UO (Nigeria) v Secretary of State for the Home Department

LORD JUSTICE RICHARDS: This is an application for permission to appeal against a decision of the Upper Tribunal in an asylum case. The applicant claims to be at risk of persecution in Nigeria on the grounds of his homosexuality.

I have decided to grant permission for the following reasons, briefly stated.

First, I think it is arguable that the Upper Tribunal was in error in finding that the First-tier Tribunal had applied the principles in HJ(Iran) [2010] UKSC 31. The First-tier Tribunal made no reference to that case, and the finding by the Upper Tribunal that the principles of the case were nonetheless applied may be thought to read too much into the decision.

That arguable error would not matter if one could be confident about the correctness of the First-tier Tribunal's finding that the applicant could live openly as a gay in Lagos and it would not be unduly harsh for him to relocate there. The availability of internal relocation was the reason why Jackson LJ refused permission to appeal on the papers. But Mr Bazini has come into the case since then and seeks to mount an attack, by reference to the objective material, on the correctness of the finding this a man can live openly as a gay in Lagos.

His argument faces substantial difficulties, not the least of which is the associated application to this court to admit fresh evidence by way of the objective material that lay behind the Country of Origin Information (COI) report relied upon by the tribunals. The simple answer to the points he advances may be that they are advanced too late; that they should have been deployed in the Upper Tribunal, at least, if they were to be deployed at all. Mr Bazini relies on the principle in E & R [2004] EWCA Civ 49. I say nothing about whether he can get himself within the principle in that case.

The fact is, however, that I have a degree of concern about the return of this applicant to Lagos if the finding that it is safe for a gay to live openly there lacks a solid foundation as, on Mr Bazini's case, it may do. That is obviously a point that goes beyond this individual case and gives rise to a wider concern, especially given the argument that the COI report simply misstates the effect of the underlying material.

In the circumstances I take the view that there exists a sufficiently compelling reason for an appeal to be heard so that the matters raised by Mr Bazini can be considered by the full court. The question whether to admit fresh evidence will be a matter for the full court and is not one that I decide at this permission stage.

So permission is granted. I will direct a court of three judges, one of whom can be a High Court Judge, and a time estimate of half a day.