TA (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1435

Case No C5/2014/1033[2015] EWCA Civ 1435IN THE COURT OF APPEAL (QUEEN’S BENCH DIVISION)ON APPEAL FROM THE UPPER TRIBUNAL(IMMIGRATION & ASYLUM CHAMBER)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 8 th December 2015
Before
LORD JUSTICE LONGMORE
Between
TA (SRI LANKA)ApplicantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Transcript of Merrill Legal SolutionsA Merrill Corporation Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Email: mlstape@merrillcorp.comOfficial Shorthand Writers to the Court
MR THARSHAMAN AMBIKAIKUMARN appeared in person, assisted by MR GAJENDRA MANOHARA as McKenzie Friend for in person for The Respondent did not appear and was not represented
Judgment
[1]This is an application for permission to appeal by a gentleman from Sri Lanka, who I will refer to as Mr TA. He is in person but he has a McKenzie Friend in the form of Mr Manohara, who has been able to speak for him. Mr Manohara is a qualified solicitor and has made his oral submissions very helpfully, concisely and in a way that I much appreciate.[2]The position is that Mr TA was born in March 1986 in Sri Lanka. His father, who was a person who the Swiss authorities considered should have asylum on the basis that he had a reasonable fear of persecution in Sri Lanka, came to Switzerland but returned to Sri Lanka when Mr TA was taking his examinations in 2004 or 2005 in order to be present when his son was doing these exams. Very sadly, the rebels in Sri Lanka got wind of his being there and they shot him dead. Not surprisingly, Mr TA wanted at that stage to have nothing more to do with Sri Lanka and he came to the United Kingdom, where he was given permission to enter as a Tier 4 (General) student migrant.[3]He was granted leave to remain on subsequent applications up to 15 February 2011 and then, on 2 July 2010, he was granted further leave to remain as a Tier 1 (Post-Study Work) migrant up to 2 July 2012. Before his leave expired he applied for further leave to remain, which the Secretary of State refused on the basis that he had now been here for more than five years and that his article 8 claim was not sufficiently strong to justify his remaining in the United Kingdom.[4]Mr TA appealed to the First-tier Tribunal and Judge Phillips in that tribunal dismissed his appeal. The main issue in that appeal was the health of Mr TA and particularly, sad to say, his mental health problems, but the tribunal decided that they were not sufficiently severe to engage article 8 and that, in any event, the interference with his article 8 rights if he were removed was, in all the circumstances, proportionate.[5]The applicant then applied for permission to appeal to the Upper Tribunal. He was initially refused by another judge of the Firs-tier Tribunal but he was granted permission to appeal by Upper Tribunal Judge Pitt on the basis that it was arguable that the First-tier Tribunal had not adequately dealt with the evidence of Mr TA’s deterioration in his mental health.[6]So the case came before Upper Tribunal Judge Campbell, who had to consider whether the First-tier Tribunal had erred in law. He concluded that the First-tier Tribunal had considered the medical evidence properly, particularly the evidence of a Dr Kreeger, and had also adequately considered the question of proportionality with reference to article 8 of the Human Rights convention. So Upper Tribunal Judge Campbell dismissed his appeal.[7]Mr TA then applied for permission to appeal, which Upper Tribunal Judge Gleeson refused on the basis that his grounds of appeal were no more than a reiteration of the arguments which he had twice lost. Then Mr TA applied to the Court of Appeal for permission to appeal and he obtained the services of Ms Jegarajah, a well-known practitioner in Immigration and Asylum matters from Mansfield Chambers, and she said, and I have seen her skeleton argument of 6 May 2014, that there was a separate, although new, point to be made, resulting from the fact that Mr TA’s father was a Swiss national and that his rights had descended to Mr TA and that if Mr TA was entitled to be admitted to Switzerland and the European economic area as a result of reciprocal arrangements with the European Union then that would be very relevant in his article 8 application here.[8]So armed with that new point Mr TA’s application was placed before Maurice Kay LJ on the papers, who gave him the necessary extension of time for the purposes of mounting an appeal but refused permission, and what Maurice Kay LJ said is this:
“As I understand it, the applicant’s new point is not that he has a right to remain in EU law but that, by reason of his father’s Swiss nationality, his article 8 claim is somehow enhanced. Quite apart from the fact that this point did not see light of day until after the Upper Tribunal decision, it does not seem to me that it is correct.”
[9]Mr Manohara now says that there are these two points, namely this new point arising from the fact that his father was entitled to residence in Switzerland and indeed had resided in Switzerland and also that Mr TA has now been here for nine years now, that he has never been on benefits, he does suffer from depression and that his article 8 claim is very strong.[10]As I say, Mr Manohara has put those points very forcefully. The difficulty is that this is a second appeal and, as far as Mr Manohara’s second point is concerned, it is no more than seeking to reargue matters which have now already been decided twice. As everybody knows, permission is only granted for a second appeal if there is an important point of principle or practice which has to be defined or some other compelling reason for an appeal to be given.[11]The second ground does not meet those criteria. The difficulty with the first ground is that it is a new point. It does require further findings of fact if it is to be investigated and this court, and indeed the Secretary of State, in regulations has made it clear that new points are not to be entertained if they were not raised before at least the Upper Tribunal and really before the First-tier Tribunal, which is the tribunal which finds the facts.[12]So I am afraid that on that ground alone I do have to refuse permission on ground 1. Maurice Kay LJ said correctly that the point, if it is a point, only goes to enhance the article 8 claim, but it is actually very difficult to see how, in the circumstances, it could be enhanced, despite the attractive way in which Ms Jegarajah puts the matter in the skeleton argument.[13]So I am afraid, having looked at the matter with care, I have to refuse permission to appeal in this case. I know this will be a great disappointment to Mr TA, and indeed to his friend, Mr Manohara, who has advanced his case with great skill, and, as I say, I am very grateful to him.

Order

Application refused