Introduction

The UK delegation from the Foreign and Common Wealth Office and the Home Office visited Asmara on 9-11 December 2014. In March 2015, the Home Office issued two documents, namely, Country Information and Guidance Eritrea: National (incl. Military) Service and Country Information and Guidance Eritrea: Illegal Exit. This Note draws attention to the serious flaws contained in the Guidelines and the source material used to reach the conclusions.

The UK has been one of several European countries that have been receiving and granting refugee status to many Eritreans who either fled the country to avoid conscription or to flee from the open-ended Eritrean National Service (ENS). The single most important reason the UK has been at the forefront of providing refuge and succour for Eritrean asylum-seekers is because it accepted the UNHCR’s and other reputable human rights organisations’ reports describing the indefinite ENS as constituting persecution. This was due to the ENS’ degeneration into modern form of slavery proscribed in international law and the inhumane and degrading treatments meted to conscripts as punishment for:

• overstaying permitted leave
• disobeying commanders
• attempting to escape from the ENS
• absconding to avoid conscription
• answering back to commanders, etc.

Many conscripts have sustained permanent injuries or died as a result of these punishments. These are amply documented by reputable human rights organisations, such as Amnesty International, Human Rights Watch, Freedom House, Reporters Without Borders, etc. The Country Guidance refers to and quotes from these reports extensively only to reach to conclusions that fundamentally contradict them.

The authors of the HO’s Guidance start by extensively quoting from the reports produced by Amnesty International, Human Rights Watch, US Department of State, etc. but instead of drawing conclusions based on the sources which they widely quote from, they instead use the Danish Immigration Service’s report—Eritrea—drivers and root causes of emigration, national service and the possibility of return (August and October 2014) to draw conclusions from, without taking into account that the report was deeply flawed and hence subjected to a series of severe criticisms.

The Danish report referred to in the Home Office’s Guidance as an “up-to-date information from inside Eritrea” was criticised fiercely by many organisations including UNHCR,[1] Amnesty International, Human Rights Watch, etc. for being baseless. For example, Leslie Lefkow, HRW deputy Africa director stated:

The Danish report seems more like a political effort to stem migration than an honest assessment of Eritrea’s human rights situation. Instead of speculating on potential Eritrean government reforms, host governments should wait to see whether pledges actually translate into changes on the ground.” (emphasis added).^[2]

Most Danish newspapers and other media condemned the report as being ill-thought-out, poorly documented and politically motivated. In response, the Danish authorities admitted the report’s flaws.  For example, The Local, wrote:

The Danish Immigration Service’s fact-finding report on Eritrea has been under heavy fire since its release and the agency now says that the feedback “raises doubts” and that Eritreans can expect to be “granted asylum in many cases” (emphasis in original). [3]

Despite the large number of people and organisations that have criticised the report.[4] the Home Office Team do not even mention these or the fact that as a result, of the criticisms against the report, the policy recommendations concerning desertion from the ENS and illegal exit which were the central thrust of the report were withdrawn by the Danish Immigration Service. Controversies surrounding the Danish report are such that even two out of the three officials who visited Eritrea to gather information for the report distanced themselves from it and as a result of their dissatisfaction over the methodology and how the information was used resigned their positions. It is therefore alarming to learn that the UK Home Office has decided to change its policy on Eritrean asylum-seekers who flee from the indefinite ENS based on a report whose validity was rejected even by the people who collected the information in Eritrea.

Regarding the bleak human rights situation in Eritrea, the UK Foreign and Common Wealth Office which ironically was part of the Home Office Mission that visited Eritrea, in its Corporate report—Eritrea Country of Concern issued on 21 January 2015 (i.e. two months before the Home Office issued its Country Information and Guidance in March 2015), states:[5]

The Eritrean government made no visible progress on key human rights concerns … continued to violate its international obligations and domestic law, including in the areas of arbitrary and inhumane detention, indefinite national service, and lack of religious freedom, freedom of the media and freedom of speech. The government continued to cite “no war, no peace” with Ethiopia as justification for its failure to implement the 1997 constitution, which provides for democratic government and fundamental rights and freedoms.

