{.-rift-inirii*"0. Barnes Harrild & Dyer. 1. The active review procedure relates to applicants who have claimed asylum and have

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1 2l$ March 2013, To whom it may Barnes Harrild & Dyer SOLICITORS 76 London Road, Croydon, Surrey CRO 2TB Telephone: Fax Croydon DX No: enquiries@bhdsolicitors.co.uk Web: Dear Sirs, RE: Eritrean Refugee cases We have been instructed to advise upon the following issues: In relation to Eritrean Refugees living in the UK, What is an active case review and what are the procedure involved? What are the implications to Eritrean Refugees residing in the UK, of participating in Eritrean government led activities and particularly taking active roles in seminars and initiatives organised by government oflicials? Ouestion I In relation to Eritrean Refugees living in the UK, What is an active case revian, and what are the procedure involved 1. The active review procedure relates to applicants who have claimed asylum and have been granted refugee status or humanitarian protection, or who were refused asylum but granted an alternative form of status such as Discretionary Leave to Remain. Partners Michael Dyer Solicitor Paul Turner Chartered Legal Executive Muhammed Mozid Non-Lawyer Manager Pius Dakora Solicitor Authorised and regulated by the solicitors regulation authority SM No: Communitv Legal Serviie % {.-rift-inirii*"0

2 2. The purpose of an active review is for the Secretary of State 'sshd" to consider whether an applicant still qualifies for leave to remain. 3. An active review will be carried out when an applicant applies to renew his leave to remain, or when applying for permanent residence. 4. There are circumstances where an active review may be triggered before an application for an extension of leave or permanent residence is submitted. These are: a. A failure to apply for an extension of leave, b. There being a significant and non-temporary change in the conditions in F;irtrea, so that the applicant may no longer qualifies for refugee status c. An applicant does something that may result in him no longer qualifying for refugee status, such as returning to live in Eritrea, d. The United Kingdom Border Agency 'ukba' discovering that an applicant has deceived the 'ukba' in order to be recognised as a refugee e. The 'ukba' discover that an applicant committed certain serious crimes before applying for asylum; or f. The 'ukba' having reason to believe that an applicant is a danger to the security of the United Kingdom, or g. For being convicted of a particularly serious crime. 5. Paragraph 339BA of the Immigration Rules places an obligation upon the 'sshd' to notify an applicant in writing if he is reconsidering an applicant's qualification as a refugee supported with reasons, and provide the applicant an opportunity to submit, in a personal interview or in a written statement, reasons as to why the status should not be revoked. We therefore strongly recommend that an applicant obtain legal representation if put on notice of an active review. 6. When the 'ukba' carry out an active review, a caseworker is required to conduct an indepth review of an applicant's circumstances and decide each case on its own particular circumstances. The caseworker will be entitled to consider any form of

3 evidence to carry out the active review to determine whether an applicant is still at risk of persecution in Eritrea. It is likely that the ITKBA will look for any evidence of improvements in the country conditions and its human rights record, any evidence of the applicant availing him or herself to the Eritrean Authorities or use of any deception in the previous asylum claim. The law relating to revocation or refusing to renew a grant of asylum is found at paragraph 339A of the Immigration Rules. This provides that asylum will be revoked or not renewed if the 'ukba' is satisfied that: 3394 (i) he has voluntarily re-availed himself of the protection of the country of nationalilt; (ii) having lost his nationality, he has voluntarily re-acquired it; or (iii) he has acquired a new nationality, and enjoys the protection of the country of his new nationality; (iv) he has voluntarily re-established himself in the country which he left or outside which he remained owing to afear of persecution; (v) he cdn no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to ovail himself of the protection of the countty of nationalilt; (vi) being a stateless person with no nationality, he is able, because the circumstances in connection with which he has been recognised a refugee have ceased to exist, to return to the country offormer habitual residence; (vii) he should hqve been or is excluded from being a refugee in accordance with regulation 7 of The Refugee or Person in Need of Intemational P r ot e c ti on (Qu a I ifi c at i on) Re gu I at i on s ,'

