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

In an Article 8 claim based on private life formed through study, the ability to continue studies abroad does not by itself determine whether removal interferes with private life. The tribunal must assess the practical consequences of abruptly ending an established course of study.

A rational assessment that the interruption is sufficiently serious and disproportionate should not be set aside as an error of law. It may be especially material that fraud caused the claimant’s loss of leave, that she acted promptly to remedy it, and that departure would unnecessarily require an out-of-country appeal despite an overlooked right of appeal in country.

The appellant, a Nigerian citizen, entered the United Kingdom as a minor student and continued accounting studies. An immigration adviser fraudulently supplied a passport stamp purporting to grant indefinite leave to remain. After discovering the fraud, she contacted the Home Office and later applied for further student leave.

The Secretary of State refused the application in September 2006. Immigration Judge Woolf allowed the appellant’s human rights appeal on Article 8 grounds. On reconsideration, Immigration Judge Freestone found a material error of law and the Asylum and Immigration Tribunal dismissed the appeal.

The appellant appealed to the Court of Appeal on the discrete issue whether Immigration Judge Woolf had made an error of law by finding that removal would interfere disproportionately with her private life.

1. Appeal allowed. The court restored Immigration Judge Woolf’s order allowing the appellant’s human rights appeal. Hooper LJ gave the judgment, with which Sir Peter Gibson and Wall LJ agreed.

2. Immigration Judge Freestone’s identified error of law was not made out. The relevant private life was the appellant’s established course of study in the United Kingdom. The possibility that she might continue studying in Nigeria did not determine whether removal would interfere with that private life. Immigration Judge Woolf was entitled to give considerable weight to the serious and obvious consequences of bringing her studies abruptly to an end.

3. The respondent’s further challenges failed. The Secretary of State had accepted that the appellant might have a private life, and both immigration judges had proceeded on that basis. Although Immigration Judge Woolf’s assessment was generous, it was not irrational to find consequences sufficiently grave to engage Article 8 and removal disproportionate.

4. The proportionality assessment could properly take account of the fraudulent adviser’s conduct, the appellant’s prompt attempts to resolve her status, and the Home Office’s failure to answer requests about the forged stamp. But for the fraud, she would almost certainly have made the necessary application to remain. Given that she in fact had an overlooked right to bring an in-country immigration-rules appeal, it would surely be disproportionate to require her to leave the United Kingdom to pursue an out-of-country appeal.

• Court of Appeal (Civil Division): Allowed the appeal and restored Immigration Judge Woolf’s order: [2008] EWCA Civ 82.
• Asylum and Immigration Tribunal: On reconsideration, Immigration Judge Freestone found that Immigration Judge Woolf had made a material error of law; the tribunal dismissed the human rights appeal.
• Immigration Judge Woolf: Allowed the appellant’s human rights appeal against the refusal of further leave to remain as a student.