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

Permission for a second appeal requires an important point of practice or principle, or another compelling reason for the appeal to be heard. A case that turns essentially on the lower tribunal’s assessment of the facts, where the correct legal principles were applied, will ordinarily satisfy neither limb. The absence of a real prospect of success reinforces that conclusion. The Court of Appeal may therefore refuse permission where the proposed challenge seeks to reopen factual findings rather than raise a genuine point of principle.

The appellant sought renewed oral permission to bring a second appeal concerning an application for discretionary leave to remain. He relied on his Convention rights and the Secretary of State’s domestic violence policy, referring to his long residence, employment, engagement and the breakdown of his marriage.

The First-tier Tribunal found that the marriage had broken down because of the wife’s affair rather than domestic violence. The Upper Tribunal found no error of law and dismissed the appeal. Sir Maurice Kay refused permission on paper. The central issue was whether the proposed appeal met the second appeals test.

1. Application refused. The Court of Appeal applied the statutory second appeals test. Permission could be granted only if the proposed appeal raised an important point of practice or principle, or if there was some other compelling reason for the appeal to be heard.
2. The proposed appeal concerned essentially the First-tier Tribunal’s assessment of the evidence and the reasons for the breakdown of the marriage. The First-tier Tribunal had considered the evidence carefully and made a factual finding that domestic violence was not the cause of the breakdown.
3. The Upper Tribunal had found no error of law in the First-tier Tribunal’s decision. The tribunals below had applied the correct principles when addressing the appellant’s Convention rights and the domestic violence policy.
4. Lord Justice Sales agreed with Sir Maurice Kay’s assessment that the proposed appeal had no real prospect of success. It fell even further short of the more stringent second appeals test. It raised no important point of practice or principle, and no other compelling reason justified granting permission.
5. The application was dismissed. The formal order was: application refused.

1. Court of Appeal (Civil Division): On 2 February 2016, the court refused the renewed application for permission to bring a second appeal: [2016] EWCA Civ 308.
2. Upper Tribunal (Immigration & Asylum Chamber): Found no error of law in the First-tier Tribunal’s decision and dismissed the appellant’s appeal.
3. First-tier Tribunal: Assessed the evidence and concluded that the marriage had broken down because of the wife’s affair rather than domestic violence.