SM ( Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 1503

Case No C5/2009/1356[2009] EWCA Civ 1503
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/13127/2007]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 17 th December 2009
Before
LORD JUSTICE MAURICE KAY
Between
SM ( SRI LANKA )ApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Jegarajah (instructed by Birnberg Peirce & Partners) appeared for Appellant. for THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED.
Judgment
[1]This is a case in which I refused permission to appeal on the papers and now Ms Jegarajah, who was not previously instructed, has renewed the application taking issue with my original grounds of refusal. I have just indicated to her that I now propose to grant permission because I think there is an extremely compelling reason why this court should consider this case substantively.[2]The history highlights certain difficulties with the reconsideration system in the AIT. The applicant appealed to the AIT raising issues under the Immigration (European Economic Area) Regulations and Article 8 of the ECHR. In a nutshell his case was that his health is parlous and he is dependent upon the personal care of his uncle who is an EU citizen. This, it was said, brought the applicant within Regulation 8 of the Regulations, and in any event he has Article 8 ECHR rights deriving from the same dependency.[3]The applicant was successful before Immigration Judge Morgan, who found that the applicant is severely mentally and psychologically impaired and that he “strictly requires the personal care of his uncle on serious health grounds”. By reference to the same consideration, Immigration Judge Morgan concluded that to remove the applicant would infringe his rights under Article 8.[4]The Secretary of State sought reconsideration. That was considered at the first stage by Senior Immigration Judge Walmsley, who concluded that Immigration Judge Morgan had fallen into legal error in relation to Article 8. Accordingly he adjourned the matter to a second stage reconsideration in relation to Article 8, adding at paragraph 25:
“However, the primary findings of fact made by him as recorded in his determination are sound, and have not been challenged by the respondent. In the circumstances, the appropriate course of action is for this hearing to be adjourned for stage 2 reconsideration before a different Immigration Judge on the basis that the primary findings of fact made by Immigration Judge Morgan are to stand.”
He then added that the applicant’s claim under the regulations was, “clearly unarguable and does not form part of the stage two reconsideration”.[5]The matter then proceeded to stage two reconsideration before Immigration Judges Clayton and Jones. Notwithstanding the direction that the original findings of fact should stand, it seems that the Secretary of State had by the time of the second stage reconsideration come into possession of documents which, to put it mildly, undermined the applicant’s case on dependency upon his uncle. Those documents must have been disclosed in advance of the hearing of the second stage reconsideration and, one way or another, the second stage reconsideration did not proceed simply on the basis of Immigration Judge Morgan’s findings of fact. Ms Jegarajah was not involved at that stage and so cannot assist as to precisely how the agenda was settled at the hearing of the second stage reconsideration. Clearly the view taken by or on behalf of the applicant was that the documents which had been obtained by the Secretary of State, which included business records and tax documents, could be met with evidence. At the second stage reconsideration the applicant himself did not give evidence but his brother and his uncle did and sought to explain away the inferences which the Secretary of State was clearly going to invite the IAT to draw from the recently obtained documents.[6]I need not go into detail at this stage, but suffice it to say that at paragraph 71 of the determination on second stage reconsideration the immigration judges concluded that the applicant’s case and the evidence of his witnesses were blown apart by the documents. They had “lied continually”. The judges found that “the entire appeal was based on falsehoods and untruths”. The findings are extremely stark as to the family history and the alleged dependency. Thus psychiatric reports which had been based on a claim that the applicant’s close family had been wiped out in the Tsunami were found to be based on lies told by the applicant. His original accepted evidence of severe ill health and dependency upon his uncle was rejected by reference to his apparent economic activity as evidenced by the new documents. In paragraph 87 the immigration judges said:
“We do not doubt the [applicant], his brother and uncle are part of a close family. The fact they care for one another is not in question. Indeed, the brother and uncle were prepared to perjure themselves in order to assist the [applicant]. However, we find the [applicant’s] claim to be seriously mentally ill and to require 24 hour personal care and supervision to be simply untrue. He may not be in the best of health; we make no findings as to that. There was no medical report before us where the maker was aware of the true situation. We find the [applicant] is not dependent upon his brother and uncle in any way over and above a normal relationship between siblings and their uncle. The applicant does have close family in Sri Lanka in the form of his mother and sister. Health care is available in Sri Lanka. There is no reason why he should not return to Sri Lanka and rejoin his family there.”
[7]Ms Jegarajah’s skilful submissions do not seek to criticise the findings of fact what are so adverse to the applicant. Her criticism is that there ought not to have been any further findings of fact in view of the earlier direction that the findings of Immigration Judge Morgan should stand. Accordingly what we have is a decision of Immigration Judge Morgan that was legally flawed to the detriment of the Secretary of State but considered factually alright by Senior Immigration Judge Walmsley, and the second decision of two immigration judges which factually does not inhabit the same universe as the findings of fact by Immigration Judge Morgan.[8]My concern when I considered this case on the paper was that if the applicant had a complaint about Senior Immigration Judge Walmsley concluding that the case under the Regulations was clearly unarguable and should not form part of the stage two reconsideration, the applicant ought to have challenged that at that stage so that when the second stage reconsideration took place the applicant should have the opportunity to defend what he had been given by Immigration Judge Morgan but what had been taken away by Senior Immigration Judge Walmsley.[9]I had in mind that it might be possible for the applicant to apply to the Administrative Court under section 103A before the substantive reconsideration so as to put the Regulations back on the agenda. However, Ms Jegarajah has explained to me that that was not done because it would be contrary to AIT practice for it to be done. She points to a decision of Collins J to the effect that in this rather unsatisfactory situation the point should be left to be taken up again in the Court of Appeal should it arise. That is the case of R (Wani) v SSHD [2005] EWHC 2815 (Admin).[10]All this is extremely regrettable, not to say bizarre, in view of the juxtaposition of the two factual determinations of Immigration Judge Morgan and the two immigration judges on second stage reconsideration. It seems to me that now that a factual determination has been made with the benefit of the lately produced documents, there is probably no factual merit in this applicant’s case whatsoever. However, the question remains as to whether he has been incorrectly deprived of the original factual findings which were ordered to stand by Senior Immigration Judge Walmsley. The fact also remains that what has taken place discloses a rather unfortunate view of the AIT reconsideration regime.[11]It seems to me that it is important that this court should consider the procedural position that arises in circumstances such as this where the applicant had a favourable decision taken away from him by the order for second stage reconsideration, which also took away from him on the face of it a success that was not to be further argued at the second stage consideration Regulation 8 point of the findings from which it was based. In short, I consider this to be a procedural quagmire albeit in an ostensibly unmeritorious case, and for the reasons that I have given I shall grant permission so that the Court of Appeal can give some guidance.[12]Ms Jegarajah tells me, and she is by no means the first to tell me, that very often the first hour of a second reconsideration hearing is taken up with what can and what cannot be advanced in the light of the order for second stage reconsideration. Ultimately these are matters for the AIT, but problems which can arise as exemplified by this case dispose me to the view that some authoritative guidance is desirable. Therefore I grant permission because I think there is a compelling reason for the Court of Appeal to consider the case substantively.

Order

Application granted