 It is dumfounding that the Home Office has based its conclusions on a report which has been discredited in the country where it was supposed to constitute the basis of policy change. Had the HO instead of relying on the discredited Danish report tried to consider insights from the far more accurate account of the British Embassy officials’ letter in Asmara (see annex to the Guidelines) and the report of the UK Foreign and Common Wealth Office, which was part of their mission, on the state of human rights in Eritrea, it would have reached more reliable and judicious conclusions that reflect the reality on the ground.

As far as we can judge from the contents of the Guidelines issued by the Home Office, no new material which could justify change of policy was collected by the Team during their visit to Eritrea except the questionable information provided by the president’s advisor, Yemane Gebreab, and the Minister of Foreign Affairs regarding the duration of the ENS.

The New UK Policy on Eritrean Asylum-Seekers

According to the new Guidelines:

• Ø  the Country Guidance case MO (illegal exit—risk on return) Eritrea CG [2011] UKUT 190 (IAC) (27 May 2011 issued by the UK Upper Tribunal Immigration and Asylum Chamber[6] which hitherto provided guidance to decision-makers is obsolete and is superseded by “The most up-to-date information available from inside Eritrea—notably the Danish Immigration Service 2014 Fact-Finding Mission Report (‘the Danish FFM Report’).[7]
• the open-ended ENS no longer constitutes persecution or degrading or inhuman treatment hence people who flee to seek protection will not be granted refugee status in the UK
• the open-ended ENS does not constitute forced labour
• The ENS is not indefinite—it is between 18 months and four years
• conscripts or draft evaders who exit illegally either to avoid conscription or to desert from the ENS will not be granted refugee status
• Eritreans who exit illegally to avoid conscription or to flee from national service face no risk of persecution upon return provided they make good the 2% diaspora tax and sign a repentance form
• Those who refuse to undertake or abscond from military/national service are not viewed as traitors or political opponents and as a result it is unlikely that such persons would be detained upon return
• The most likely outcome for evasion or desertion is the requirement to return to military/national service
• Only those who have been politically active in their opposition to the Eritrean government and are readily identifiable (high profile cases) are likely to be at risk

These new policies represent 100% reversal of previous UK court’s decisions and policies based on the two most prominent Country Guidance based on Asylum and Immigration Tribunal decisions, namely, MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059[8] and Country Guidance case MO (illegal exit—risk on return) Eritrea CG [2011] UKUT 190 (IAC) (27 May 2011) in which I was the key expert witness.

The Home Office do not deny that conditions in the Eritrean National Service (ENS) are harsh (p. 8) and make adequate references to reports that make such assertions. In spite of the diverse sources referred to in the Guidelines, the HO goes on to state that many Eritreans “complete military service without suffering mistreatment. As a result, those required to perform military service are unlikely to be at real risk of inhuman and degrading treatment but may be at such risk depending on their individual facts and specific circumstances” p. 8

There are many questions one can raise in connection to such an assertion. How do the HO know that those who “complete” the ENS had not been subjected to inhuman treatment when all the available evidence shows this to be the case? As the letter from the British Embassy in Asmara sent to the Home Office shows, there are no conscripts who complete national service and therefore, the HO’s claim that those who complete the ENS have not been subjected to inhuman treatment is not evidence based. For example, when the HO asked the British Embassy in Asmara:

“Are individuals who have completed military/national service issued completion certificate? If so, who has the authority to issue them?”

The officials at the British Embassy wrote :

There is no such a thing as a “completion of National/Military Service Certificate.” In the absence of such documents, a person’s age gives an indication regarding whether they should be in military/national/service—under 57 for men, or under 47 for women who are unmarried. [9]

Since there are no male nationals who complete national service before they reach 57 (men) and single women 47, the HO’s assertion is not backed by evidence. There is no evidence in the Guidelines to show that the team during its visit interviewed Eritreans who completed national service without suffering inhuman treatment. The Home Office does not seem to consider serving in the Eritrean National Service without remuneration indefinitely does not constitute “inhuman treatment.” This contradicts in a fundamental manner its previous position and the positions of the UNHCR, Amnesty International, Human Rights Watch, Journalists without Borders, etc.

