UK Home Office Guidance on Eritrea: an instrument to refuse protection?

This is a guest post by Sara Palacios Arapiles,  who has a background in law and currently works at the Nottingham Rainbow Project, providing advocacy and support to people seeking sanctuary.

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On 8 and 9 December 2014 the UK Home Office, in a joint official mission with a UK delegation from the Foreign and Commonwealth Office, visited Asmara (the capital of Eritrea) with the aim to discuss the causes of migration with the Eritrean government. Then, in March 2015, the Home Office issued two official country Guidance reports, namely, Eritrea: National (incl. Military) Service, and Eritrea: Illegal Exit which claim that there are signs of improvement inside the country for potential returnees.

In direct contradiction to the Home Office findings, the Foreign Office, after the joint visit, reported that the Eritrean government made no visible progress both on ‘key human rights concerns’ and ‘regarding the indefinite nature of the ENS [Eritrean National Service].’  One of the members of the Foreign Office highlighted “the impossibility of collecting evidence from inside Eritrea due to the lack of proper access to the country.”

Similarly to the findings of the Foreign Office, the report produced by the UN Commission on Enquiry on Human Rights in Eritrea in June 2015 and recent evidence gathered by the author through interviews with Eritreans (see my legal report and my guest post on Right to Remain’s legal blog: ‘The reality of risk in Eritrea: ‘Everybody is scared to talk … but I am tired of being silent’) attest there is no evidence pointing to signs of improvement on human rights concerns in Eritrea.

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Supporting this conclusion, Human Rights Watch indicated in July 2015 that “there has been no change in the pattern of serious abuses in Eritrea”.

Gaim Kibreab, an Eritrea expert at London’s South Bank University, recently declared that “[the] Eritrean government made no visible progress on key human rights concerns.”

Dr. Samuel Ayele Bekalo, a freelance advisor and consultant on Horn of Africa affairs, said earlier this year that “there has been no concrete and convincing evidence of any forms of improvement in Eritrea”.

Change of policy on Eritrean asylum claims

The new Guidance on Eritrea published by the Home Office in March 2015 overturns the February 2014 Guidance Note on Eritrea, which considered national service in Eritrea as forced labour and evaders and deserters from military service as political opponents at risk of persecution if forcibly returned.

According to the March 2015 Guidance from the Home Office, national service no longer constitutes persecution or degrading or inhuman treatment and Eritreans who have illegally left the country are no longer ‘automatically’ at risk of persecution on return. Only those who are ‘politically active in their opposition to the Eritrean government’ as well as Eritrean conscientious objectors, who are not able to perform military service on account of their religious beliefs, are considered to be at risk of mistreatment upon return.

The Guidance concludes:

  • Eritrean National Service is not indefinite.  The Guidance inserts a quotation of the Danish Report, (a discredited report which the Danish Immigration Service no longer uses, see below) which argues that “military/national service lasts for around four years.” The Home Office also cites some unofficial statements made by the Eritrean President’s Adviser Yemane Gebreab and the Eritrean Foreign Minister Osman Saleh, who ‘promised’ that from November 2014, National Service was to be subject to an 18 month limit.
  • National service is no longer regarded as forced labour.  Again the Home Office Guidance cites a quotation from the Danish Report, which alleges that conscripts “are not overworked or working under slave-like conditions…” In this sense, the Guidance concludes that the requirement to undergo compulsory national or military service does not itself amount to persecution.
  • Conscripts are unlikely to be at real risk of inhuman and degrading treatment.  To support this assertion, the Guidance refers to yet another quote from the Danish Report, which states that “[the] information in human rights reports about ill-treatment whilst in national/military service is more often than not exaggerated … [Conscripts] are not beaten, subjected to torture ….”, “During the national service Eritreans do not suffer from malnutrition.”
  • Deserters and evaders are no longer considered to be necessarily at risk of persecution upon return.  In support of this, the Home Office’s Guidance quotes the Danish Report on 18 occasions to argue that evaders are not imprisoned for long periods of time and they are not exposed to physical harm.  The Guidance affirms that those who left Eritrea illegally are not at risk of harm provided that they have paid the 2% income tax – Diaspora tax – and have signed a ‘letter of apology’- at an Eritrean embassy. By referring to the Danish Report, it also claims that reprisals by Eritrean authorities against relatives of evaders are no longer taking place.

These conclusions are strongly contradicted by recent testimony from refugees who have fled Eritrea.  See my guest post on Right to Remain’s legal blog: ‘The reality of risk in Eritrea: ‘Everybody is scared to talk … but I am tired of being silent’.

