SM (Ukraine), R (on the application of) v SSHD

Permission for a second appeal requires an important point of principle or practice, or another compelling reason. An arguable error of law is insufficient. Tribunals may infer the likely future conduct of an applicant from her past conduct and the reasons for it, even without an express finding on that precise issue, where the overall reasoning addresses it. A challenge to an Article 8 proportionality assessment will not justify a second appeal where the tribunals considered the evidence and reached a reasoned conclusion.

The applicant entered the United Kingdom as a visitor to stay with her daughter. She sought further leave to remain, relying on the domestic violence she experienced from her alcoholic son in Ukraine and her lack of confidence in the Ukrainian authorities.

The First-tier Tribunal dismissed her appeal. The Upper Tribunal dismissed her appeal on the ground that there was no error of law and upheld the assessment that removal would not breach her Article 8 rights. The applicant renewed her application for permission to bring a second appeal to the Court of Appeal. The central issues were whether the tribunals had failed to determine whether she would seek official protection in future and whether they had given inadequate reasons for their Article 8 proportionality assessment.

Permission to appeal refused.

1. Second appeal threshold. The applicant had to show an important point of principle or practice, or another compelling reason, before a second appeal could proceed. The arguments advanced did not meet that threshold.
2. Assessment of future protection. The tribunals had considered the applicant’s previous failure to seek help from the Ukrainian authorities and the reasons she gave for that failure. Although neither tribunal expressly stated that she would not seek help in future, the tenor of their reasoning was that, having not sought help before because of her fears, she was most unlikely to do so later. The omission of an express finding therefore did not disclose an error of law. Even if it did, it would at most be an arguable error, which was insufficient for a second appeal.
3. Article 8 proportionality. Both tribunals had considered the evidence relevant to the applicant’s private and family life and had reached the same conclusion. The challenge that insufficient reasons had been given did not make this an appropriate case for a second appeal.
4. The Court of Appeal found no error of law in either tribunal’s consideration of the case and refused permission to appeal.

• Court of Appeal (Civil Division): refused permission to bring a second appeal on 4 November 2015.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, finding no error of law in the First-tier Tribunal’s decision and upholding the Article 8 assessment.
• First-tier Tribunal: dismissed the applicant’s immigration appeal on 20 June 2014.