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

Lord Justice Moses: 1. This is an application for permission following refusal by Buxton LJ. The applicant was regarded by the Immigration Judge, Mr Glossop, in his decision on a rehearing on 6 October 2006 as a ranking middle-class man and not a private soldier. But, as has been demonstrated to me, his case was that as someone who was in the military, he would be on his return at risk of persecution because he would be perceived as a deserter because he had rejoined the army. Although, for reasons which cannot now be impugned successfully, the judge rejected his account of his activities within Eritrea, and although he rejected his account as being a private soldier who had spoken up at meetings conducted on behalf of opposition parties, there is no finding whatever as to the risk of return to this applicant as a result of his being a ranking middle-class man. In Senior Immigration Judge Gleeson’s refusal of permission to appeal by, she says: “The burden of proof is always on the appellant, and this case was never put on the base of the appellant being a draft evader.” 2. That so far as it stands is perfectly correct, and there undoubtedly appears to have been confusion, for which the judge can be wholly forgiven,, between the assertion that a man is a draft evader who would be regarded as a deserter and a simple contention that being a member of the military before he left, a man would be regarded as a deserter on return. It is that point which was never dealt with by the Immigration Judge, Mr Glossop, even though I am satisfied that it was argued before him. 3. Similarly, as it seems to me, the matter was not clearly put before Buxton LJ; he upheld Mrs Gleeson in relation to draft evasion. But that was not the contention; the contention was that the applicant was a member of the military before he left and would be regarded as a deserter on return. In relation to that point, it does seem to me that there is a reasonable prospect of success if the point was argued on appeal and it is on that limited point in relation to desertion that I grant permission to appeal. Order: Application granted.