RP (Zimbabwe) v Secretary of State for the Home Department

In an immigration appeal, inability to obtain entry clearance does not, by itself, establish interference with Article 8 rights. An appellate tribunal must distinguish an error of law from disagreement with the fact-finder’s assessment of the evidence. A judge’s response to a submission is not necessarily a legal error where it did not form the basis of the decision. An application to appeal may properly be granted where there is a real prospect that the only identified error of law was no error at all.

The appellant applied to challenge Senior Immigration Judge Chalkley’s decision to treat findings by HHJ Oakley as an error of law and to order reconsideration. The findings concerned whether the appellant might enter the United Kingdom as a student or under a work permit, and the availability of emotional and financial support in Zimbabwe compared with support from his parents in the United Kingdom.

The central issue was whether Judge Oakley’s observations constituted an error of law, or merely addressed the Secretary of State’s response and involved a factual assessment. The court also considered whether this appeal should be heard with the appellant’s cousin’s related appeal.

1. Application granted. The court considered it arguable, with a real prospect of success, that Senior Immigration Judge Chalkley wrongly identified an error of law in Judge Oakley’s treatment of the possibility of entry as a student or under a work permit. The inability to obtain entry clearance was not, by itself, a ground for finding interference with Article 8 rights.
2. Judge Oakley’s observations were capable of being no more than a response to the Secretary of State’s contention that the appellant could return from time to time under a student visa or work permit. They were not the basis of the decision, which rested on the ties and support available to the appellant and his cousin if they remained in the United Kingdom.
3. The further reasoning about support in Zimbabwe involved a different view of the facts. AH (Sudan) v SSHD EWCA Civ 297 demonstrated the need for extreme care before characterising an error of fact or disagreement with factual findings as an error of law.
4. Since the only identified error of law was arguably wrong, there was a strong argument that no reconsideration in favour of the Secretary of State was justified. The court ordered that the two appeals be heard together because they arose from the same factual context.

• Asylum and Immigration Tribunal: Senior Immigration Judge Chalkley identified an error of law in HHJ Oakley’s determination and ordered reconsideration.
• Court of Appeal (Civil Division) [2008] EWCA Civ 472: the application was granted and this appeal was directed to be heard with the appellant’s cousin’s appeal.