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

I think the strongest argument which the applicant has on this appeal (which would be a second appeal against the decision of the Upper Tribunal) is that, having found that five of the twelve risk factors in TK (Tamils, LP updated) Sri Lanka CG [2009] UKIT 00049 were satisfied, the Upper Tribunal nonetheless concluded for reasons given in paragraphs 22 and 23 of the decision dated 8 April 2009, that the applicant would not be at risk. As Sir Richard Buxton, who in characteristically clear and forthright terms refused permission to appeal on the papers, said at paragraph 3 of his refusal, there is in principle an arguable case that the guidance in TK (Sri Lanka) CG was not followed, a point which Mr Mackenzie, who appears for the applicant, justifiably says is reinforced by the reasoning of this court in MP (Sri Lanka) v SSHD [2011] EWCA Civ 362 - see in particular at paragraphs 10 to 14 and paragraphs 39 to 42 of the judgment of Lloyd LJ.

Accordingly if this was a first appeal I would have thought that there would have been real justification for granting permission to appeal as there would have been a prospect of success. What concerned me when I read the papers, and I have to say still concerns me, is whether this is an appropriate case for a second appeal. That question was determined adversely to the applicant by Sir Richard based on the reasoning of this court in PR (Sri Lanka) [2011] EWCA Civ 988. However, as Mr Mackenzie says, that decision now has to be read in the light of the subsequent decision of this court of JD (Congo) v SSHD [2012] EWCA Civ 327. As he says, “a combination of strong prospects of success and the potentially extreme consequences of removal may suffice to meet the test”, quoting from his skeleton argument.

In my view, this is a borderline case. I think there is a reasonable prospect of success, and the consequences of the applicant’s case being right may mean that there is a real prospect, if he was returned to Sri Lanka, of his being imprisoned and tortured, in the light of the finding that that is what happened to him in the past. In my view, that factor in this case is such that it may well be sufficient to grant permission to appeal.

Having heard Mr Mackenzie and having reached the conclusion that there may well be grounds for granting permission to appeal, I am faced with two alternatives. The first is to adjourn this to a two or three-judge court to consider whether permission to appeal should be granted, because I think this would be a good example of working out the consequences of PR (Sri Lanka) and JD (Congo); the second is simply to grant permission to appeal and let three judges consider the appeal. It seems to me that the second course is preferable. (a) There are now two cases on the principles for permission to appeal in relation to asylum and immigration cases of this sort, and (b) this may be a good opportunity for the court when hearing the appeal to say whether or not permission to appeal should have been granted. If they think permission to appeal should not have been granted, it will be a useful guide for the future. I also feel that, because the consequences could be serious, involving torture or at least mistreatment of a serious nature, it is appropriate if I am in doubt, as I am, to grant permission to appeal rather than to refuse it.

I do not think the appeal should last more than half a day. I would have thought that as usual there should be at least one judge with significant experience of immigration cases and the court could include a High Court judge.