US (Nepal) v Secretary of State for the Home Department

Where a tribunal may have applied immigration policy guidance to the wrong factual date or imposed an evidential requirement not clearly justified by that guidance, the proposed appeal may be viable. Guidance not framed as rules may permit a more or less generous application. The Court of Appeal granted the application and allowed perfected grounds to be substituted, without determining whether the appellant qualified for the concession.

The appellant, a Nepalese woman who had worked in domestic service for a Middle Eastern royal family, first sought asylum and later sought permission to remain under a policy concession for workers in her situation. Immigration Judge Lawrence accepted her claim, but that decision was set aside for error of law. On reconsideration, Designated Immigration Judge Woodcraft dismissed the claim. The Court of Appeal considered whether the proposed grounds disclosed an arguable error concerning proof of continuing employment and the relevance of an evidential gap in November 1997, despite evidence relating to the application made in 2004. The appeal arose from the Asylum and Immigration Tribunal, reference OA/13308/2007.

1. Viability of the proposed appeal. The application was viable because it was arguable that the reconsidering immigration judge had made a mirror-image error concerning whether the appellant had proved full-time domestic work immediately before applying for the concession. The question was whether the evidence had been assessed against the correct date.
2. Policy guidance. The relevant IDI had not been placed before the second immigration judge. It was not drafted as a set of rules and might therefore admit of a more or less generous application. It was arguable that the court had been wrong to treat the guidance as requiring proof from an employer of continuing employment in the particular form asserted.
3. Relevant evidence and date. There was written evidence from a current employer relating to the date of the application in 2004. The evidential lacuna identified by the tribunal concerned November 1997, following the asylum interview and service of an illegal entrant notice. It was arguable that November 1997 was not the relevant date for the concession.
4. Order. Permission was given to substitute the Perfected Grounds of Appeal for the existing grounds. The application was granted. The court made no final determination of the underlying immigration claim. If the matter returned, half a day before a three-judge court was considered sufficient.

• Court of Appeal (Civil Division): The proposed appeal was found viable; the Perfected Grounds of Appeal could be substituted and the application was granted. [2008] EWCA Civ 1057
• Asylum and Immigration Tribunal (AIT No: OA/13308/2007): Immigration Judge Lawrence accepted the claim, but the decision was set aside for error of law. On reconsideration, Designated Immigration Judge Woodcraft dismissed it.