SM ( Sri Lanka) v Secretary of State for the Home Department

Permission to appeal may properly be granted where the reconsideration process creates a procedural conflict between an earlier favourable factual determination and a later determination based on new evidence. The Court of Appeal may provide guidance even where the applicant’s substantive case appears factually weak, if the process may have deprived the applicant of the benefit of findings directed to stand. A complaint that a first-stage decision wrongly removed an issue from the second-stage reconsideration should ordinarily be raised at that stage, subject to the practical procedures governing the tribunal’s reconsideration regime.

The applicant had succeeded before Immigration Judge Morgan on claims based on dependency on an EU-citizen uncle, under Regulation 8 of the Immigration (European Economic Area) Regulations, and under Article 8 ECHR. On reconsideration, Senior Immigration Judge Walmsley held that the Article 8 reasoning contained legal error, directed that the primary factual findings should stand, and excluded the Regulations claim from the second stage as clearly unarguable.

At the second-stage reconsideration, further documents were considered and Immigration Judges Clayton and Jones made findings fundamentally inconsistent with the earlier findings. The renewed application concerned whether permission should be granted so that the Court of Appeal could address the resulting procedural difficulty.

Application granted. Lord Justice Maurice Kay granted permission to appeal because there was an extremely compelling reason for the Court of Appeal to consider the procedural operation of the AIT reconsideration system.

1. The first-stage reconsideration decision had treated Immigration Judge Morgan’s primary findings of fact as sound and directed that they stand. It also removed the Regulation 8 issue from the second-stage reconsideration.
2. The second-stage reconsideration nevertheless proceeded on the basis of newly obtained business and tax documents. Immigration Judges Clayton and Jones made stark adverse credibility and dependency findings which did not inhabit the same factual framework as the earlier determination.
3. The court recognised that the applicant’s substantive case appeared to have little factual merit after the new evidence. That did not remove the procedural issue. The question remained whether the applicant had been incorrectly deprived of the benefit of factual findings which had been ordered to stand, including findings underlying a claim that was no longer to be argued.
4. The applicant had not challenged the first-stage exclusion of the Regulations claim under section 103A before the substantive reconsideration. Counsel relied on R (Wani) v SSHD, in which Collins J had indicated that, in the relevant procedural circumstances, the issue could be taken up in the Court of Appeal.
5. The reconsideration process was described as a procedural quagmire. The court considered authoritative guidance desirable because hearings were often occupied by disputes about what could be advanced after an order for second-stage reconsideration. Permission was therefore granted for substantive consideration; the merits of the appeal were not determined.

1. Court of Appeal: The renewed permission application was granted under [2009] EWCA Civ 1503 so that the procedural issues could be considered substantively.
2. Second-stage reconsideration: Immigration Judges Clayton and Jones considered newly obtained documents and reached materially contrary findings on dependency and credibility.
3. First-stage reconsideration: Senior Immigration Judge Walmsley found legal error in the Article 8 reasoning, directed that the primary factual findings stand, and excluded the Regulations claim from the second stage as clearly unarguable.
4. Asylum and Immigration Tribunal: Immigration Judge Morgan allowed the applicant’s claims under Regulation 8 of the Immigration (European Economic Area) Regulations and Article 8 ECHR, relying on severe ill health and dependency on his EU-citizen uncle.