NK (Ethiopia) & Anor v Secretary of State for the Home Department

On an appeal from a specialist immigration tribunal, the Court of Appeal considers errors of law rather than re-hearing factual disputes. Grounds which merely challenge findings of fact do not establish an arguable error of law. Where such grounds have no real prospect of success, an extension of time to renew permission to appeal should be refused because granting it would serve no purpose.

The applicants, Ethiopian brother and sister, claimed asylum and related humanitarian and human-rights relief after arriving in the United Kingdom as tourists. They said that they had monitored Ethiopia’s 2005 general election for the African Initiatives for a Democratic World Order, had been arrested, and feared persecution because they had witnessed and reported electoral irregularities.

An immigration judge accepted that they had monitored the election but rejected their account of arrest and any continuing interest from the Ethiopian authorities. The Asylum & Immigration Tribunal dismissed their appeals on reconsideration. Sir Henry Brooke refused permission to appeal on the papers. The applicants then sought an extension of time to renew that application. The central issue was whether their proposed grounds disclosed an error of law with a real prospect of success.

The application for an extension of time to renew the application for permission to appeal was refused.

1. Relevant jurisdiction. The Court of Appeal was not an immigration court. Its jurisdiction was limited to deciding whether the specialist immigration tribunal had made an error of law. It could not reopen factual findings merely because the applicants maintained that their account was truthful.
2. Merits threshold. The court was prepared to grant the extension if the proposed appeal had merit, without deciding the reasons for delay. However, an extension would be pointless where the proposed appeal had no real prospect of success in law.
3. Application of the threshold. The applicants’ grounds challenged the immigration judge’s assessment of their evidence and the conclusions drawn from the objective evidence, including their passports, subsequent departure from Ethiopia, and the absence of further detention. Their explanation for those matters did not identify any error of law in the tribunal’s reasoning.
4. Result. The tribunal had reached factual conclusions open to it on the evidence. The proposed appeal therefore disclosed no arguable error of law and had no real prospect of success. The application was refused.

1. Court of Appeal (Civil Division): refused the application for an extension of time to renew permission to appeal.
2. Asylum & Immigration Tribunal: on reconsideration, dismissed the applicants’ appeals from the Secretary of State’s refusal of their asylum and related claims ([AIT No: AA/07911/2005]).