ase No:  C5/2015/1306
Neutral Citation Number: [2016] EWCA Civ 242
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice
Strand 
London, WC2A 2LL

Date: Thursday, 3 March 2016

Before:

LORD JUSTICE SALES
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Between:

AO (NIGERIA)
	
Applicant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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(DAR Transcript of 
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Mrs Polimac appeared on behalf of the Applicant

The Respondent did not attend and was not represented
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Judgment (Approved)
LORD JUSTICE SALES:

1.	This is a renewed oral application for permission to appeal in an immigration case.  he appeal would be a second appeal. 

2.	The appellant came to the United Kingdom on a visitor’s visa in 2006 and was joined then by his wife and their then children, also on visitors’ visas.  The husband and wife overstayed their visitors’ visas and remained in the country unlawfully, having further children when they were here.

3.	The Secretary of State’s decision was that they were not entitled to leave to remain.  They appealed to the First Tier Tribunal.  The reasoning of the First Tier Tribunal was to focus on their son, M, who had, at the time of the decision, been present in the United Kingdom, albeit without leave, for a number of years.  He was a person under the age of 18 years and had lived continuously in the United Kingdom for at least seven years, and therefore fell within the scope of paragraph 276ADE(iv) of the Immigration Rules.  However, there is a proviso to that provision, which is that an entitlement to remain under it depends upon it being shown that it would be unreasonable for the child to be returned to Nigeria.  

4.	The First Tier Tribunal judge held that removing the appellant would interfere with his family life with M (see paragraph 41) and that it would be unreasonable to expect M to leave the United Kingdom to go and live in Nigeria, with which he has limited ties (see paragraph 39).  The First Tier Tribunal judge concluded that based on the idea that M has an entitlement to remain in the United Kingdom, it would be disproportionate to remove the appellant, his father.

5.	The case went on appeal to the Upper Tribunal.  The Upper Tribunal held that there had been an error of law in the assessment made by the First Tier Tribunal.  At paragraph 29 the Upper Tribunal judge said this:  

“Although the judge heard this matter on 23 July, he did not promulgate his determination until October, by which time the Immigration Act 2014 had remained in the 2002 acts by the insertion of Section 117A,B,C, and D.  It was incumbent upon the judge to consider this matter, there being no transitional provisions and the section applying immediately.  In the circumstances, the judge should have either brought the matter back to court or at least invited written submissions from the parties on the issue of whether the new law made any significant difference.  

“At the date of the hearing on 23 July 2014, the judge was required to weigh in the balance the fact that on the one hand none of the appellants had leave and were seeking to remain outside the rules, and on the other hand they would need to show compelling, compassionate circumstances as to why their claim should be admitted outside the rules.  The judge had focused on the best interest of M and accepted that it was unreasonable to expect M to leave the United Kingdom.  That was not to carry out the balancing exercise correctly and the determination gave the impression that the judge regarded M as a trump card.  It was difficult to see how the judge had arrived at the conclusion that M’s interest in continuing his education made it unreasonable to expect him to return with the rest of his family to Nigeria.”

6.	On the footing that the First Tier Tribunal had erred in its approach, the Upper Tribunal then proceeded to remake the decision, this time dismissing the appellant’s appeal.  The appellant seeks to apply for permission to appeal to this court.  Such permission was refused by Underhill LJ on the papers.  So far as concerns the ground relevant for present purposes, namely Ground 1, Underhill LJ said this:  

“1.  Despite the clear and helpful presentation of the grounds and skeleton argument, I do not believe an appeal would have any real prospect of success for the following reasons.

“2.  Ground 1:  If the UT had overturned the decision of the FTT on the basis only of the failure of the FFTJ explicitly to apply Part 5A of the 2002 Act, I agree that would at least arguably have been wrong. The applicant has not challenged the UT’s conclusion that Part 5A had to be considered, even though it had only come into force after the conclusion of the oral hearing.  Odd though the situation is, he is probably right not to do so.  On the face of it, Section 117B merely restates with the added force of statute the approach already approved in the case law, and from which the FFTJ did not, on the face of it, depart.  However, that was not the only basis of his decision.  As I read paragraph 29 of his determination, and indeed as the applicant reads it (see para 1 of his skeleton) the UTJ also held independently of that point that the FTTJ had made a substantive error of law in treating M’s interest as a trump card, and I believe that he was plainly right so to hold.”

7.	On the present application, Mrs Polimac for the applicant focuses her argument on the contention that the Upper Tribunal was wrong to find that there was any error of law in the approach by the First Tier Tribunal judge.  If she is unsuccessful in showing that there is some arguable error by the Upper Tribunal on that basis, she does not seek to contend that the exercise of discretion by the Upper Tribunal when it remade the decision itself is something which could be impugned on an appeal.

8.	The essential question then is that addressed by Underhill LJ as to whether it can be said that the First Tier Tribunal judge erred in his approach.  In my view, there is no real prospect of success on an appeal in this case of showing that the Upper Tribunal judge was wrong to proceed on the basis that there had been an error of law by the First Tier Tribunal judge in relation to his assessment regarding the position of M.  Quite simply, the First Tier Tribunal judge wholly failed to assess what should have been the critical counterfactual situation against which to have made the judgment whether it would be unreasonable for M to be returned to Nigeria. By treating his position independently of the family, the judge did not consider what would be the practical effect for M if not just himself but the whole family were removed back to Nigeria, which was the relevant critical counterfactual position that he should have considered.  That was an error of law and the Upper Tribunal judge was correct to find that it was appropriate for him to set aside the First Tier Tribunal decision and to remake the decision himself. Accordingly, I consider that there is no real prospect of success for the appellant in maintaining that there was an absence of an error of law on the part of the First Tier Tribunal.

9.	So far as concerns the Upper Tribunal’s assessment of the position, I am in agreement with Underhill LJ’s reasoning. He correctly considered that on a proper and fair reading of paragraph 29 of the judgment of the Upper Tribunal, this was the substance of the point being made by the Upper Tribunal judge when he referred to the First Tier Tribunal having regarded M as a trump card without carrying out properly the relevant balancing exercise to be undertaken to assess whether it would be reasonable to require him to be removed to Nigeria or not.

10.	In my view, there is no real prospect of success in persuading this court that the Upper Tribunal judge erred in his assessment of the unlawfulness on the part of the First Tier Tribunal.  Accordingly, I do not consider this is a case where there is a real prospect of success on appeal.  Nor do I consider that there is any other compelling reason to grant permission to appeal.  

11.	Still less do I consider that this is a case that passes the second appeal test which is applicable here.  I do not consider that the appeal would raise an important point of principle or practice and nor is there some other compelling reason for the Court of Appeal to hear it, pursuant to the second appeal test.  

12.	For these reasons, this application is dismissed.

Order:  Application refused