MH (Bangladesh) v the Secretary of State for the Home Department

On a second appeal, permission should be refused where the proposed grounds have no reasonable prospect of success and do not satisfy the additional second-appeal requirements. Findings that an immigration claim under rule 276ADE(vi) and article 8 is weak, unsupported by credible evidence, and does not demonstrate unduly harsh consequences will not disclose an arguable error of law where properly founded on the evidence. Proceeding in a party’s absence is not procedurally unfair where adequate notice was given and attendance could not have affected the outcome.

The applicant sought permission for a second appeal concerning refusal of leave to remain on family and private-life grounds under the Immigration Rules and article 8 of the European Convention on Human Rights. He relied on rule 276ADE(vi), asserting that he had lived continuously in the United Kingdom for less than 20 years and had no ties to the country of return.

The First-tier Tribunal refused the application. The Upper Tribunal upheld that decision after the applicant failed to attend despite notice sent to his correct address. The matter came before the Court of Appeal for consideration of permission. The central issue was whether the proposed appeal had a real prospect of success or raised an important point of principle or practice, or another compelling reason for the court to hear it.

Permission to appeal refused. Lady Justice King adopted Kitchin LJ’s reasons and held that the proposed second appeal had no reasonable prospect of success and did not satisfy the second-appeal test.

1. The First-tier Tribunal was entitled to reject the article 8 claim on the evidence. The applicant’s case was very weak, his relationships were no more than relationships between adult siblings, and there was no credible evidence that return would have unduly harsh consequences for his private or family life.
2. The First-tier Tribunal found no exceptional circumstances, and the Upper Tribunal correctly concluded that there was no error in the First-tier Tribunal’s decision. The proposed grounds merely sought to reargue the case.
3. The Upper Tribunal’s decision to proceed in the applicant’s absence involved no procedural unfairness. Notice had been sent by first-class post to his correct address, and his attendance could not have altered the outcome.
4. The proposed appeal raised no important point of principle or practice and disclosed no other compelling reason for the Court of Appeal to hear it. Permission was therefore refused.

1. Court of Appeal (Civil Division): Permission for a second appeal refused under [2016] EWCA Civ 244.
2. Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s refusal was upheld; the applicant’s appeal proceeded in his absence.
3. First-tier Tribunal: The application for leave to remain on article 8 grounds was refused.