VW (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe |
| Judgment Date | 21 March 2013 |
| Neutral Citation | [2013] EWCA Civ 522 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2013 |
| Docket Number | Case No: C5/2012/3037 |
[2013] EWCA Civ 522
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
[Appeal No: AA/00592/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mccombe
Case No: C5/2012/3037
Leonie Hirst (instructed by Luqmani Thompson and Partners) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal to this court from a decision of the Upper Tribunal (Immigration and Asylum Chamber) of 10 October 2012. The Upper Tribunal dismissed the applicant's appeal from the decision of the First-tier Tribunal of 17 April 2012 whereby that tribunal in turn had dismissed the applicant's appeal from a decision of the Secretary of State to refuse to grant him asylum in the United Kingdom. Permission to appeal to this court was refused by the Upper Tribunal on 6 November 2012 and by Davis LJ, a single judge of this court, on 25 January 2013. The applicant's claim to asylum was based upon allegations that he had been tortured, in particular in three periods, during his presence in Sri Lanka. The First-tier Tribunal Judge dismissed the account of the applicant, which was supported by his brother and by the three expert witnesses, on the basis that he found the applicant's account to be wholly incredible, for reasons that he set out in some detail in his decision.
The main criticism of the First-tier Tribunal's decision, which is the principal ground of proposed appeal, is that that judge failed to have adequate regard to the expert evidence and, in particular, the medical evidence and further, insofar as that evidence was rejected in that tribunal, the judge gave inadequate reasons for so doing. As Ms Hirst put it in her written submissions to the court, the primary issue in the case was an assessment of the risk to the applicant on any potential return to Sri Lanka now or (one might put it) at the time when the judge was considering the case. She argues that the primary issue is not the credibility of the applicant as such, but she argues that the approach of the First-tier Tribunal to the medical evidence was fundamentally flawed and the objective material was not properly considered, thereby rendering questionable and unsupportable the factual decision made by the First-tier Tribunal Judge.
The court's task in considering the application is defined by paragraph 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order, SI 2008/2834. That test is that the applicant must show that the proposed appeal would raise some important point of principle or practice, or that there is some other compelling reason why the court should hear the appeal. Ms Hirst submits that, on the basis of that test, she satisfies the relevant criteria. But, secondly, she wishes to apply for permission to rely on the further ground that the "second appeals test," as it has come to be known, is itself incompatible with the requirement for anxious scrutiny of asylum claims under Article 3 of the Convention and in the context of the European Charter on Human Rights, which is directly applicable in this jurisdiction.
I note, of course, in relation to this second point that, so far as the Convention is concerned, the Human Rights Convention, this court has decided, in a Sri Lankan case, that the second appeal test does not contravene the Refugee Convention or Article 3 (see PR (Sri Lanka) [2012] 1 WLR 73). That decision, so far as it goes, is clearly binding upon me. With respect to Ms Hirst, I cannot see that the European Charter dimension adds anything to the point. It is said that the failure to consider that charter is an important matter that needs to be raised. I say that I will refuse permission to raise that additional ground, not only because of the lateness of the application, which Ms Hirst acknowledges, but on its merits.
The judicial process for appeals of this character in this country is, in my judgment, singularly rigorous. It affords the asylum or human rights claimant a full factual assessment by a specialist tribunal and an appeal on matters of law to the Upper Tribunal. In the Upper Tribunal, the case is again considered by experienced specialist judges who are uniquely qualified to assess the legal approach taken in the First-tier Tribunal in the light of vast...
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Upper Tribunal (Immigration and asylum chamber), 2017-07-11, PA/08654/2016
...of appeal is to set out a litany of forensic criticisms of the type that has been subjected to judicial criticism. See VW (Sri Lanka) [2013] EWCA Civ 522. The grounds, for example, criticise the judge’s finding that the appellant and her husband contradicted each other and his finding about......
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Upper Tribunal (Immigration and asylum chamber), 2020-05-22, PA/08004/2019
...which related to the judge’s assessment of the appellant’s credibility. He cited what was said by McCombe LJ at [12] of VW (Sri Lanka) [2013] EWCA Civ 522 and concluded that the judge had been entitled to reach the conclusions he had, having noted various respects in which the appellant’s a......
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Upper Tribunal (Immigration and asylum chamber), 2020-08-26, HU/00579/2020
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Upper Tribunal (Immigration and asylum chamber), 2020-08-10, PA/01958/2019
...carefully read the decision, I am satisfied that the judge has properly and correctly addressed best interests. In VW (Sri Lanka) [2013] EWCA Civ 522 at [12], LJ McCombe stated, “Regrettably, there is an increasing tendency in immigration cases, when a First-tier Tribunal Judge has given a ......