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

On an appeal concerning a dependent child, the tribunal may consider any matter relevant to the substance of the decision, including events after the original application. That statutory power is not confined to asylum or Article 3 cases. The applicant’s age, growing maturity and independence may be relevant to whether serious and compelling reasons make exclusion undesirable. A policy instruction cannot restrict the clear statutory power. A challenge which merely seeks to reargue findings open to the fact-finding tribunal is not an error-of-law appeal. Article 8 protection does not require a tribunal to ignore material changes in the applicant’s circumstances.

Three Nigerian siblings entered the United Kingdom as visitors and applied for indefinite leave to remain as dependent relatives of their half-sister and maternal great aunt. The application was refused. An Adjudicator dismissed the appeal, finding no serious and compelling reasons under paragraph 298 of the Immigration Rules and no exceptional circumstances under Article 8. The Asylum and Immigration Tribunal upheld that decision in [AIT No. TH/08972/2004].

On appeal, the siblings argued that the Adjudicator had wrongly relied on the fact that two had reached 18 by the hearing, and had wrongly concluded that the case was not exceptional. The central issues were the effect of section 85(4) of the Nationality Immigration and Asylum Act 2002 and the proper assessment of the dependent-child and Article 8 claims.

1. Appeal dismissed. The Court of Appeal upheld the Tribunal’s conclusion that the Adjudicator had made no error of law.
2. Section 85(4) of the Nationality Immigration and Asylum Act 2002 clearly authorised the tribunal to consider evidence about any matter relevant to the substance of the decision, including matters arising after the original decision. Its operation was not confined to asylum cases or to claims involving Article 3. Section 85(5) established a different rule for appeals against refusal of entry clearance, where the tribunal was restricted to the circumstances existing when the refusal was made.
3. Paragraph 27 of the Immigration Rules prevented refusal of entry clearance solely because an applicant had reached 18 between application and decision. That did not require a tribunal hearing an appeal concerning leave to remain as a dependent child to disregard the applicant’s later age, maturity or independence. Those matters were relevant to the paragraph 298 question whether serious and compelling family or other considerations made exclusion undesirable.
4. The departmental guidance in paragraph 2.3, even if read as the Tribunal had read it, could not override or extend the statute. The Adjudicator had in any event considered several matters, including the siblings’ family circumstances, their mother’s willingness to provide a home in Nigeria, their ages and maturity, and the available alternative of applying from Nigeria with sponsors’ assistance. The decision was not based solely on age.
5. The Article 8 ground was, at most, a challenge to the factual evaluation. The matters relied upon had been addressed by the Adjudicator, and the conclusion that the case was outside the exceptional category identified in M (Croatia) and Huang was open to her on the evidence and consistent with the law as refined in Huang. The court therefore dismissed the appeal.

• Asylum and Immigration Tribunal: dismissed the appeal on 14 December 2005, finding no material error of law in the Adjudicator’s determination of 17 December 2004.
• Court of Appeal (Civil Division): dismissed the appeal and upheld the Tribunal’s decision.