MM (Eritrea) v Secretary of State for the Home Department

Permission to appeal may properly be granted where an immigration tribunal fails to address a material contention which was argued before it and that issue has a reasonable prospect of success. The court distinguished between a claim that an applicant was a draft evader and the separate contention that, having previously been a member of the military, he would be perceived as a deserter on return. Rejection of the applicant’s account on other matters did not resolve that distinct risk. The burden of proof remained on the applicant.

The appellant challenged the Immigration Judge’s decision following a rehearing on 6 October 2006. The judge rejected significant parts of his account, including his claimed activities in Eritrea, but made no finding on whether his status as a former military member, or as a ranking middle-class man, created a risk of persecution on return because he would be perceived as a deserter.

Senior Immigration Judge Gleeson refused permission, treating the case as one based on draft evasion. Buxton LJ upheld that position. The Court of Appeal considered whether the distinct military-membership and perceived-desertion contention had been argued and addressed.

1. Application granted. Permission to appeal was granted on the limited issue concerning the appellant’s alleged risk on return as a former member of the military who might be regarded as a deserter.
2. The burden of proof remained on the appellant. The observation that the case had not been put on the basis that he was a draft evader was correct so far as it went.
3. The draft-evasion contention was distinct from the contention actually advanced. The appellant’s case was that, because he had been in the military before leaving Eritrea, he would be regarded as a deserter on return.
4. The Immigration Judge had rejected the appellant’s account of particular activities but had made no finding on the distinct risk arising from his military status. The issue appeared to have been argued before him and had not been dealt with. Since there was a reasonable prospect of success if the point were argued on appeal, permission was appropriate.
5. The order was limited to the desertion issue. The judgment did not determine the substantive appeal.

• Court of Appeal (Civil Division): Permission to appeal granted on the limited issue of whether the appellant would be perceived as a deserter on return because he had previously been a member of the military.
• Asylum & Immigration Tribunal: Following a rehearing on 6 October 2006, the Immigration Judge rejected parts of the appellant’s account but did not determine the distinct military-status risk.
• Permission stage: Senior Immigration Judge Gleeson refused permission. Buxton LJ upheld that refusal in relation to draft evasion. The Court of Appeal granted permission on the separate desertion issue.