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

In an Article 8 proportionality assessment, the practical consequences of removal under the Immigration Rules must be considered where they may affect private or family life. Rule 320 may delay a further application for entry clearance or leave to enter for 12 months, five years or 10 years, depending on the circumstances of departure. Those consequences cannot be dismissed as immaterial on the assumption that a person will leave voluntarily and later return. Where the appellate court cannot confidently conclude that the omission made no difference, the misdirection is material and the assessment must be remitted. The remittal remains confined to the permitted ground, preserving findings outside its scope.

The appellant, a Nigerian national who had entered the United Kingdom unlawfully as a minor, developed private and family life here and pursued higher education. Immigration Judge Barton dismissed his appeal against removal on Articles 3 and 8 grounds in a determination arising from proceedings numbered [AIT No. TH/00700/2005].

An earlier Article 8 appeal had succeeded before Immigration Judge Malins, but reconsideration led to a finding of material error and subsequent remittal. Permission to appeal to the Court of Appeal was granted on one ground: whether Barton’s failure to consider Rule 320 and its possible effect on future re-entry and family life was a material misdirection. The Court also had to determine the proper scope of any remittal.

Appeal allowed unanimously. Ward LJ delivered the judgment, with Rix LJ and Moore-Bick LJ agreeing.

1. The failure to consider Rule 320 was a material misdirection. Its practical effect could be significant in the Article 8 proportionality assessment. Depending on the circumstances, voluntary departure could delay a further application for 12 months or five years, while removal or deportation could prevent an application for 10 years.
2. The appellate court could not confidently conclude that the omission would have made no difference. The tribunal needed to examine the costs of returning to Nigeria and later travelling to the United Kingdom, the family’s financial position, and whether the case involved a 12-month or five-year period. It also had to consider the timing of departure in relation to the appellant’s degree, studies and possible employment, the practical reality of maintaining family life through visits, and the prospects and consequences of a future entry application and any Article 8 appeal.
3. The matter was remitted for reconsideration on the basis of Immigration Judge Barton’s decision, having regard to Rule 320. The Court could not reopen findings or issues outside the single ground on which permission to appeal had been granted. Any challenge to the treatment of earlier findings was outside the permitted scope of the appeal.

• Court of Appeal (Civil Division): The appeal was allowed and the matter remitted for reconsideration having regard to Rule 320: [2009] EWCA Civ 1229.
• Asylum and Immigration Tribunal: Immigration Judge Barton dismissed the appeal on reconsideration on 1 September 2008.
• Earlier tribunal proceedings: Immigration Judge Malins had allowed the Article 8 appeal in 2005. On reconsideration, a panel chaired by Senior Immigration Judge Storey found a material error of law in 2006. The matter was later remitted by consent, and Senior Immigration Judge Gill directed a further reconsideration.