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

LORD JUSTICE LONGMORE: On 20 May 2011, Mr EE was convicted of robbery and having an imitation firearm with intent. He was sentenced to 4 years and 6 months' imprisonment. This was a culmination of criminal activity over the previous four and a half years resulting in 12 convictions for 23 offences including offences against the person, firearms offences and two burglaries.

He was thus a prime candidate for deportation provided that, since he was lawfully resident in the United Kingdom as a family member of an EU citizen, his conduct represented "a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" within regulation 21(5)(c) of the Immigration (EEA) Regulations 2006.

The First-tier Tribunal decided that his conduct did represent that threat. They relied on a NOMS report and said that both the risk of serious harm to others and the risk of re-conviction was high. In fact, the report said the risk of re-conviction was medium.

When the Upper Tribunal considered that mistake on the part of the First-tier Tribunal, they did not consider that material and said that even medium risk is enough to constitute a present threat.

The NOMS report also referred to his stalking of a member of the education staff in prison. He denied that at the First-tier Tribunal hearing and the First-tier Tribunal decided that he had in fact stalked that staff member. One of the reasons they gave for so deciding was that he had not denied it in his witness statement or at any time before the hearing.

The position as to that is that when the Secretary of State made her original decision what was said on her behalf was this:

The First-tier Tribunal in paragraph 32 of their decision said this:

What we see in his witness statement is this:

That relates to the threats and the invasion of the personal space which are the second and third matters in the Home Office decision.

So when Mr Malik says, as he does this morning, that the First-tier Tribunal made an error in saying that he did not contradict that allegation in his witness statement, that seems to me not to be true. He did not contradict it in his witness statement. Mr Malik says if one reads the paragraph as a whole, he must have intended to do so. That seems to me a very questionable proposition.

The fact is that it seems to me very doubtful that the First-tier Tribunal made any error at all in this respect, but, if it did misunderstand the fact that he had denied on an early occasion, nevertheless they had to make their ecision in the light of his giving oral evidence to them and the First-tier Tribunal had to decide whether or not the stalking had occurred. They had his evidence. They had the NOMS report. As they say, the staff member who made the allegation had no vested interest in falsely implicating the Appellant. The truth of the matter is that the First-tier Tribunal had to decide where the truth lay in the light of his evidence in general.

Mr Malik, now the third counsel to be instructed, says that those two errors show that no anxious scrutiny was afforded by the First-tier Tribunal, but overall the 57 paragraph decision shows very considerable care.

He relies on the case of ML (Nigeria) [2013] EWCA Civ 844 in which this court emphasised, as it often does, that the First-tier Tribunal and indeed any Tribunal must give the case before them anxious scrutiny. That, of course, is right.

It seems to me that this First-tier Tribunal, despite the mistakes that they may have made (as I say, that is very doubtful in relation to the stalking matter), there are overall immaterial mistakes and that if the matter were remitted to another Tribunal the conclusion would be exactly the same.

The case of ML (Nigeria) was a case where obviously no proper consideration had been given by the First-tier Tribunal. They had apparently muddled it up with some other case. They referred to skeleton arguments that did not exist. They referred to interviews that did not exist. They referred to harm suffered specifically by the Appellant in that case from the Sri Lankan authorities that did not exist and must have come from some other case.

When I inquired of Mr Malik whether leave had permission to appeal had been granted on the papers, he in that case said that it had been and I cannot say that I am at all surprised.

But so far as this case is concerned, it seems to me that Mr Malik is unable to point to any important point of principle or practice or other compelling reason for the appeal to be heard and that Lloyd Jones LJ was right when he pointed out in his paper refusal when he said "the totality of the evidence of present risk was so strong that there is no possibility but for the errors the Tribunal might have come to a different conclusion."

That is so obviously right that I must refuse permission to appeal in this case.