  a three-year prison term for failure to complete military service, which was not contrary to Article 3 of the ECHR.  The Applicant appealed.

The Holding: 
According to the Tribunal, draft evaders, particularly those returned from Malta, appeared to be held incommunicado, without charge or visits in poor conditions. Although the UN High Commissioner for Refugees Report refers to “ dwellings ” where they are detained, the conditions which are described include forced labour, beatings, torture, and a lack of medical care, food or sanitation leading to disease and in some cases death. According to the Tribunal, those conditions were quite likely to involve a breach of Article 3 and the Applicant's human rights appeal was allowed.

Villain?          
A 19-year-old draft evader who was likely to be subjected to torture?  There was no evidence of criminal activity or associations with terrorists in the UK.  Not a villain.