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

On a renewed application in a second appeal, permission should be refused unless the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. The ordinary first-appeal test remains relevant: permission requires a real prospect of success. A judge may accept parts of an asylum claimant’s account while rejecting other parts, provided the findings are rationally supported by the overall evidence. A sur place activity or proposed participation in an inquiry must be considered, but it need not alter an assessment that the claimant lacks a political profile likely to attract adverse attention. Where the ordinary first-appeal threshold is not met, the more stringent second-appeal threshold cannot be met.

The applicant sought permission for a second appeal from the Upper Tribunal (Immigration and Asylum Chamber) in an asylum claim concerning return to Sri Lanka. The Upper Tribunal accepted that he had been tortured during detention, but rejected significant parts of his account, including his claim to have signed a confession and his account of escape. It also concluded that he was unlikely to have a political profile attracting adverse interest from the Sri Lankan authorities, having considered his proposed cooperation with a United Nations inquiry.

Treacy LJ refused permission on the papers. Lord Justice Sales heard the renewed oral application and considered whether the proposed appeal raised an important point of principle or practice, or whether there was another compelling reason for the Court of Appeal to hear it.

1. Application dismissed. The applicant failed the second-appeal test. The proposed appeal raised no important point of principle or practice and disclosed no other compelling reason for a further appeal.
2. The Upper Tribunal had properly directed itself by reference to GJ and Others (post civil war: returnees) (Sri Lanka) CG [2013] UKUT 00319 (IAC). The applicant’s challenge to the finding that he was unlikely to have signed a confession had no real prospect of success even under the ordinary first-appeal test. A fact-finder may accept some parts of an account and reject others. The findings concerning the escape from detention and the confession were rationally open on the judge’s overall assessment of the evidence.
3. The judge had taken account of the proposed sur place cooperation with the United Nations inquiry. The conclusion that the applicant was unlikely to have a political profile making him of adverse interest to the Sri Lankan authorities was not irrational and did not improperly leave relevant evidence out of account. The proposed participation did not require a different conclusion on the evidence.
4. Since the applicant failed the ordinary first-appeal test, he necessarily failed the more stringent second-appeal test. The court agreed with Treacy LJ’s reasons and dismissed the application.

• Court of Appeal (Civil Division): Treacy LJ refused permission to appeal on the papers. On renewal, Lord Justice Sales dismissed the application on 17 February 2016.
• Upper Tribunal (Immigration and Asylum Chamber): The tribunal accepted that the applicant had been tortured but rejected significant parts of his account and found that he was unlikely to have a political profile attracting adverse interest in Sri Lanka.