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

LORD JUSTICE UNDERHILL: This is the oral renewal of an application for permission to appeal against a decision of the Upper Tribunal following refusal on the papers by Gloster LJ.

The Applicants have not attended. A phone call to their solicitors has elicited the information that the Applicants have decided to return to Sri Lanka and it must be assumed abandon the appeal. But because of the risk of some confusion or misunderstanding, I think it better that I deal substantively with the application which I was minded to refuse in any event. I do refuse it and I give my reasons very shortly as follows.

The facts can be sufficiently summarised as follows. The First Applicant and the Third Applicant are Sri Lankan nationals. They applied for leave to remain under the points-based system as an entrepreneurial team. The Second Applicant is the First Applicant's wife and her application is dependent on his.

The Secretary of State refused the application because she was not satisfied that the First and Third Applicants (I will simply say the Applicants for short) had a genuine business. They appealed to the First-tier Tribunal. The Third Applicant gave evidence, but the First Applicant did not. Their appeal to the First-tier Tribunal was dismissed, as was their subsequent appeal to the Upper Tribunal.

There are four grounds of appeal which I will take in turn. The first was that the Secretary of State in her initial decision had acted unfairly by relying on points which had not been put to the Applicants in interview.

This complaint was not taken in the original grounds to the First-tier Tribunal and it is accordingly not considered in the reasons. This is of more than formal importance because there is therefore no analysis of that decision or what the Secretary of State's reasoning was and to what extent it was based on points put or not put in interview. The criticism first emerges in the grounds of appeal to the Upper Tribunal where counsel acknowledged the point had not been taken below but contended that it was "Robinson obvious". Deputy Upper Tribunal Judge Manuell rejected that submission at paragraph 11 of the Upper Tribunal decision, plainly rightly.

The second ground is that the First-tier Tribunal admitted post-decision evidence to rebut points made by the Applicants contrary to the prohibition in section 85A of the Nationality, Immigration and Asylum Act 2002 and the decision of the Upper Tribunal in Ahmed. This is a puzzling ground. It appears to be the Applicants' case that the Third Applicant should not have been allowed to give evidence at all, but it was they who lodged witness statements for the purpose of the appeal and in admitting that evidence the First-tier Tribunal erred, if it did, in their favour. In any event, I can see nothing in the FTT's reasons to show that the judge relied on post-hearing evidence to the prejudice of any of the Applicants.

What appears as the third ground is not really a separate ground at all, but simply a consequence of the other two. I need not deal with it separately.

The fourth and final ground is that Deputy Upper Tribunal Judge Manuell should have recused himself on account of views which he had expressed earlier in the proceedings about a possible adjournment. There is nothing whatever in that ground. Nothing he said on the first occasion made it difficult or would have appeared to an objective observer to have made it difficult for him to consider the issues on the appeal to the Upper Tribunal dispassionately.

For all of those reasons, I would dismiss the renewed application with the result that permission to appeal is definitively refused.