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

LORD JUSTICE AIKENS: This is a renewed application for permission to appeal following refusal to grant permission on the papers by Sales LJ in his decision of 5 January 2015.

The applicant is a national of Nigeria who was born on 15 May 1959. He entered the United Kingdom on 7 November 1998 on a six-month visit visa. He overstayed the visa visit. He has remained in the UK since then. He has done so using an identity of somebody else, and in the course of the period since the overstay began the applicant has had encounters with the immigration authorities between 2004 and 2006.

The applicant made no formal application to regularise his status on his own identity until he applied for indefinite leave to remain by way of an application form called SET(O) which was completed on 6 July 2012 and sent that day. The application was made on the basis that the applicant had lived in the UK for very nearly 14 years. At the time the application was made the Immigration Rules were about to change and the applicant made the application then knowing that they would change on 9 July 2012. The application was refused in a "Reasons for Refusal" letter dated 7 May 2013 and that was challenged in the First-tier Tribunal. The FTT judge dismissed the applicant's appeal and the applicant then appealed to the Upper Tribunal. The Upper Tribunal rejected the appeal in a judgment given by Deputy Judge IA Lewis on 9 June 2014.

The argument of Mr Burrett, both before the Upper Tribunal and before me this morning, is essentially this: he says that the First-tier Tribunal judge misapplied well-known law in relation to the facts of this case. The principle of law is that where a person is applying for indefinite leave to remain, having spent a long time living in the UK, then the fact that the person has used a false identity in order to evade detection and removal by the immigration services is not a decisive factor that will make a refusal of indefinite leave to remain inevitable. Mr Burrett submits that the failure of the First-tier Tribunal judge to refer to the leading case on this principle, ZH (Bangladesh) [2009] EWCA Civ 8, is indicative of the major error that he made. The judge did refer to the previous decision of Aissaoui [2008] EWCA Civ 37, but, he submits, the failure to refer to the refining case of ZH (Bangladesh) was important.

In my judgment, and I think effectively Mr Burrett accepted this, the case does not raise any point of principle or practice which is a new one. Effectively Mr Burrett founds his submission this morning on the second limb of the rule in respect of second appeals, which is that there is a compelling reason why the Court of Appeal should hear this case. I cannot accept that submission. In paragraph 22 of the judgment of the Upper Tribunal, the judge summarises why the First-tier Tribunal was able to identify key distinguishing features of the case compared with the decisions in Aissaoui and ZH (Bangladesh). The Upper Tribunal judge pointed out that the appellant here went as far as representing to the High Court that he was somebody else. Paragraph 22 of the judgment continues:

Indeed, it is a serious crime. Ultimately, the question of whether or not a person who applies for indefinite leave to remain comes within what was then paragraph 276B(ii) of the Immigration Rules (ie that it would be undesirable for the person to be granted indefinite leave), is a question of judgment. The FTT judge exercised his judgment on the basis of the facts of this case. He had the principles of the base case very much in mind, and the Upper Tribunal was satisfied that there was no error in the application of those.

I am equally satisfied, and therefore in my judgment there is no compelling reason why the Court of Appeal should hear this case, despite the cogent written and oral submissions that Mr Burrett has advanced in support of his application.