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

A renewed application for permission to appeal will fail where the proposed grounds disclose no arguable error in the decisions below. A point not raised before the First-tier Tribunal cannot ordinarily be revived by describing it as Robinson obvious, particularly where the omission leaves no analysis of the original decision. A challenge to evidence admitted by the tribunal is weak where the appellant supplied the evidence and cannot show reliance on it to their prejudice. A judge need not recuse himself because of earlier views about an adjournment unless those views made it difficult, or would have appeared to an objective observer to make it difficult, to consider the appeal dispassionately.

The applicants sought permission to appeal from the Upper Tribunal (Immigration and Asylum Chamber). Their applications for leave to remain under the points-based system as an entrepreneurial team had been refused by the Secretary of State. The First-tier Tribunal dismissed their appeals, and the Upper Tribunal dismissed their subsequent appeal.

Gloster LJ refused permission on the papers. The applicants did not attend the oral renewal hearing, and their solicitors indicated that they had decided to return to Sri Lanka and might have abandoned the appeal. The Court nevertheless considered the four proposed grounds: procedural unfairness, admission of post-decision evidence under section 85A of the Nationality, Immigration and Asylum Act 2002, a consequential ground, and recusal of the Upper Tribunal judge.

Disposition. Lord Justice Underhill dismissed the renewed application and definitively refused permission to appeal.

1. Procedural fairness. The complaint that the Secretary of State had relied on matters not put to the applicants in interview had not been raised before the First-tier Tribunal. The resulting decision contained no analysis of the complaint, the Secretary of State’s reasoning, or the matters allegedly omitted from interview. The Upper Tribunal was therefore plainly right to reject the submission that the point was Robinson obvious.
2. Post-decision evidence. The applicants alleged that the First-tier Tribunal had admitted evidence contrary to section 85A of the Nationality, Immigration and Asylum Act 2002 and the Upper Tribunal decision in Ahmed. The complaint could not support permission where the applicants themselves had lodged the witness statements. Even if admitting the evidence had been an error, it would have operated in their favour. In any event, the First-tier Tribunal’s reasons disclosed no reliance on post-hearing evidence to the applicants’ prejudice.
3. Consequential ground. The third ground added nothing separate and required no independent determination.
4. Recusal. Earlier views expressed by the Upper Tribunal judge about a possible adjournment did not make it difficult for him, or appear to an objective observer to make it difficult for him, to consider the appeal dispassionately. There was accordingly no basis for recusal.

• Court of Appeal (Civil Division). On oral renewal, the Court dismissed the application and definitively refused permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber). Dismissed the applicants’ appeal from the First-tier Tribunal.
• First-tier Tribunal. Dismissed the applicants’ appeals against the Secretary of State’s refusal of leave to remain.