4 (viii) his misrepresentation or omission or facts, including tlte use of false documents, were decisive for the grant of asylum,' (ix) there are reqsonable grounds for regarding him as a danger to the security of the United Kingdom; or (x) having been convicted by a final judgment of a particularly serious crime he constitutes danger to the communilt of the United Kingdom. 8. Paragraph 3398 of the rules provides that when a person's grant of asylum is revoked or not renewed, any limited leave which they have may be curtailed By virtue of Section 82(1) of the Nationality, Immigration and Asylum Act2002, an applicant who is refused further leave, or has leave revoked will be entitled to appeal the decision to an Immigration Judge sitting independently from the 'ukba'. Rights of appeal can be limited in certain limited circumstances. If any appeal fails, then the applicant will be expected to leave the country, either voluntarily or by enforced removal. Ouestion 2 What ure the implicutions to Eritrean Refugees residing in the UK, of participuting in Eritreun government led activities and particularly taking active roles in seminars and initiutives orgunised by government officials? 9. As explained above the Secretary of State is entitled to investigate an applicant's grant of asylum and conduct an active review to determine whether an applicant has deceived the 'ukba' in order to be recognised as a refugee. Such an investigation may result as a consequence of the 'ukba' becoming aware of any support or conduct an applicant may be participatinginthat he may be perceived to be 'supportive' and be demonstrating 'loyalty' to the Eritrean Government.

5 10 For example, participating in Eritrean government led activities and particularly taking active roles in seminars andinitiatives organised by government officials could constitute demonstration of loyalty to the Eritrean Regime. l1 Demonstrating loyalty to the Eriftean Regime could provide the Secretary of State with reasonable grounds to justify an active review. Depending upon the extent of the perceived loyalty, the Secretary of State could have reasonable grounds to support the conclusion of an applicant being loyal to the regime, and therefore obtaining refugee status on a false basis, or in the alternative that the loyalty itself being post decision evidence of no longer being in fear of persecution. T2, There is support for this proposition within the dictum of the curent country guidance case of the Upper Tribunal in MO (illegal exit - risk on return) Eritrea CG [2011] ukur 001e0 (rac) 13. It was argued by MO that all failed asylum seekers being returned to Eritrea, as failed asylum seekers were at risk of persecution at the hands of the Eritrean Government, on the basis that the act of claiming asylum abroad was in itself an act of 'disloyalty'. The Tribunal were not willing to accept this submission, pointing to the fact that some failed asylum seekers on return will be able to demonstrate loyalty to the Eritrean Regime by other methods such as paytngthe 2Yo tax, and or attending pro government meetings. The Tribunal's reasoning on this is found at paragraph 130 of the determination 'Given the foregoing we consider that if a decision-maker is faced with an Eritrean asylum claimant whose evidence has been found wholly incredible (save in relation to sex -self-evidently- and possibly age, date of departure from Eritrea and health/, it cunnot be simply assumed thut such s person would be perceived on return to have committed an uct of dkloyalty merely by virtue of having claimed usylum in the UK. rjnlike the position when it comes to deciding whether a person has exited illegally (where we consider that the categories have reduced considerably and so it would be exceptional at leastfor a person of or approaching druft age to be considered to have left

6 luwfully) the position in respect of this issue is thut a very significant number of Eritreans are likely, on Professor Kibreub's evidence, to be uble to at least show they have been pro-government - e.g. by puying the 2% tax and/or uttending pro- government meetings' 14. We are therefore of the opinion that an Eritrean Refugee who is partaking in any activity that could be perceived to be acting loyal to the Eritrean Regime, may be at risk of being the subject of an active review and possible revocation of leave to remain. 15. Should anyerrtrean require legal advice and representation in their asylum case then please do not hesitate to contact us. We would take this opportunity to offer our assistance in re-arguing failed asylum claims by preparing fresh asylum claims and that any Eritrean National who applied for asylum prior to the 3'd March 2OO7 may have a good opportunity of obtaining Indefinite Leave to Remain under the legacy procedure. This firm of solicitors are specialists in immigration, asylum and human rights and legal aid may be available. Please do not hesitate to contact us in the event of any queries at enquiries@bhdsolisitors. co.uk