PR (Sri Lanka) & Ors v Secretary of State for the Home Department

Permission for an appeal from the Upper Tribunal under the second-tier appeals test requires either an important point of principle or practice calling for consideration by the Court of Appeal, or another legally compelling reason. The latter is an exceptional safety valve. It ordinarily requires very high prospects of success, such as a plainly wrong decision, or a wholly exceptional failure of fair procedure.

The potentially drastic consequences of an immigration or asylum decision may add weight, but do not constitute a free-standing compelling reason. The asserted risk of persecution, torture or breach of international obligations does not itself justify a third judicial process after the claim has failed within the specialist two-tier tribunal system.

Three applicants renewed applications for permission to appeal from decisions of the Upper Tribunal (Immigration and Asylum Chamber). PR, a Sri Lankan Tamil, challenged the rejection of his claim that his detention, torture and alleged LTTE connections created a risk on return. TC, a Zimbabwean national facing deportation after a serious conviction, relied on country guidance and his family’s interests. SS, a Bangladeshi Buddhist monk, challenged adverse credibility findings concerning alleged persecution and a murder conviction in his absence.

Each application was governed by section 13(6) of the Tribunals, Courts and Enforcement Act 2007 and the related 2008 Order. The common question was how the requirements of an important point of principle or practice or some other compelling reason applied to immigration and asylum cases.

1. Permission refused in all three cases. The second-tier appeals criteria are deliberately restrictive. An important point must concern the establishment of principle or practice, rather than merely an arguable error in applying settled law. In the tribunal context, it must also call for the attention of the higher courts rather than determination within the specialist system.

2. The alternative requirement of another compelling reason is an exceptional safety valve. Ordinarily, the proposed appeal must have very high prospects of success. A decision that is perverse, plainly wrong or inconsistent with higher authority may qualify. A wholly exceptional collapse of fair procedure may also qualify where refusing permission would effectively deny the party a fair appeal.

3. The word “compelling” means legally compelling. The extremity of the possible consequences for an individual may exceptionally add weight to the legal case, but is not an independent test. Immigration and asylum cases receive no generally less restrictive standard merely because removal may expose the applicant to persecution, torture or another serious interference with human rights.

4. The risk of breaching international obligations did not itself justify permission. The specialist First-tier and Upper Tribunals were competent to determine whether the asserted fear was well founded. International law did not require a second appeal. Ministerial statements could not alter the test or constrain the Court of Appeal’s statutory judgment.

5. Some flexibility remains according to the provenance of the proposed appeal. Where the Upper Tribunal identifies an error and then determines the matter afresh, there has been only one level of judicial consideration of the remade decision. That circumstance may support a slightly less demanding evaluation, but the statutory test continues to apply.

6. PR’s carefully reasoned Upper Tribunal decision was neither perverse nor plainly wrong and involved no serious procedural irregularity. TC’s arguments concerned the detailed application of country guidance, proportionality and the children’s interests rather than a new principle. SS’s criticisms disclosed arguable obscurity in the First-tier Tribunal’s reasons, but no point of general principle or other compelling reason. All three renewed applications were refused.

1. Court of Appeal (Civil Division): By [2011] EWCA Civ 988, refused each renewed application for permission to appeal.

2. Upper Tribunal (Immigration and Asylum Chamber): In PR’s case, found an error in the First-tier Tribunal’s treatment of the medical evidence, remade the decision after hearing evidence, and dismissed the appeal. In TC’s and SS’s cases, dismissed their appeals from the First-tier Tribunal.

3. First-tier Tribunal (Immigration and Asylum Chamber): Dismissed each applicant’s immigration or asylum appeal.