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

Permission for a further appeal in an asylum case requires an important point of principle or practice, or another compelling reason, under paragraph 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order. That threshold is compatible with anxious scrutiny under Article 3. An appellate court reviewing credibility and fact-finding must identify a fundamental error of approach, rather than substitute its own view of the evidence. A first-instance judgment need not address every item of evidence equally, provided the evidence is assessed and the claimant can understand why the claim failed. Risk on return must be assessed on all the evidence, including expert material, but expert evidence has limits and may not establish the timing necessary to show present risk.

The applicant’s asylum claim was based on alleged torture during periods spent in Sri Lanka. The Secretary of State refused asylum. The First-tier Tribunal dismissed his appeal on 17 April 2012, finding his account wholly incredible. The Upper Tribunal dismissed his appeal on 10 October 2012 and refused permission to appeal on 6 November 2012. Davis LJ also refused permission on the papers on 25 January 2013.

The applicant renewed his application in the Court of Appeal. He argued that the First-tier Tribunal had failed properly to assess medical, expert and objective evidence and had given inadequate reasons. He also sought to argue that the second-appeals test was incompatible with anxious scrutiny under the Refugee Convention, Article 3 and the European Charter on Human Rights.

The renewed application for permission to appeal was refused.

1. Under paragraph 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order (SI 2008/2834), the applicant had to show an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the appeal.

2. The additional challenge to the second-appeals test failed. In PR (Sri Lanka) [2012] 1 WLR 73, the Court of Appeal had decided that the test did not contravene the Refugee Convention or Article 3, and that decision was binding. The European Charter argument added nothing and was also refused because it was late and lacked merit. The appellate process, involving specialist factual assessment, legal review in the Upper Tribunal and access to the Court of Appeal, was sufficiently rigorous to meet the requirement of anxious scrutiny.

3. The relevant substantive issue was risk on return to Sri Lanka. That risk had to be assessed on all the evidence, including expert evidence. The medical evidence concerning scarring, whipping and mental-health problems had limited value on present risk because, among other matters, it could not establish the relevant dates. The First-tier Tribunal had considered that evidence, the objective material and the applicant’s account, and had given an extensive and cogent analysis.

4. On an appeal concerning credibility or factual evaluation, the court must take care to identify a fundamental error of approach rather than merely prefer a different view of the facts. The principle was expressed in Mibanga v SSHD [2005] EWCA Civ 367, and the need for appellate caution was reinforced by Piglowska v Piglowski [1999] UKHL 27 and Biogen Inc v Medeva Ltd [1997] RPC 1. A judgment is not legally inadequate merely because it does not record every nuance or address each item of evidence with equal detail, provided the judge assessed the evidence and explained why the claim failed. No arguable fundamental error was shown.

Order: application refused.

• Court of Appeal (Civil Division) — Davis LJ refused permission on the papers on 25 January 2013. McCombe LJ refused the renewed application on 21 March 2013: [2013] EWCA Civ 522.
• Upper Tribunal (Immigration and Asylum Chamber) — Dismissed the appeal from the First-tier Tribunal on 10 October 2012 and refused permission to appeal on 6 November 2012.
• First-tier Tribunal — Dismissed the appeal against the refusal of asylum on 17 April 2012.
• Secretary of State for the Home Department — Refused the applicant’s asylum claim.