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

In a second appeal concerning asylum or immigration protection, permission may be justified where the proposed appeal has a reasonable or strong prospect of success and removal may expose the applicant to a real prospect of imprisonment, torture or other serious mistreatment. A borderline case may warrant permission where those consequences are potentially extreme and the court remains in doubt. An arguable failure by the Upper Tribunal to follow applicable country guidance can support permission, particularly where later appellate authority has reinforced that point. The grant of permission does not determine the substantive appeal. It permits a full appellate court to decide both whether permission should have been granted and, if appropriate, the merits.

The applicant sought permission for a second appeal from the Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal had found that five of the twelve risk factors identified in TK (Tamils, LP updated) Sri Lanka CG were satisfied, but concluded that the applicant would not be at risk on return. The applicant argued that the country guidance had not been followed, relying in particular on MP (Sri Lanka) v SSHD.

Permission had previously been refused on the papers by Sir Richard Buxton, relying on PR (Sri Lanka). The applicant submitted that PR (Sri Lanka) had to be read in the light of the later decision in JD (Congo) v SSHD. The central issue was whether the case was an appropriate one for a second appeal.

1. Application granted. The Master of the Rolls granted permission for the second appeal and directed that the substantive appeal be considered by three judges.
2. The proposed challenge was reasonably arguable. The Upper Tribunal had found five of twelve risk factors in TK (Tamils, LP updated) Sri Lanka CG satisfied, yet concluded that the applicant was not at risk. There was an arguable case that the country guidance had not been followed. That argument was reinforced by the reasoning of the Court of Appeal in MP (Sri Lanka) v SSHD, particularly the passages identified by the court.
3. If the matter had been a first appeal, there would have been real justification for permission and a prospect of success. The more difficult question was whether the second-appeal threshold was met. The earlier refusal had relied on PR (Sri Lanka), but that decision had to be read in the light of JD (Congo) v SSHD.
4. This was a borderline case. The proposed appeal had a reasonable prospect of success. The consequences of error were potentially extreme because the applicant might face imprisonment and torture on return, having previously suffered that treatment. Those consequences could be sufficient to justify permission. Where the court is in doubt and the possible consequences include torture or serious mistreatment, granting permission may be preferable to refusing it.
5. The court also considered that the full appeal could provide guidance on the consequences of PR (Sri Lanka) and JD (Congo) v SSHD, including whether permission ought to have been granted.

• Court of Appeal (Civil Division): Permission granted for a second appeal from the Upper Tribunal (Immigration and Asylum Chamber). The substantive appeal was to be heard by three judges.
• Upper Tribunal (Immigration and Asylum Chamber): The tribunal found five of twelve risk factors in TK (Tamils, LP updated) Sri Lanka CG satisfied but concluded that the applicant would not be at risk on return. The citation of the decision is not stated in the judgment.
• Permission stage: Sir Richard Buxton refused permission on the papers. The citation of that refusal is not stated in the judgment.