SM (Ukraine), R (on the application of) v SSHD

LORD JUSTICE LONGMORE: This is an application for permission to make a second appeal in the case of Svitlana Myakota, who comes from Poland. She was born in December 1938 and I am sure she will not mind my saying that, therefore, she is now quite an elderly lady.

On 9 March 2013, she obtained entry clearance to come as a visitor to her daughter in the United Kingdom and had permission to stay here until 9 September 2013. Three days before that permission expired, she applied for further leave to remain, which the Secretary of State refused on 27 September 2013 and she appealed, as she was entitled to do, to the First-tier Tribunal. And on 20 June 2014, First-tier Tribunal Judge Talbot dismissed her appeal. He recorded that he found that the applicant -- from whom he heard evidence through a Russian interpreter, from which it appeared that she lives in the Ukraine where she has her own flat -- has two children, a divorced son in the Ukraine, and a married daughter who has now lived in the United Kingdom for about 14 years. The applicant has visited every year since her daughter has been here.

He recorded her evidence that her son has moved into her flat with her and that over the last few years, he has had alcohol problems and when he is in drink, he beats her and he has done so on about five or six occasions in 2012 and 2013. She finds living with her daughter in the United Kingdom infinitely preferable, for completely understandable reasons.

She says that the First-tier Tribunal judge recorded that she has not been to the police about her son's conduct, as she does not have any faith the police would do anything about the situation; the judge at paragraph 13 says again that the applicant did not want to go to the police, because of the bad experience of a neighbour who had been to the police, and it would only make her situation worse.

When the First-tier Tribunal judge came to make his findings, he said this:

The First-tier Tribunal judge continued by saying:

The applicant then applied for permission to appeal to the Upper Tribunal and she was granted permission to appeal, on the grounds that it would be arguable that it was unjustifiably harsh to return the applicant to live with her son, who is likely to continue to be domestically violent.

And so it was that Deputy Upper Tribunal Judge Holmes came to determine the applicant's case, and he dismissed her appeal on the basis that there was no error of law in the First-tier Tribunal's decision. There was no evidence that the authorities in Ukraine would not protect the applicant against her domestic violence if she were to complain, and he also held that the assessment of the applicant's Article 8 rights by the First-tier Tribunal could not be faulted.

What the First-tier Tribunal had said about that was that it was not satisfied that the conditions for her in Ukraine are so bad that she could not reasonably continue to live there with the direct and indirect support she could receive, and with the option of making regular visits to the United Kingdom.

The judge added, with some considerable reluctance I have to conclude, that at the date of the hearing the respondent's legitimate aim is not outweighed by the extent of the interference with the right to respect for the private and family life of the appellant; and the respondent's decision, therefore, does not violate her Article 8 rights. As I say, that also was upheld by the Upper Tribunal.

Her application for permission to appeal to this court was refused on the papers by Lord Justice Tomlinson and is now repeated orally before me by Mr Edward Cole, under the Direct Access scheme, who has made excellent short submissions on the applicant's behalf. He accepts that this is a second appeal. He therefore has to show that there is some important point of principle or practice or other compelling reason for permission to appeal to be granted.

I regret to say that despite the excellence of his submissions, I am unable to accept them. The main argument he makes is that there is no finding by the First-tier Tribunal, or indeed the Upper Tribunal, as to whether the applicant would in fact seek help from the authorities in Ukraine. The findings are only that she had not done so in the past and she had feared the consequences of doing so. He submits that that is a critical omission in the findings, because a finding in accordance with what he asserts was her evidence, that she would not seek help, would transform the picture and the First-tier Tribunal judge did not consider that transformed the picture, because he omitted to make that finding.

Well, I am afraid that is not an important point on principle or practice; and nor, for the reasons given essentially by the First-tier Tribunal judge, can it be said that it is a very compelling case where some error of law has been made. There is, to my mind, no error of law here by either tribunal. What they had to consider was the position in which this lady found herself.

And although it is true that they do not, in terms, say that she would not seek help, the whole tenor of their decision, as can be seen from the passages that I have quoted, is on the basis that she had not sought help in the past, for the reasons that she gave, and therefore it was most unlikely that she would seek help in the future. And so both tribunals considered the case on that basis. Even if they had not, that could at most be an arguable error of law which does not suffice, for the purposes of a second appeal.

As a subsidiary point, Mr Cole submits that insufficient reasons were given for the Article 8 exercise of proportionality by both tribunals; but again, the evidence was considered by both tribunals. They came to the same conclusion; this is just not an appropriate case for a second appeal.

Of course, it is very hard to have to come to this conclusion, because one quite understands that Mrs Myakota does not want to go back to the Ukraine, if she can avoid it. Nevertheless, there has been no error of law in the consideration of her case, in my judgment, by either the First-tier Tribunal or the Upper Tribunal; and I therefore must sadly refuse permission to appeal.