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

LORD JUSTICE MOORE-BICK: This is a renewed application for permission to appeal against a decision of the Upper Tribunal allowing the appeal of the Secretary of State against the decision of the First Tier Tribunal. The First Tier Tribunal had itself allowed the applicant's appeal against the Secretary of State's decision to remove him and his family to Nigeria.

The applicant is a citizen of Nigeria who entered this country as a student in October 2002. He was granted leave to remain as a student and that leave was extended on a number of occasions, eventually expiring on 31 January 2009. On 21 January 2009 he made an application for an extension of his leave, but that was refused in February 2009. An application for further leave to remain was also refused. By December 2009, the applicant's appeal rights had been exhausted and he became an overstayer. He remained an overstayer until 13 May 2010, when he was granted a further period of discretionary leave to remain in order to submit his PhD thesis and complete his degree. The decision to allow him a period of further leave was based on a letter from Newcastle University, where he was studying, which said that a viva voce examination would be held by June of that year, and that his studies were expected to be completed by the end of that month. The Upper Tribunal construed that as a grant of leave to remain until 30 June 2010. There has been some question about that, but it has not been the subject of any of the present application. In the event the University was unable to arrange a viva until September 2010. The applicant remained in this country without making any further application for leave to remain. He was given until the end of April 2011 to submit a revised thesis and eventually did so on 13 May. On 10 June 2011 the applicant applied for leave to remain as a Tier 1 post study work migrant and he obtained an extension of his leave for two years to remain on that basis.

On 28 May 2013 the applicant applied for indefinite leave to remain on the basis of ten years' continuous residence in this country, but that application was refused on the grounds that he had lived here unlawfully without leave for a period between July 2010 and December 2012. The Secretary of State decided to remove him to Nigeria with his family. He appealed against that decision, seeking to rely on certain provisions of the Immigration Rules. He also said that removal would constitute an unlawful interference with his Article 8 rights having regard to a number of matters, including the fact that his eldest child was in full time education, that he himself was qualified to undertake work of a kind which was included on the shortage occupation list, and that he had carried out extensive community and voluntary work.

The First Tier Tribunal dismissed his appeal under the immigration rules but allowed his appeal on Article 8 grounds. The Secretary of State appealed to the Upper Tribunal on the question of Article 8 and in due course the Upper Tribunal held that the First Tier Tribunal had erred in law in its approach to the question of proportionality and proceeded to remake the decision on the basis of the same material. It is right to mention that no further evidence had been adduced before it in relation to that part of the case.

In the course of considering the decision of the First Tier Tribunal, the Upper Tribunal commented that the judge below had either failed to identify any "unjustifiably harsh consequences" that would result for any member of the applicant's family as a result of their removal, or that her decision had turned to a large extent on his uncorroborated assertion that he would be unable to secure employment in Nigeria. It is the use of that expression, "unjustifiably harsh consequences", which plays an important role in the present application.

Having reached the conclusion that the decision of the First Tier Tribunal was flawed, the Upper Tribunal proceeded to remake the decision, in the course of which it considered various aspects of the effects which would be felt by the applicant and his family if they were to be removed. In the end, it held that there was no reason to think that the family would be harmed by being returned to Nigeria, either by reason of a lack of education or the appellant's inability to obtain a job to support his family. It held that there was no reason to think that they could not enjoy family life together in Nigeria, when indeed they might even benefit from contact with an extended family. It also held that there was no reason to suppose that the applicant would be unable to practise his religion freely and work within the community.

The applicant now seeks permission to appeal. Not all the grounds which are set out in the grounds of appeal are pursued and it is sufficient that I identify those that have been impressed on me by Ms Knights on his behalf. Ms Knights has drawn to my attention two decisions of this court which have been given since the date of the Upper Tribunal's decision. The first is the case of Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387, in which the court considered the proper approach to Article 8 applications outside the rules. In paragraph 48 of that decision, Richards LJ, giving the judgment of the court, said this:

The second case to which my attention has been drawn is the case of R (Agyarko and Others) v SSHD [2015] EWCA Civ 440, in which the court considered the use of the expression "insurmountable obstacles" as used in part of the immigration rules in force at the relevant time. Sales LJ in paragraph 24 of the judgment pointed out that the expression "insurmountable obstacles" is a criterion used in the rules to define one of the conditions set out in the particular section with which the court was concerned, but was at pains to point out that it was a factor to be taken into account, not an absolute requirement which had to be satisfied in every case.

Ms Knights on behalf of the applicant has submitted that the assessment of proportionality carried out by the Upper Tribunal in this case was flawed because it applied a test of "unjustifiably harsh consequences" when considering the various factors bearing on the removal of the applicant and his family and because it failed to consider the positive aspects relating to his private life and the disruption to that private life which removal would involve. She has submitted that the balancing exercise which the Tribunal was obliged to carry out was not carried out fairly and that there was a failure to identify and assess the Secretary of State's interest, against which had to be set the factors relating to the private life of the applicant and his family in this country.

I remind myself that this is an application for permission to appeal against a decision of the Upper Tribunal and that the applicant must therefore satisfy me that an appeal would give rise to an important point of principle or practice or that there is some other compelling reason for the court to hear a second appeal. The expression "unjustifiably harsh consequences" was not used by the Upper Tribunal in the course of making its own decision. It was in fact used in the course of discussing and criticising the decision of the First Tier Tribunal, which was found to have been flawed by reason of an error of law. However, I can see some force in the submission that the Upper Tribunal appears to have been using that as at least an important test, if not an exclusive test, and therefore may have applied it in the course of reaching its own conclusion. It is also right to say that there is no reference in the decision of the Upper Tribunal, at least no explicit reference, to the public interest in the relevant provisions of the immigration rules. I have to say, however, that that seems to me to be something which the Tribunal was entitled to take as given in the context of the appeal before it.

The real difficulty as I see it in this case is that the application is for permission to appeal against an assessment of the Upper Tribunal of the proportionality of the removal of the applicant and his family. Ms Knights submits that it would give rise to an important point of principle because the court would be invited to give some guidance on the use of the test "unjustifiably harsh", which she says the Tribunal adopted in this case. In my view, however, the proper approach to an assessment of this kind has now been made clear by the decision of this court in SS (Congo), to which I referred earlier, and although that case was concerned with a different expression, it seems to me that the approach which is to be adopted has been clearly established.

In substance, this is really an attempt, in my view, to challenge the assessment made by the Upper Tribunal. There may be grounds for criticising the way in which the Tribunal expressed itself, though one has to bear in mind that to a considerable degree that may have depended on the way in which the case was put before it, but I am not persuaded that this case would raise an important point of principle or practice and for those reasons I refuse permission to appeal.