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

Permission to appeal may be appropriate where an immigration tribunal appears to have overlooked material country information bearing directly on a central credibility finding. The significance of airport exit procedures must be assessed separately from entry procedures, particularly where the appellant held a valid passport. A tribunal may also err procedurally by relying on an adverse authenticity point which was not put to the appellant or raised by the respondent. At the permission stage, the court need only be satisfied that the proposed ground has a real prospect of success. Permission was granted on the grounds concerning exit checks, alleged speculation about deletion of detention records, and the authenticity of post-departure documents.

The appellant, a Sri Lankan national, sought to challenge the refusal of his claim for leave to remain on asylum, humanitarian protection and human rights grounds. The Upper Tribunal dismissed his appeal, relying substantially on the fact that he had left Sri Lanka from Colombo Airport on his own passport despite claiming to have been detained and required to report to the authorities.

On a renewed application, the Court of Appeal considered whether the tribunal had failed to engage with country information about airport exit checks, whether a finding about the deletion of detention records was speculative, and whether the tribunal had fairly rejected documents without the alleged defects having been raised by the respondent. The central question was whether those grounds disclosed a real prospect of establishing a material error of law.

1. Permission granted in part. The court granted permission on Grounds 1 and 2 because the Upper Tribunal arguably failed to consider country information specifically cited in the appellant’s skeleton argument. That material indicated that immigration officers’ power to prevent embarkation was limited and that exit checks differed from the controls applying on entry. The tribunal’s finding that it was virtually inevitable that the appellant would have been stopped could therefore amount to a material error, particularly because the finding materially influenced its overall assessment of the claim.
2. Permission was also granted on Ground 4. The tribunal had inferred that payment of a bribe securing release would probably have resulted in the destruction of detention records. Toulson LJ considered that there was arguable substance in the submission that this conclusion was speculation unsupported by evidence.
3. Permission was granted on Grounds 6 and 8 concerning the alleged arrest warrant and summons. The tribunal relied on the absence of any reference in the summons to a provision of the Sri Lankan Prevention of Terrorism Act or penal code as a telling reason to doubt its authenticity, although the point had not apparently been put by the respondent. That raised an arguable issue of procedural fairness, since the appellant should have had an opportunity to address an adverse point considered significant by the tribunal.
4. Singh v Belgium ECHR 362 [2012] was cited in support of the need for proper investigation of documents where Article 3 risks and the irreversible consequences of ill-treatment are engaged. The court considered that reasoning potentially applicable beyond identity documents to documents of the present kind.
5. Permission was refused on Ground 3. The court said nothing on Grounds 5 and 7, which were not matters of importance. The application was granted to the extent stated and the matter was directed to a court of three judges, possibly including a High Court judge.

• Court of Appeal (Civil Division) — On a renewed application, permission to appeal was granted on Grounds 1, 2, 4, 6 and 8, refused on Ground 3, and not addressed on Grounds 5 and 7. The matter was directed to proceed before a court of three judges.
• Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Spencer dismissed the appellant’s appeal against the refusal to vary his leave to remain.