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

On a second appeal, permission requires an important point of principle or practice requiring determination, or another compelling reason. A challenge that merely reargues matters already decided below does not satisfy that threshold. A new point requiring further findings of fact will ordinarily not be entertained where it was not raised before the tribunals, particularly the fact-finding First-tier Tribunal. An Article 8 claim, including medical circumstances or a claimed foreign connection, does not by itself establish a qualifying second appeal.

The applicant, a Sri Lankan national, challenged the refusal of further leave to remain and relied principally on his mental health and Article 8 rights. The First-tier Tribunal dismissed his appeal. The Upper Tribunal concluded that the evidence and proportionality assessment had been adequately considered and dismissed his appeal. Permission was refused by the Upper Tribunal, and the applicant sought permission for a second appeal to the Court of Appeal.

He relied on the alleged significance of his father’s Swiss nationality and residence, and renewed his arguments concerning his length of residence, mental health and Article 8 claim. The central questions were whether either ground disclosed an important point of principle or practice, or another compelling reason.

Application refused.

1. The application concerned a second appeal. Permission could be granted only where the proposed appeal raised an important point of principle or practice requiring determination, or where there was some other compelling reason for the appeal.
2. The challenge based on the applicant’s mental health, length of residence and Article 8 proportionality was no more than a reargument of matters already decided twice. It therefore did not meet the second-appeal threshold.
3. The Swiss nationality and residence point was new and would require further findings of fact. The court stated that new points should not be entertained when they had not been raised at least before the Upper Tribunal, and preferably before the First-tier Tribunal, which was the fact-finding tribunal. Permission was refused on that ground.
4. Longmore LJ accepted that the earlier refusal of permission had correctly treated the Swiss point as one which could, at most, enhance the Article 8 claim rather than establish a right to remain under European Union law. It was difficult to see how the claim could be enhanced in the circumstances, but the procedural objection was sufficient.

Order: application refused.

• Court of Appeal (Civil Division). Application for permission to bring a second appeal refused: [2015] EWCA Civ 1435.
• Upper Tribunal (Immigration & Asylum Chamber). Judge Campbell dismissed the appeal after finding no error of law. Judge Gleeson subsequently refused permission to appeal.
• First-tier Tribunal. Judge Phillips dismissed the applicant’s appeal against the refusal of further leave to remain.