TO & OO (Nigeria) v Secretary of State for the Home Department

LORD JUSTICE LLOYD JONES: This is a renewed application by the applicants (to whom I shall refer as Mr and Mrs O as they have been granted anonymity) for permission to appeal to the Court of Appeal, permission having been refused on the papers by Vos LJ on 9 April 2015. They seek permission to appeal against the order of Judge McWilliam promulgated on 9 October 2014 allowing an appeal against the decision of First-tier Tribunal Judge Wyman promulgated on 24 July 2014 in turn allowing an appeal against the decision of the Secretary of State to refuse an application for leave to remain. That application was made on behalf of Mr and Mrs O and their three children.

Mr O came to the United Kingdom in October 2005 with limited leave to remain until January 2007. Mr O is a citizen of Nigeria. His wife is also a citizen of Nigeria. She came to the United Kingdom with their eldest child who was born in 2003 and they joined the first applicant on 22 October 2005 in this country. Since then, they have had two more children. They made an application outside the Immigration Rules in March 2013 for leave to remain on the basis that their oldest child had lived in the United Kingdom for 7 years. That application was refused.

The applicants appealed against the decision of the Secretary of State. Their appeal was allowed by Judge Wyman in the First-tier Tribunal. However, the Secretary of State appealed against that decision and that appeal was allowed by Judge McWilliam in a decision promulgated on 9 October 2014. An application was made to Judge of the Upper Tribunal McGeachie, who refused leave to appeal to the Court of Appeal. An application was then made to the Court of Appeal for permission to appeal. That application was refused in the case of both applicants by Vos LJ on the papers in April 2015. They now renew the application before me.

On the hearing of the appeal by the Secretary of State to the Upper-tier Tribunal, Deputy Upper Tribunal Judge McWilliam reminded herself of the decision in this court in EV (Philippines) v SSHD [2014] EWCA Civ 874 and she set out the relevant passages at length in her determination. The judge considered that the First-tier Tribunal judge had correctly considered the appeal outside the Immigration Rules. However, she considered that the judge below had erred in his assessment of the children's best interests in the Article 8 assessment. In her view, the judge had failed to take account of certain material matters. These included the fact that the parents have no right to continue to be here and that it was clearly in the best interests of the children to remain with their parents. The judge had failed in addition to consider the cost to the State of educating the appellants' children, the fact that the children are relatively young, the fact that there was no finding in relation to their connection to Nigeria, the fact that there was no cogent evidence before the judge in relation to the availability of medical treatment for the younger son in Nigeria or the provision of medication in Nigeria for the three children, and finally, the fact that the appellant and her husband are educated and there is no reason why they would not be able to obtain employment in Nigeria and resume life there with their children, where the appellant's wife has family.

So the judge considered that the First-tier Tribunal's decision was flawed and inadequately reasoned in relation to the best interests of the children. It did not demonstrate why it was overwhelmingly in the best interests of the children to remain in the United Kingdom, that is the eldest and the youngest child, to remain in the United Kingdom, and this tainted the overall Article 8 assessment. Accordingly, she set aside the decision to allow the appeal under Article 8 and proceeded to consider the matter herself. In paragraph 15 of her judgment she came to the conclusion, having regard to all of the factors which she set out in that paragraph, that the decision to remove the appellant and his wife was both proportionate and reasonable.

Before me today, Mr Collins has advanced a number of grounds challenging the decision of the Upper-tier Tribunal. It seems to me that there is a considerable overlap between those grounds and that essentially grounds 1, 2, 4 and 5 deal with the same point. It is said that the judge either failed to take account of relevant considerations in coming to her assessment or that she attached insufficient weight to those considerations.

It is clear to me that the judge did expressly take account of the length of time that the eldest child had been in the United Kingdom. It is also clear that the judge did have regard to paragraph 36 of the judgment of this court in EV. Indeed she set it out in the text of her determination and she applied it. I am afraid that the applicants are simply trying to re-argue their case on the facts on a further appeal. The Upper Tribunal judge had considered the relevant authorities and clearly had in mind the correct legal principles. She did, in my judgment, consider all of the considerations which weighed in favour of the applicants but she simply considered that they were outweighed by the factors weighing the other way.

So far as ground 3 is concerned, this arises out of the statement by the judge at paragraph 15 of her judgment that the eldest child is doing well at school here but that there is nothing unusual about that and there is no evidence that she could not continue her education in Nigeria. Mr Collins suggests that in this passage the judge was actually requiring a higher test to be satisfied than is actually required by the authorities. It is suggested that the judge was requiring it to be demonstrated that there was something unusual which would justify a different conclusion.

The judge here was not defining a test which would have to be met; rather the judge was simply reciting that this was the case. It is purely descriptive and it is accurate. So again it seems to me there is nothing in this ground.

I am satisfied that an appeal would have no real prospect of success. Moreover, in any event, this would be a second appeal and it does not meet the criteria for a second appeal. It does not raise an important point of principle or practice and there is no other compelling reason why the Court of Appeal should hear this case. I realise this will be a real disappointment to Mr and Mrs O, who are present in court today. Of course, it is not for the court to say whether they should remain in this country or not. That is a matter for the Secretary of State. The court has to say whether there has been an error of law or fact or procedural unfairness in the proceedings that have been brought. There would be no point in my granting permission to appeal in this case because I am sure that the appeal could not succeed. So for those reasons the application will be dismissed.