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

LORD JUSTICE UNDERHILL: This is a renewed application for permission to appeal following refusal on the papers by Jackson LJ. Mr Bhanji of counsel has appeared for the Applicant and has made his submissions concisely and clearly.

The background can be sufficiently summarised as follows. The Applicant is a national of Sri Lanka. There is a dispute as to how long he has been in this country. He says he has been here since November 2000, but the First tier Tribunal was only prepared to find that he had been here continuously since 2004 -- or perhaps, to put it more accurately, it held that he had not discharged the burden of showing on the balance of probabilities that he had been here continuously since 2004, though it appears to be common ground that he was here for some months in 2000. In 2001 he was issued with a visitor visa valid for 3 years, but he has had no leave to remain since that expired. On 3 July 2012 he applied for indefinite leave to remain on the basis of long residence. That application was refused in May 2013. The Applicant appealed, and by a determination promulgated on 20 November 2013 the First tier Tribunal dismissed his appeal. His appeal to the Upper Tribunal was likewise dismissed by a determination promulgated on 30 April 2014.

The only basis on which it is now contended -- and I think was ever contended -- that the Applicant was entitled to leave to remain was that his removal would be in breach of his rights under Article 8 "outside the Rules". That is so even if the relevant Rules were those applying prior to 9 July 2012, since he had, even on his own account, not been continuously present in the UK for 14 years. That was the basis on which the matter was argued in both tribunals, though later case law has shown that it was incorrect, as Mr Bhanji acknowledges: see Singh [2015] EWCA Civ 74.

The claim under Article 8 "outside the Rules" was considered by the judge in the First tier Tribunal and was rejected. It was relevant to that claim how long the Applicant had been in the UK. The documentary evidence went back only to 2004, but he said that he had been here since November 2000. He called evidence in support of that from a Mr May, who said he had first met the Applicant in the UK in 2000 and also that he had stayed with him in 2001, and from a Mr Cottiland, who said he had first met him here in 2001 and had seen him on a fortnightly basis here ever since. On that basis, said the Applicant, he had established that he had been here for 12 years or so on the date of his application and 13 years at the date of the hearing.

The judge, however, did not accept that. As regards the evidence from the witnesses, both of whom had put in short witness statements, had attended the hearing and, it appears, been questioned, he said this at paragraph 60:

The Applicant argued in the Upper Tribunal that the judge in the First tier Tribunal was not entitled to reject the clear evidence of Messrs May and Cottiland, who he clearly did not intend to find were untruthful. But the Upper Tribunal Judge held that the evidence, even if accepted, did not establish that the Applicant had been here continuously between 2001 and 2004. Indeed, he pointed out that a grant of entry clearance in 2001 makes it clear that the Applicant must have been in Sri Lanka at least at that point. But even in respect of the period between 2001 and 2004 he held that the decision of the First tier Tribunal Judge to proceed on the basis that continuous presence had only been proved since 2004 was a factual finding which was entirely open to him.

Mr Bhanji essentially repeats before me the argument made before the Upper Tribunal, which he says that the judge in the Upper Tribunal was wrong to reject. He says that unless the judge found Mr May and Mr Cottiland to be untruthful witnesses, which he plainly did not intend to do, he was bound to accept their evidence and that their evidence established that there had been continuous presence at least since 2001.

I am sorry to say I cannot accept that. Although the way the judge expresses himself at paragraph 60 may be a little opaque, and possibly inaccurate in small details, it is entirely consistent with the effect of the witness statements which I have seen, which are extremely vague and unparticularised as to the Applicant's presence. He had the advantage of having the opportunity to question them, or hear them questioned. I see nothing surprising in his finding that the witnesses, though intending to be truthful, were simply unreliable on whether the Appellant had been continuously present in the crucial period. Even if it could be said that another judge might have attached more weight to their evidence, a misassessment of the weight on evidence cannot be an error of law.

However, that is not the end of the matter, because even if it were more arguable than I believe it is that the judge in the First tier Tribunal should have accepted that the Applicant had been continuously present here at least since 2001 that would not get him home. The judge said at paragraph 65 of his determination that he would have reached the same result in striking the proportionality balance under Article 8 even if the Applicant had been resident here for 13 years. The judge in the Upper Tribunal made a similar observation.

Mr Bhanji submits that that was plainly wrong. The difference of 4 years was likely to make a very significant difference in the Article 8 assessment and even if the judge had been entitled to reach the conclusion that he did on the basis of 9 years' residence, he was not entitled to reach such a conclusion on the basis of 7 years' residence.

I am afraid I cannot accept that either. It is now well established that in striking the relevant proportionality balance, great weight has to be given to the Secretary of State's assessment of the public interest as shown in the Rules, and compelling circumstances must be shown for leave to remain to be given to someone who does not qualify under those Rules. There were no compelling circumstances here. Even if we are looking at a period of 13 years, for most of that period the Applicant has been here, as he must have known, without leave and working illegally. There was a careful assessment by the First tier Tribunal Judge of the quality and extent of the Applicant's family and private life. He found the evidence in relation to it unsatisfactory and that there were gaps in the evidence which persuaded him that the Applicant had not been altogether truthful.

Thus the question of whether we are looking at a period of 9 years or 13 years is not in any event decisive. That alternative basis on which the First tier Tribunal Judge refused the Applicant's appeal seems to me also to be unimpeachable.

I should say finally that even if either argument were more arguable than I believe that it is, I do not believe that this case would meet the stringent test for permission to be given in a second appeal. The case raises no important point of principle or practice and there are no compelling reasons for an appeal to be heard.

I accordingly dismiss this application.