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

In an Article 8 immigration claim, a tribunal may find a witness well meaning but unreliable without finding dishonesty. An appellate court will not treat a different assessment of evidential weight as an error of law. In assessing proportionality outside the Rules, substantial weight must be given to the public interest expressed in them. A person who does not qualify under the Rules must show compelling circumstances. A claimed difference in residence length will not necessarily alter the outcome where residence was largely without leave, work was illegal, and family and private life evidence was unsatisfactory. A renewed second appeal also requires an important point of principle or practice, or compelling reasons.

The appellant, a Sri Lankan national, applied for indefinite leave to remain on the basis of long residence. He claimed continuous residence from November 2000, but the First-tier Tribunal found that continuous presence had not been established before 2004. His application had been refused, and the First-tier Tribunal dismissed his appeal. The Upper Tribunal dismissed a further appeal.

The appellant sought renewed permission to appeal. He challenged the treatment of witness evidence concerning his residence and the conclusion that the Article 8 proportionality assessment would remain adverse even if he had been resident for 13 years. The central issues were whether those conclusions disclosed an error of law and whether the stringent test for a second appeal was met.

Lord Justice Underhill dismissed the renewed application for permission to appeal. The First-tier Tribunal had been entitled to find that the appellant had not established continuous residence before 2004.

1. Evidence and appellate restraint. Witnesses may be well meaning yet unreliable on whether a person was continuously present during a particular period. A fact-finder is not required to find that such witnesses were dishonest before declining to rely on their evidence. The statements were vague and unparticularised, and the First-tier Tribunal judge had heard the witnesses questioned. Even if another judge might have attached greater weight to their evidence, a misassessment of evidential weight is not, without more, an error of law (para [8]).
2. Article 8 proportionality. The court noted that the appellant’s case had been argued on the basis of Article 8 outside the Rules, although later case law had shown that legal approach to be incorrect, as acknowledged by counsel: Singh [2015] EWCA Civ 74 (para [3]). In any event, even assuming continuous residence from 2001, the difference between nine and 13 years was not decisive. Great weight had to be given to the Secretary of State’s assessment of the public interest as shown in the Rules, and compelling circumstances were required before leave could be granted to a person who did not qualify under them. The appellant had spent most of the relevant period without leave and working illegally. The First-tier Tribunal had also carefully assessed, but found unsatisfactory, the evidence concerning his family and private life (paras [9]-[12]).
3. Second appeal permission. Even if either ground were more arguable, the case raised no important point of principle or practice and disclosed no compelling reason for a further appeal. The stringent permission test was therefore not met (para [13]).

The application was dismissed (para [14]).

• Court of Appeal (Civil Division): on 5 May 2015, Lord Justice Underhill dismissed the renewed application for permission to appeal following refusal on the papers by Jackson LJ: [2015] EWCA Civ 644.
• Upper Tribunal (Immigration and Asylum Chamber): determination promulgated on 30 April 2014, dismissing the appellant’s appeal.
• First-tier Tribunal: determination promulgated on 20 November 2013, dismissing the appellant’s appeal against refusal of indefinite leave to remain.