Sources used by the Home Office to justify change of policy on Eritrea

Danish Immigration Service (DIS) Fact Finding Mission Report on Eritrea

The Home Office’s Guidance on Eritrea deems the Danish Report to be the ‘most up-to-date’ source of information available from inside Eritrea, and refers to it on 48 occasions. This clearly contrasts with the fact that the Danish Report is no longer used by the Danish authorities as the sources used to draft it raised doubts, according to the last announcement made by the Danish Immigration Service (DIS.)

The Danish Report has been largely criticised in terms of its methodology. Human Rights Watch pointed that

the authors of the Danish Report did not interview a single victim or witness of human rights violations in Eritrea, including deported failed asylum seekers.

The Danish Report is merely based on anonymous testimonies, referred to as ‘Western Embassies,’ ‘International organisations,’ and ‘Regional NGO,’ whose quotations have also been incorporated within the Home Office Guidance. These ‘Western Embassies’ have limited access and ability to speak freely to people in Eritrea, which limits the extent of their knowledge of the situation on the ground.  The UN Refugee Agency (UNHCR) claimed that

no information is provided in the report about the regulatory framework for the media, NGOs, research institutes and other actors in Eritrea.

Gaim Kibreab, an Eritrea expert at London’s South Bank University who was the only source mentioned by name, argued that his quotes were “selectively and misleadingly used with the sole intention of backing up the report’s point of view”.

Three officers from the Danish immigration mission to Eritrea resigned after having denounced the methodology and content of the report on Eritrea.  According to Danish media, they were bribed to change it.

The Independent Advisory Group on Country Information (IAGCI) asserted that “the findings of the Danish Report ‘should not be taken as undisputable facts relating to the current situation in Eritrea.’

Unofficial statements made by Eritrean authorities

The Home Office Guidance refers to an unofficial statement made by the Eritrean President’s Advisor, Yemane Gebreab, to the UK delegation in its visit to Asmara in December 2014. Mr Gebreab informed the delegation that:

People in Eritrea had been notified that ‘from November 2014 national service is reverting to a period of 18 months […].’ The government did not want to make such information public ‘by a presidential announcement’, and therefore the announcement was done through unofficial meetings with students and families at Sawa.

However, according to other sources obtained from inside the country, including from Sawa, “no such information was disseminated to students or conscripts.”

The Guidance also refers to a private meeting with the Eritrean Foreign Minister Osman Saleh, who confirmed that meetings had been held at Eritrean governorates in order to inform the population that national service was to be limited to 18 months.  However, the Home Office contradicts itself and adds that “[…] no specific information about whether or when it would undergo change was provided.”

In response to such assertions from the Eritrean Government, Gaim Kibreab claimed that “there is no evidence whatsoever to make us think that the duration of ENS [national service] has changed in recent times”.

Human Rights Watch, in a recent letter addressed to UK Independent Chief Inspector of Borders and Immigration, stated:

There is no evidence that these commitments have been implemented or translated in actual changes on the ground for Eritrean national service conscripts.

As far as it is known, the UK delegation did not take further steps to corroborate the credibility of such statements. During the visit of UK Home Office officials to Eritrea, there are no records of any interviews with victims or witnesses of human rights violations; nor any appropriate evaluation of the country, such as access to detention centres.

Why the change of policy on Eritrea?

The change of policy on Eritrean asylum cases came after the increase in the number of Eritreans arriving in the UK. According to Home Office statistics, the number of Eritreans who claimed asylum in the UK in the three month period between January and the end of March 2015 has tripled since the same period in 2014.

The change of policy seems to be based on the large number of people that the UK would be bound to host under international law, rather than on the factual situation which forces those people to flee and to put their lives at risk.

The Home Office Guidance thus appears to be an attempt to limit the numbers of Eritrean asylum-seekers in the UK:

Dr. Samuel Ayele Bekalo, a freelance advisor and consultant on Horn of Africa affairs, considers the new UK Guidance to be ‘clearly more influenced by the recent political pressures related to migration than by the reality on the ground.’

Leslie Lefkow, deputy director for Human Rights Watch Africa, saw the Danish report to be more of a ‘political effort to stop migration than an honest assessment of Eritrea’s human rights situation.’

In March 2015, the European Commission announced a new development aid package of €312 million to Eritrea – three times the amount that was granted in previous years. The EU must ensure that the funds are properly allocated in order to support the people in Eritrea. However, Andebrhan Welde Giorgis, former ambassador of Eritrea, argues that:

the money ends up in private banks in Qatar and China; in fact, the population has not seen any improvement whatsoever in their life conditions.

Recent reports suggest that the new aid package “would be provided in exchange for promises that Eritrea would curb migration.”

