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

LORD JUSTICE MOORE-BICK: This is a renewed application for permission to appeal following my refusal of the original application on paper. The appellant, Mrs Wilson, seeks permission to appeal against the order of the Upper Tribunal dismissing her appeal against the decision of the First-tier Tribunal, which itself dismissed her appeal against the Secretary of State's refusal of her application for leave to remain in the United Kingdom.

Mrs Wilson is a citizen of Nigeria, now in her mid 50s, who claims to have entered this country unlawfully in 2002 and to have remained here unlawfully thereafter. She initially lived and cared for her sister, who is disabled, and she has subsequently been living with her daughter and her grandchildren, all of whom live in this country.

In December 2011 Mrs Wilson was arrested and detained and served with a notice of liability to removal from the United Kingdom under the Immigration Act 1971. In January 2012 she applied for leave to remain in the United Kingdom under Article 8 of the European Convention on Human Rights and because of what were said to be exceptional circumstances justifying her being granted leave to remain.

The application was initially refused in February 2012, but following a claim for judicial review the Secretary of State agreed to reconsider it. After reconsideration, however, the Secretary of State dismissed the claim under the Immigration Rules on the basis that Mrs Wilson failed to meet the requirements of paragraph 276ADE and Appendix FM which had been added to the rules on 9th July 2012, in order to codify the principles governing the determination of claims based on Article 8. However, the new rules were subject to transitional provisions, by which an application submitted before 9th July 2012 were to be decided in accordance with the law as it stood on 8th July 2012 and so the new rules did not in fact apply to her case.

The Secretary of State also considered whether Mrs Wilson's character and conduct while in this country, in particular the fact that she had been caring for her sister, amounted to exceptional circumstances of a kind that would justify granting her leave to remain outside the Immigration Rules. However, she decided that it did not. Accordingly, on 29th April 2013 the Secretary of State refused leave to remain.

Mrs Wilson appealed to the First-tier Tribunal. Unfortunately, that Tribunal also wrongly applied the rules in their amended form and held that she was unable to satisfy their requirements. However, it did go on to consider her claim under Article 8 applying the well-known five-stage test set out in the case of R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. Having done so, the First-tier Tribunal found that the decision to remove Mrs Wilson from this country was proportionate to the legitimate aim of maintaining a fair and effective immigration system and so it dismissed he

When the appeal came on for hearing before the Upper Tribunal, it was accepted by Mrs Wilso r appeal.

Mrs Wilson applied for leave to appeal to the Upper Tribunal. It was granted on a single ground, namely, that the First-tier Tribunal had arguably erred in law by deciding the case in accordance with the Immigration Rules in force from 9th July 2012. n’s legal representative that her case could not succeed under the Immigration Rules themselves, but it was said that her claim under Article 8 of the Convention ought to succeed. The Tribunal found that both the Secretary of State and the First-tier Tribunal had in fact given due consideration to Mrs Wilson's case outside the scope of the Immigration Rules, and that the First-tier Tribunal in doing so had directed itself correctly in accordance with the decision in Razgar. Neither the Secretary of State nor the First-tier Tribunal had made any reference to the decisions post-dating the introduction of the new rules. To the extent that the First-tier Tribunal had made a mistake assuming that the new rules applied to the present case, that error was not material because it had nonetheless considered her case in accordance with the law that was actually in force on the date of the application and the conclusions it reached were therefore open to them on the facts. The Upper Tribunal therefore dismissed Mrs Wilson's appeal.

Mrs Wilson now seeks permission to appeal to this court on the grounds that the Upper Tribunal erred in failing to hold that the First-tier Tribunal had made a material error of law in applying the wrong Immigration Rules. She also says that the Upper Tribunal failed to hold that First-tier Tribunal had erred in not attaching enough weight to the evidence adduced by her in support of her case that there were exceptional reasons in this case for granting her leave to remain, in particular in the light of her caring for her sister.

Mrs Wilson, who has appeared on her own behalf this morning, has explained to me how she feels about the prospect of being removed to Nigeria and the circumstances which led her to be living in this country. I have some sympathy for her plight, but, as I have tried to explain to her, the function of this court on an application of this kind is very limited and I do not have the power to review her case on the merits.

It is true that when considering her appeal against the Secretary of State's decision to refuse leave to remain under the Immigration Rules the First-tier Tribunal erred in law by applying the rules in the form in which they existed from 9th July 2012. But that error was immaterial because it considered her case by reference to the general rules of law which properly applied in her case; in other words it considered her appeal on both footings. In my view, therefore, an appeal on this ground would have no real prospect of success.

The argument that the First-tier Tribunal erred in law in concluding that removal would not involve a disproportionate interference with her Article 8 rights really comes down to no more than a disagreement with the Tribunal's decision on the evidence before it.

This is an application to appeal against the decision of the Upper Tribunal and the applicant must therefore satisfy the court that an appeal would raise a point of principle or practice or that there is some other compelling reason for this court to hear a further appeal. It seems to me that the argument that the First-tier Tribunal should have reached a different conclusion on the question of proportionality is not one which raises an important point of principle or practice. But in any event, the Tribunal applied the correct test and it is not suggested, nor could it be, that its decision was perverse. For those reasons I do not think that an appeal on that ground would have any real prospect of success either.

For all those reasons permission to appeal must be refused.