Case No: C5/2012/3251 
Neutral Citation Number: [2013] EWCA Civ 533
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[Appeal Nos: OA/25010, 16, 27, 31-11]
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 10 April 2013
 
B e f o r e: 

LORD JUSTICE MAURICE KAY

LADY JUSTICE RAFFERTY

LORD JUSTICE RYDER
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Between: 

SM (AFGHANISTAN)
Applicant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent 
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 (DAR Transcript of 
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Mrs Claire Soltani (instructed by Iris Law Firm) appeared on behalf of the Applicant 
The Respondent did not appear and was not represented  
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J U D G M E N T 
Lord Justice Maurice Kay:  
1.	This is a renewed application for permission to appeal, permission having been refused by Sir Stanley Burnton.  It is plain that although he was refusing permission, he, along with the Upper Tribunal, had a degree of sympathy with the applicant.  So indeed do I.  The issue here is whether she can satisfy the second appeals test. 
2.	I deal with the background very briefly.  She is seeking exemption from the pre‑entry English language test that is prescribed by paragraph 281 of the Immigration Rules.  That exemption applies where an applicant has a physical or mental condition that would prevent him from meeting the requirement of an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State.
3.	In the earlier stages of this litigation the applicant was faced with the disadvantage that some of the material that was produced on her behalf was considered to be false.  However, she has overcome that handicap.  The decision of the Upper Tribunal that was adverse to her focused on one particular document which was not considered to be a false document.  It was advanced on her behalf, in order to seek to satisfy the Tribunal, that she was indeed prevented from meeting the requirement by her mental condition.  Unfortunately she had an accident many years ago when she was aged 9 which has had some long‑term effect on her.  
4.	The document in question -- and it is now the only document relevant to this case -- is written on the paper of the Indira Gandhi Institute of Child Health, which comes under the aegis of the Afghan Ministry of Public Health.  It is signed by Associate Professor Yousozai.  I set it out in full: 
"To whom it may concern! 
Miss [SM] DOB/ 18/3/1971 Medical Certificate 
It is certified that [SM] has complication of memory which she can't learn any other language."
5.	The issue before the Tribunal was whether that document enabled the applicant to satisfy the test of being prevented by her mental condition from meeting the pre‑entry English language test certificate requirement.
6.	The Upper Tribunal placed no importance on the fact that the document is not expressed in perfect English.  One understands that.  However, plainly the Upper Tribunal was not satisfied that it did establish that the applicant was prevented by mental condition from meeting the requirement.  In order to pursue an appeal to this court, it would have to be shown that there was not only an error of law in that conclusion, but that it satisfies the second appeal test.  In my judgment, it does neither.  
7.	It is advanced robustly by Mrs Soltani that there is an important point of principle or practice at issue here.  I cannot accept that.  The test is a simple one: was the applicant prevented by her mental condition from meeting the requirement?  One has to bear in mind what the requirement is.  It is a rudimentary test, not in any way academic.  It is in fact, as I understand it, a less stringent test than the previous post‑entry test which clicked in after two years' residence, and one understands why it would need to be more rudimentary than that given the circumstances in which it has to be satisfied.  
8.	In my judgment, the Upper Tribunal was entitled to take the view that Professor Yousozai's certificate, whilst it is accepted as genuine, does not disclose any familiarity on the part of Professor Yousozai with the nature or standard of the test.  It is one thing to say that "she can't learn any other language", quite another to say that she would be unable to satisfy the rudimentary requirements of this particular test.  
9.	For these reasons I do not think that it can be said that, even if we still applied the first appeal test of a real prospect of success, this application would succeed because I cannot see that there is an arguable error of law with a prospect of success.  What I am completely sure of is that it does not satisfy the second appeals test because it does not raise a point of principle or practice in that sense.  It is entirely fact sensitive.  It is to do with whether the Tribunal was justified in treating Professor Yousozai's certificate as a genuine but insufficient basis for dismissing the appeal.  In my view it was so entitled, and whilst I sympathise with the predicament of the applicant, I am not able to grant her permission to appeal.
10.	As I have said to Mrs Soltani, accepting that the Professor was expressing a genuine opinion, there is no reason why the applicant should not return to him with the details of the current test to see whether he feels able to certify that her limitations are such that she would not be able to cope with that specific test.
11.	Mrs Soltani accepts that possible resolution but observes that things have moved on, the rules have changed and there is now a substantial financial criterion which the applicant may not be able to meet.  I am unable to comment on that.  I simply refuse permission. 
Order:  Application refused