What we find incredible about the Home Office’s Guidelines is that the standard of proof underpinning the Guidelines is very low as compared to the extremely high standard of proof employed by their adjudicators to discredit accounts of Eritrean asylum-seekers. If the Home Office were to use such a low standard of credibility, practically all asylum-seekers would have been granted refugee status in the UK.

The Guidelines conclude in their Policy Summary, “National service is generally between 18 months and four years” (p. 9). There is no evidence whatsoever that backs this assertion. The indefinite nature of the ENS has not changed in practice or at a policy level.  It is further stated in terms of whether the indefinite ENS constitutes “a form of slave labour, the most up-to-date information available from inside Eritrea suggests, in general” the ENS “lasts around four years” (6). The so-called “up-to-date information from inside Eritrea” is the discredited report of the Danish Immigration Service. Not surprisingly, this phrase is repeatedly used in the Danish report.

The Guidelines contain lots of inconsistent and contradictory information with regard to the duration of the ENS. On the one hand, it is stated that the UK mission were informed by the Eritrean Foreign Ministry that the issue was “being discussed in the government but no specific information about whether or when it would undergo change was provided.” It is further stated, “the Eritrean government and the EU and the embassies of the European countries are in an on going and constructive dialogue” (17).

Notwithstanding the fact that the team had been informed that no decision had been reached with regard to the duration of the ENS, the president’s advisor  told them that the ENs is now limited to 18 months. The Guidelines state: “The Eritrean President’s Adviser Yemane Gebreab, told them that:

 “from November 2014 national service is reverting to a duration of 18 months. This will now all be based in military …This has started with the 27^th round and people have been informed we have had meetings with students  and families at Sawa. We do not want to publicise this by a presidential announcement—this is not how we wish to do things.”

It is surprising that the HO took his statement for granted when they were already told that no decision had been reached on the matter. Information obtained from Eritrea, including from the Sawa military camp indicate that no such information was disseminated to students or conscripts. Conscription is continuing as before. The 28^th cohorts began their service at Sawa in August 2014 and those who did not pass their matriculation were assigned to the army and other ministries or departments, including the firms of the ruling party, the PFDJ.

If the government does not want to announce the “dramatic change” by presidential announcement, why have they not posted the information in their tens of media outlets? The only official to ever state the alleged change of policy regarding the duration of the ENS, was a junior member of staff at the Washington office of the Eritrean Embassy. If the Eritrean authorities had changed the duration of the ENS which like a cancerous growth has been devastating the Eritrean polity, the announcement would have been accompanied with massive accolade.

Additionally neither the Home Office nor Eritrean officials say anything about the hundreds of thousands who joined the ENS before November 2014, i.e. cohorts 1-26.

Finally the HO without any evidence concludes, “Evaders and deserters are unlikely to be considered traitors” (p. 9).  It is further stated, “The most up-to-date information available from inside Eritrea suggests that those who refuse to undertake or abscond from military/national service are not viewed as traitors or political opponents. It is unlikely that a person would be detained/imprisoned on return as a result” (p. 7). This assertion is a verbatim copy from the discredited Danish report.

The indefinite ENS and the severe punishment regime have been driving tens of thousands of Eritreans to flee in search of international protection. Their number in the EU member states has been increasing dramatically in recent months. These rising numbers have sent shock waves through some EU member states. It seems that the sole purpose of the Home Office Guidelines is to stem this flow disregarding the consequences on those who desperately need protection against persecution—forced labour—accompanied with severe punishment regimes. Much of the conclusions of the Guidance are drawn from a deeply flawed source that has been discredited by those who worked on it and by many who are familiar with the situation in Eritrea. It is disturbing that the UK Home Office is resorting to such unsafe practices that jeopardise the lives of many asylum seekers and the UK’s obligations to them under the refugee convention and EU and UN treaties.

Prof. Gaim Kibreab
London South Bank University