MR (Sri Lanka) v Secretary of State for the Home Deparment

In an asylum appeal, a tribunal’s failure expressly to address supporting evidence is not necessarily an error of law. The question is whether the omission undermines the decision in the particular circumstances. Evidence said to authenticate a document may fail to cure serious credibility problems where it is vague, inconsistent or unsupported by the underlying record. The approach in PJ (Sri Lanka) [2014] EWCA Civ 1011 was confined to materially different circumstances involving independently obtained official court documents. The serious consequences of returning an asylum seeker do not, without strong grounds of legal error, constitute a compelling reason for a second appeal.

MR challenged the refusal of his asylum claim and the decision to remove him. The First-tier Tribunal dismissed his appeal on 1 September 2014, largely disbelieving his account. The Upper Tribunal dismissed his appeal on 17 April 2015.

MR renewed an oral application for permission to appeal to the Court of Appeal. The central issue was whether the tribunals had erred in law by failing specifically to address a lawyer’s purported authentication of a police letter concerning his alleged detention in Sri Lanka. The court also considered whether the requirements for a second appeal were met.

1. The renewed application for permission to appeal was refused. The proposed appeal had no real prospect of success.
2. The First-tier Tribunal had considered the purported police letter and had rejected MR’s account on numerous grounds. Although it would have been better for the tribunal to address the letter from Mr Karikalan expressly, its failure to do so did not, in the circumstances, amount to an error of law undermining the decision.
3. The authority of PJ (Sri Lanka) v Secretary of State [2014] EWCA Civ 1011 did not assist MR. In that case, two lawyers had independently obtained documents from a Sri Lankan court file showing that the appellant was suspected of LTTE activity and should be arrested on return. Those circumstances required sufficient justification for concluding that the appellant lacked a well-founded fear of persecution.
4. The present evidence was materially different. Mr Karikalan did not produce the record on which he relied. His account differed from the purported police letter as to the reporting condition, referred to a different date, and was unclear as to what was meant by confirmation that the letter was genuine. It raised further questions rather than resolving the credibility problems. The circumstances were therefore a long way from those in PJ.
5. No important point of principle or practice arose. The consequences of wrongly returning an asylum seeker might support a compelling reason where there were strong grounds for believing that the tribunal had erred in law, but those consequences alone could not satisfy the second-appeal test.

1. Court of Appeal (Civil Division): refused MR’s renewed application for permission to appeal on 10 May 2016.
2. Upper Tribunal (Immigration and Asylum Chamber): dismissed MR’s appeal against the First-tier Tribunal’s decision on 17 April 2015.
3. First-tier Tribunal: dismissed MR’s appeal against the removal decision and refusal of asylum on 1 September 2014.