SM (Afghanistan) v Secretary of State for the Home Department

An exemption from a prescribed pre-entry English language requirement depends on whether a physical or mental condition prevents the applicant from meeting the particular test. A general inability to learn another language is insufficient without evidence addressing that test’s nature and standard. A challenge to the tribunal’s evaluation of such evidence is fact-sensitive and does not raise a point of principle or practice for the purposes of a second appeal. Permission was refused.

This was a renewed application for permission to appeal after permission had been refused by Sir Stanley Burnton. The Upper Tribunal Immigration and Asylum Chamber had dismissed the applicant’s appeal concerning exemption from the pre-entry English language requirement in paragraph 281 of the Immigration Rules. The applicant relied on a genuine medical certificate stating that she had memory complications and could not learn another language. The central issues were whether the certificate established that her mental condition prevented her meeting the particular test requirement and whether the proposed appeal satisfied the second appeals test.

Application refused. The single judgment of Lord Justice Maurice Kay concluded that the proposed appeal disclosed neither an arguable error of law with a prospect of success nor a point of principle or practice.

1. The exemption under paragraph 281 of the Immigration Rules requires an applicant to show that a physical or mental condition prevents compliance with the requirement for an original English language test certificate in speaking and listening from an approved provider.
2. The relevant inquiry is specific to the nature and standard of the prescribed test. A statement that the applicant cannot learn another language does not, without more, establish that she cannot satisfy the rudimentary requirements of that test.
3. The Upper Tribunal was entitled to accept the medical certificate as genuine while finding it insufficient. The certificate did not demonstrate that its author was familiar with the nature or standard of the particular test.
4. The proposed challenge was entirely fact-sensitive. It therefore did not raise a point of principle or practice for the second appeals test. The court stated that the application would also fail under the first appeal test, since no arguable error of law with a prospect of success had been shown.
5. The court noted that the applicant could return to the doctor with details of the current test and seek further certification, but made no finding on later financial requirements. The formal order was: application refused.

1. Court of Appeal (Civil Division) — On 10 April 2013, the court refused the renewed application for permission to appeal. [2013] EWCA Civ 533
2. Upper Tribunal Immigration and Asylum Chamber — The tribunal made an adverse decision and dismissed the applicant’s appeal concerning the English language requirement. No citation for that decision was stated in the judgment.