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

At the permission stage, an appeal may be granted to enable consideration of a narrow but important legal issue even where the court has doubts about the appeal’s ultimate prospects. The grant of permission does not determine the merits. The court left open whether an asylum tribunal, having rejected an applicant’s account of illegal departure as wholly incredible, may conclude that the applicant left lawfully despite being of military age, having been called up for national service and not obviously falling within limited categories eligible for an exit visa.

The appellant, an Eritrean citizen, claimed asylum after entering the United Kingdom. He alleged that he had been called up for national service, converted to the Pentecostal faith, been detained for that reason, escaped and left Eritrea illegally. Following a full rehearing before Immigration Judge Levin, the Asylum and Immigration Tribunal rejected his account, found that he had not proved illegal departure and dismissed his appeal on asylum and human rights grounds. The tribunal and Sir Henry Brooke refused permission to appeal. The renewed application concerned whether rejection of the appellant’s account required separate findings on national service, demobilisation, desertion and the possibility of lawful exit, having regard to the country guidance in MA (Draft evaders – illegal departures – risk) Eritrea [2007] UKAIT 00059.

The renewed application for permission to appeal was granted. Lord Justice Richards gave the judgment, and Lord Justice Carnwarth agreed. The Court of Appeal did not determine the substantive merits or decide whether the AIT had made an error of law.

1. The Court considered it doubtful that the AIT had erred in reaching its conclusions or in distinguishing MA (Draft evaders – illegal departures – risk) Eritrea [2007] UKAIT 00059. The AIT had rejected the appellant’s account as wholly incredible and had concluded that he had failed to prove that he left Eritrea illegally.
2. The issue nevertheless warranted permission because it was narrow but important and arose in several other cases in which permission had been granted. The issue was whether an AIT, having wholly rejected an applicant’s account of illegal exit, could conclude that the applicant had left lawfully even though he was of military age, had been called up for national service and did not obviously fall within the limited categories able to obtain an exit visa.
3. The Court left that substantive question open for determination when the related appeals were considered together. It made no final finding that military call-up, the objective country evidence or the limited availability of exit visas compelled a conclusion that the appellant was a deserter or had left illegally.
4. Order: application granted.

• Court of Appeal (Civil Division): On 6 February 2008, granted the renewed application for permission to appeal so that the identified issue could be considered with related cases.
• Asylum and Immigration Tribunal: Following a full rehearing, Immigration Judge Levin dismissed the appellant’s asylum and human rights appeal. The tribunal refused permission to appeal.
• Permission decision on the papers: Sir Henry Brooke refused permission to appeal.