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

Where an appellate tribunal accepts that a material finding was affected by an error of law, it must consider the logical consequences of setting that finding aside. An application for permission to appeal has a real prospect of success where it is arguable that those consequences were not properly addressed. Here, it was arguable that removing a finding about the source of substantial deposits affected the conclusion that there was insufficient evidence of the profitability or assets of the relevant business. Permission to appeal was therefore granted.

The appellant, a student, sought an extension of his leave to remain to undertake a further degree. The Secretary of State considered that he might become dependent on employment or public funds because his uncle, who had previously financed him, had died and funding was said to be available from his wife.

An Immigration Judge rejected the application, finding insufficient evidence of the wife’s business profitability or assets and of the source and availability of two substantial deposits. On reconsideration, Senior Immigration Judge Pinkerton accepted an error of law but concluded that it made no difference to the outcome. The central issue before the Court of Appeal was whether that reasoning failed to address the consequences of the error.

1. Permission granted. Lord Justice Thomas granted the application for permission to appeal. The court did not determine the substantive immigration appeal.
2. The Immigration Judge had rejected the financial evidence on two principal grounds: insufficient evidence of the profitability or assets of the wife’s business, and insufficient evidence that two substantial deposits came from her income or were genuinely available for the appellant’s maintenance, accommodation and course costs.
3. Senior Immigration Judge Pinkerton accepted that the Immigration Judge had made an error of law concerning the deposits, but treated the error as immaterial because the evidence concerning the business remained unsatisfactory.
4. The proposed appeal had a real prospect of success. It was arguable that, if the finding that the deposits did not derive from the business were set aside, the reasoning had to address whether the deposits should instead be treated as evidence that the business was profitable to that extent. The Senior Immigration Judge may therefore have failed to work through the logical consequence of the accepted error.
5. The court granted permission on that short point. The order was: Application granted.

• Court of Appeal (Civil Division): Permission to appeal granted on 15 May 2009.
• Asylum and Immigration Tribunal: Senior Immigration Judge Pinkerton accepted an error of law in the Immigration Judge’s decision but concluded that it made no difference to the result.
• Immigration Judge: The application was refused because the evidence of the wife’s business finances and the source and availability of two substantial deposits was not accepted.