OU (Nigeria) & Ors v Secretary of State for the Home Department

Under rule 298 of the Immigration Rules, a claimed blood relationship falls within “relative”. Other possible categories, including relationship by marriage to a blood relation or relationships created by adoption or legal guardianship, were identified but their full scope was left open.

Where an application relies on a claimed blood relationship, a tribunal may dismiss it on materially inconsistent evidence and the absence of other evidence establishing the relationship. An alleged error about the wider meaning of “relative” is immaterial where the case was put solely on blood relationship and that relationship was not established.

Three Nigerian appellants appealed from a determination of the Asylum and Immigration Tribunal concerning applications for indefinite leave to remain under rule 298 of the Immigration Rules. They relied on an alleged aunt-and-uncle relationship with Mr and Mrs Achonna, with whom they had lived in the United Kingdom.

Immigration Judge Kopieczek dismissed the applications because the claimed blood relationship was not established. Senior Immigration Judge Moulden considered that the first judge might have treated “relative” as confined to blood relationship, but held that any such error was immaterial. The central issue was whether the evidence established the claimed relationship and whether any wider relationship could be relied on.

Lord Justice Buxton gave the judgment, with Lord Justice Hooper and Lady Justice Hallett agreeing. The appeal was dismissed.

1. Meaning of “relative”. Rule 298 of the Immigration Rules includes blood relationship. Relationships by marriage may also be relevant where the marriage is to a blood relation. Relationships created by operation of law, such as adoption or legal guardianship, may constitute further categories. The court declined to determine the full scope of “relative” because only blood relationship had been relied on and no adoption or legal guardianship arose on the facts.
2. Assessment of the evidence. The evidence contained a material inconsistency. Mr Achonna and Nadine asserted an aunt-and-uncle relationship, while Ursula described a different relationship involving her mother’s mother and Mrs Achonna. No other evidence established a blood relationship. The immigration judge was entitled to dismiss the applications and was not required to conduct a further inquisitorial investigation.
3. Materiality of any legal error. Even if the first judge had wrongly confined “relative” to blood relationship, the error was immaterial. The applications had consistently been advanced on the basis of the claimed blood relationship, which had not been proved.
4. New alternative case. An argument based on an informal relationship arising from living together and caring for the children could not succeed. Such a relationship could not readily constitute a formal “relative” relationship under rule 298, and the argument had not been advanced below.
5. The conclusions of both specialist tribunal judges were open to them on the evidence. Neither had made an error of law. Order: appeal dismissed.

1. Asylum and Immigration Tribunal: Immigration Judge Kopieczek dismissed the applications after finding that the claimed blood relationship with Mr and Mrs Achonna had not been established.
2. Asylum and Immigration Tribunal: Senior Immigration Judge Moulden upheld the result, finding that any error in treating “relative” as confined to blood relationship was immaterial.
3. Court of Appeal (Civil Division): The appeal was dismissed.