Asylum: another court decision on citizens to be returned to Eritrea

Eritrean citizens whose applications for asylum have been rejected can be deported back to their home country even if they face being called up for national service there. Deportation in this case is both lawful and reasonable, which the Federal Administrative Court has confirmed in its judgment of 10 July 2018.

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Photo: Keystone

In its judgment E-5022/20171, the Federal Administrative Court (FAC) has settled a question which had been left unanswered following judgment D-2311/2016 of 17 August 2017. Although the first judgment had affirmed that deportation in that instance was lawful and reasonable as a general principle, the FAC had not commented on the conditions of national service in Eritrea because the appellant no longer had cause to fear conscription.

Difficult conditions in Eritrean national service

All male and female Eritrean citizens must do national service as a basic principle. This involves completing an initial training period that can last up to six months before being assigned to military or civil national service. Publicly available reports indicate that the length of service for conscripts is hardly predictable and varies between five and ten years on average. Living conditions during the initial basic training and during military and national service are harsh. Specifically, various sources report cases of abuse and sexual assault during basic training and military national service.

European Convention on Human Rights (ECHR) not violated
In its judgment, the FAC has concluded that the requirement to perform national service in a poorly paid position for an unforeseeable amount of time, such as is the case with Eritrean national service, places an excessive burden on citizens. However, this reason alone is not sufficient to prevent deportation from a legal point of view. The ECHR only forbids deportation if there are reasonable grounds to believe that there is a real risk of a flagrant breach of the prohibition of forced labour. The FAC believes that this is not the case here, stating that, although the reported conditions in Eritrean national service are difficult, they are not so severe as to make deportation unlawful. It goes on to say that the abuse and sexual assault are not sufficiently widespread to have any bearing on this assessment. The FAC also does not feel that, as a general principle, anyone returning to Eritrea voluntarily faces a real risk of detention or any accompanying inhumane treatment.

Deportation also reasonable
The FAC is using the same reasoning to conclude that deportation is not only lawful but also reasonable in this case. The 21-year-old appellant, who had argued that the threat of conscription into Eritrean national service prevented deportation, therefore lost the case under review.

This judgment is final and can therefore not be appealed to the Federal Supreme Court.

1 Judgment E-5022/2017 was coordinated by all judges from divisions IV and V. It analyses the conditions of national service in Eritrea and provides a legal assessment which holds not only for this case but for many other proceedings as well.

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