The EU External Action Service announced in March 2015 that it maintains a dialogue with the Eritrean government as a first priority to improve the living conditions in the country.  The Danish and Home Office reports refer to an ‘ongoing and constructive dialogue’ between the Eritrean government and the EU, as well as the embassies of the European countries. Questions as to how the dialogue can be effectively maintained with an oppressive government, or how to rely on a dictatorial regime, were raised at the meeting of the European Parliament Subcommittee on human rights in March 2015.  Similarly, the UN Commission of Enquiry emphasized “the centrality of human rights when initiating dialogue and cooperation with the Eritrean government.”

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Implication of the new Home Office Guidance on Eritrea

Home Office’s refusal of Eritrean asylum claims

The two new country guidance reports from the Home Office – Eritrea: National (incl. Military) Service, and Eritrea: Illegal Exit – are used by Home Office decision-makers to determine the legitimacy of Eritrean asylum applications, and by legal aid providers. Ever since the Home Office issued its new Guidance, many Eritreans’ claims have been refused.

The refusal rate for Eritrean asylum claims has risen from 13% in 2014 to 23% so far this year.   Between April and June this year, just 34% of decisions on Eritrean asylum claims were grants of protection, compared to 73% in the first quarter of 2015.

Many Home Office refusal decisions deny asylum on the ground that the concerned asylum-seeker has not established a well-founded fear of persecution. Many others also deny humanitarian protection, due to the perceived lack of a real risk of suffering serious harm upon return.

The process of being under a ‘marginal status’ – whereby asylum-seekers are deprived of many rights, such as paid employment or welfare benefits – is prolonged until the appeal process against the Home Office refusal decision culminates (the latest statistics show that 63% of Eritrean asylum refusals have been overturned on appeal).  Furthermore, due to cuts to legal aid, many applicants would be denied the opportunity to pursue their claim for asylum, by appealing Home Office’s decisions or by applying for judicial review.  Eritrean asylum-seekers whose claims are refused and who do not manage to win on appeal are at risk of forced removal to Eritrea, putting them in grave danger.

According to the Home Office Guidance, those who left Eritrea illegally are not at risk of harm provided that they have paid the 2% income tax (Diaspora tax) and have signed a ‘letter of apology’ – the so-called ‘Immigration and Citizenship Services Request Form’ – at an Eritrean embassy.

This ‘letter of apology’ consists of a statement of ‘regret [for] having committed an offence by not completing the national service’ and the acceptance ‘of appropriate punishment in due course’ upon return. Bearing in mind the widespread use of punishments by the Eritrean government, that have been shown to be in violation of both international criminal and human rights law (see my full report and my guest blog post on Right to Remain’s legal blog) this could be seen as requiring Eritreans to sign their own ‘death sentence’.

UK Home Office Guidance seen as ‘objective evidence’ by Israel

Israeli authorities have argued that Africans, including Eritreans, are not refugees but economic migrants.  The Center for Israeli Immigration Policy started to quote the new UK Home Office Guidance on Eritrea as ‘objective evidence,’ saying there is no substantial hindrance to human rights in Eritrea.

The Israeli government has impeded a vast majority of Eritreans to access to the asylum system.  The Association for Civil Rights in Israel reports that:

only four Eritreans who had additional grounds for asylum other than evasion or desertion from national service have been granted refugee status so far.

Israel has implemented a new policy which implies that Eritreans who either did not apply for asylum or whose asylum claims were rejected are offered either to leave to Uganda or Rwanda or to be imprisoned at the Saharonim prison or at the Holot facility.  This policy deprives refugees of any choice other than to accept forcible deportation to these countries.

Yonatan Yaakobovich of the Center for Israeli Immigration Policy said that “the [UK Home Office] Guidance confirms what has been known for a long time – that the Eritrean deserters do not face danger.”

It seems that Israel uses the Home Office’s new Guidance to justify its policy to return Eritrean refugees to third countries where their safety – as extensively reported by the Hotline for Refugees and Migrants – is not guaranteed.

Recommendations

The guidance issued by the Home Office, along with related policies – which are mainly based on the compromised sources above explained – should be immediately withdrawn and replaced according to the new findings of the UN Commission of Enquiry’s June 2015 Report.

Moreover, the countries that receive Eritrean asylum-seekers must respect the international principle of non-refoulement. Even though the UK fails to consider that Eritreans have a well-founded fear of persecution upon return for reasons such as their political opinion – as defined in the Refugee Convention – it is still bound to provide asylum-seekers with humanitarian protection. Many of the circumstances that Eritreans face in the country amount to torture or inhuman or degrading treatment, including the ENS [national service] itself. This would entitle most Eritreans to international protection.

Tackling the situation in Eritrea is the only way of preventing more Eritreans to live a life of mistreatment and indignity in their own country. However, since that currently does not seem to be possible by starting to work from the inside, due to the deliberate closed nature of the Eritrean regime, following the recommendations of the UK House of Commons, the international community must offer international protection to Eritrean asylum-seekers.

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