Fayanju v Entry Clearance Officer

An appeal must be dismissed where it has become academic and no live issue remains for determination. Where an appellant is given repeated opportunities and ample time to provide documents supporting the continued existence of a practical dispute, the court may refuse a further extension and determine the appeal without attendance by the parties. If the appeal has become academic, it should ordinarily be withdrawn; if it is not withdrawn, it should be dismissed.

The appellant challenged the refusal of entry clearance to study information technology. The application had been refused because he had not demonstrated the required English language ability or the ability to maintain his family in Nigeria. His appeal was dismissed by the Asylum and Immigration Tribunal, reconsideration was ordered, and an immigration judge again dismissed the appeal. Permission to appeal was granted, but the respondent later raised that the intended college lacked a sponsor licence and was no longer operating. The appellant claimed that the college continued under another name but did not provide supporting documents despite extensions of time. The central issue was whether the appeal remained live.

1. Appeal dismissed. The court directed that the appeal be heard without the parties’ attendance. The appellant had expressly asked the court to decide the case without attendance and had not attended or obtained representation.
2. The appeal had become academic. The intended metropolitan college did not hold a sponsor licence and was no longer in business. Although the appellant asserted that it operated under another name and that he retained a place on the course, he failed to provide documents substantiating that assertion.
3. The appellant had been given repeated opportunities, including extensions of time and directions requiring him to obtain documents from the college. He had therefore had ample time to produce the material sought. No further extension was justified.
4. The appeal should have been withdrawn once it became academic. As it had not been withdrawn, it had to be dismissed.
5. In the unusual circumstances, the court made no order as to costs.

• Court of Appeal (Civil Division): Appeal dismissed as academic; no order as to costs. [2011] EWCA Civ 574
• Asylum and Immigration Tribunal: The appellant’s appeal was dismissed; reconsideration was ordered and an immigration judge again dismissed the appeal. [AIT No.OA/36158/2008]