US (Nepal) v Secretary of State for the Home Department

Applying the wrong published immigration policy is an error of law, even where neither party draws the correct policy to the tribunal’s attention. The appellate question is materiality: whether applying the correct policy could realistically have altered the result or undermined a decisive finding. A detailed and sustainable credibility finding that independently defeats eligibility may make the error immaterial. A more favourable alternative criterion in the correct policy does not require remittal where the case was advanced wholly on a different factual basis and a different outcome would be unrealistic. An unresolved question of policy construction may be left for another case where it is unnecessary to the disposition.

US (Nepal) v Secretary of State for the Home Department concerned a Nepalese domestic worker who sought leave to remain under the Domestic Workers’ concession, long-residence provisions and article 8 of the European Convention on Human Rights. Her application was refused by the Secretary of State.

Immigration Judge Lawrence allowed her appeal, but his decision was reconsidered. The second Immigration Judge dismissed the appeal, finding that she had not suffered abuse, had not shown the required employment continuity and had not reported abuse within the relevant period. The central issue before the Court of Appeal was whether the tribunal’s failure to apply the December 2002 Immigration Directorate Instructions was a material error of law.

Scott Baker LJ gave the leading judgment. Smith LJ and Ward LJ agreed.

1. Disposition. The appeal was dismissed. Immigration Judge Lawrence had made material errors in fact-finding and reasoning, so the matter was properly reconsidered. The second Immigration Judge had applied the wrong policy, but that error did not justify setting aside his decision.
2. Applicable policy. The December 2002 Immigration Directorate Instructions were the current policy and ought to have been applied. They were more favourable in material respects: claims could be made outside the regularisation period; continuing employment in a domestic capacity could suffice; and fear was an alternative to actual abuse. The failure to apply that policy was an error of law, although the policy had not been drawn to the tribunal’s attention.
3. Materiality. The court had to ask what the result would have been under the correct policy and whether the difference could have made a difference to the outcome. Remittal would be necessary only if the error was arguably capable of upsetting an important finding. The second Immigration Judge had made detailed and compelling findings that the appellant was not credible and had not been abused by her employer. Those findings were sustainable and would have been reached under the correct policy.
4. The alternative criterion of fear did not alter the position. The appellant’s case had consistently been advanced on actual abuse. It was unrealistic to suppose that she would abandon that case and succeed on a separate, lesser claim based only on fear.
5. The court left open the proper construction of the continuity-of-employment requirement in the 2002 Instructions. There were formidable arguments on both sides, but resolution was unnecessary because the finding that no abuse had occurred was unassailable. Order: appeal dismissed.

1. Court of Appeal (Civil Division): On 27 January 2009, the court held that the tribunal had erred in applying the wrong policy, but that the error was immaterial, and dismissed the appeal. [2009] EWCA Civ 208.
2. Asylum and Immigration Tribunal: On 28 March 2008, the second-stage reconsideration dismissed the appeal and found that the appellant had not suffered abuse, had not established continuity of domestic employment and had not reported abuse within the relevant period. [AIT No IA/13308/2007]
3. Asylum and Immigration Tribunal: On 10 October 2007, Immigration Judge Lawrence allowed the appeal. His decision was later found to contain material errors of law and reconsideration was ordered.