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

This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice.

The applicant, Mr EE, is a national of Nigeria now aged 26, who entered this country on a student visa in February 2008. In February 2012 he applied for a residence card under the EEA Regulations 2006 as the dependant nephew of a Spanish citizen resident in this country and thus as an extended family member under article 8 of the regulations. He said that he had been adopted by his uncle in Nigeria when he was aged 9, despite the fact that his parents and siblings were apparently all living in Nigeria. The applicant said that his uncle had left Nigeria when he was aged about 11 but had made arrangements for him to live in a flat in Lagos with his aunt. He said that his uncle had moved from Nigeria to Spain, where he acquired Spanish nationality, and later moved to the United Kingdom, where he enjoys rights as an EEA national. The applicant said that his uncle had continued to, and does still, support him, and, for example, had paid his university fees in this country.

In support of his application for a residence card the applicant provided various documents as tending to support his relationship with his uncle and the fact that his uncle still supports him. However, by a decision dated 27 January 2014 the Secretary of State refused his application on the grounds that he had provided insufficient evidence either of dependence on his uncle before he came to this country or thereafter. In doing so she noted that to secure a student visa in 2008 the applicant would have been required to show that he had sufficient funds to support himself and pay his university fees in this country.

The applicant appealed against the Secretary of State’s decision to the First-tier Tribunal, both under the EA Regulations and in reliance upon article 8 of the European Convention on Human Rights, although since there is currently no move to remove him in this country the latter really has no application. The matter came before the First-tier Tribunal for a hearing, at which all the documents on which the applicant wished to rely were made available. Both the applicant and his uncle gave evidence at the hearing.

In a decision dated 16 August 2012 the tribunal dismissed the appeal. It considered that the evidence that had been put forward by the applicant and his uncle, which was designed to establish that he had been dependant on his uncle at the time when he was living in Nigeria, was not credible and that the documents put forward in support of his claim had been “woefully insufficient” to establish his case.

The inquiry before the First-tier Tribunal focused on two broad questions: whether the applicant had been dependant on his uncle or had been a member of his household while he had been living in Nigeria; and whether he had been dependant on his uncle or had been a member of his uncle’s household since he came to this country. Those were questions of fact and the tribunal was not satisfied that his case in relation to either of them had been made out.

The applicant applied for and obtained permission to appeal to the Upper Tribunal, but in a decision promulgated on 27 May 2014 the tribunal dismissed his appeal. It did so on the grounds that the First-tier Tribunal had taken all the evidence into account and had reached a sustainable conclusion on the issues of fact. It had therefore committed no error of law.

The applicant now seeks permission to appeal to this court. His grounds of appeal are quite long, but in substance he says that the evidence that he produced was sufficient to establish his continuing dependency on his uncle and his membership of his uncle’s household. The applicant has appeared on his own behalf on this application and he has explained to me that he put forward all the material which, in his view, was sufficient to satisfy a tribunal of those facts.

At this stage it may be helpful to remind both myself and the applicant that an appeal lies to this court against a decision of the Upper Tribunal only on a point of law and that permission to appeal cannot be granted unless the appeal would raise an important point of principle or practice, which has yet to be decided, and one which has a real prospect of success, or that there is some other compelling reason for the court to hear the appeal.

In this case I am afraid that the applicant has failed to identify any error of law on the part of the Upper Tribunal, let alone one which could be said to involve an important point of principle or practice, and I can see no other compelling reason for this court to hear a further appeal. Indeed it could not do so unless it could identify a question of law arising out of the decision of the Upper Tribunal.

I am afraid that the issues before the First-tier Tribunal which were critical to the determination of his application were issues of fact and there are no grounds for contending that the First-tier Tribunal reached a decision that was not reasonably open to it. For those reasons permission to appeal must be refused.