Kehinde Temilade Ajakaiye v The Entry Clearance Officer, Abuja

A family-visitor right of appeal under section 88A of the Nationality, Immigration and Asylum Act 2002 depends on the purpose for which the entry-clearance application was made. That purpose is ordinarily established from the application form and material submitted with it. Later evidence may undermine the credibility or merits of the application, but does not retrospectively remove a right of appeal which the application disclosed.

Where the application is ambiguous, the tribunal may consider extraneous evidence to clarify its original purpose. Any jurisdictional inquiry at a substantive hearing must be fair and allow representations. An intended visit to a nephew or niece falls within paragraph 2 of the Immigration Appeals (Family Visitor) Regulations 2003.

The appellant, a Nigerian national, applied for entry clearance to visit a sponsor in the United Kingdom for two weeks. Her application described him as her brother-in-law and referred to visiting him and his children.

An Immigration Judge dismissed the appeal on the basis that the relationship was too distant to give a family-visitor right of appeal. The jurisdiction point had not been raised by the respondent or at the screening stage, and the judge made no findings on the respondent’s substantive objections under paragraph 41 of the Immigration Rules.

On appeal, the sponsor explained that he was married to the appellant’s biological sister and that the intended visit was to their family. The central issues were whether the appellant had a statutory right of appeal and, if so, whether she met the visitor requirements.

1. Appeal allowed. The Immigration Judge made a material error of law by deciding, without a fair inquiry, that there was no family-visitor right of appeal. The decision was set aside and remade.

2. Under section 88A(1) of the Nationality, Immigration and Asylum Act 2002, the question is whether the application was made to visit a qualifying relative. The starting point is the application form and the material submitted with it. Later evidence may affect whether the applicant satisfies paragraph 41 of the Immigration Rules, but cannot remove an appeal right disclosed by the original application. An error in identifying that purpose may be investigated by the Upper Tribunal.

3. A jurisdictional objection is normally addressed at screening. If it is pursued at the substantive hearing, the judge must act fairly and permit the appellant or sponsor to address it. Where the original material is ambiguous, extraneous evidence may be received only to clarify the purpose of the application.

4. The application was not ambiguous. It stated that the appellant intended to visit the sponsor and his children. The children were her nephew and niece, who are qualifying relatives under paragraph 2 of the Immigration Appeals (Family Visitor) Regulations 2003. The appellant therefore had a right of appeal. The sponsor’s evidence also confirmed that he was married to the appellant’s sister.

5. On the merits, the Tribunal found on the balance of probabilities that, at the date of decision, the appellant met the disputed requirements of paragraph 41 of the Immigration Rules. She had adequate proposed maintenance and accommodation, credible funding arrangements, and evidence of an intention to return to her studies in Nigeria. Her appeal against the Entry Clearance Officer’s refusal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the Immigration Judge’s decision for material error of law, and remade the decision by allowing the appeal against refusal of entry clearance.
• First-tier Tribunal: Immigration Judge I F Taylor dismissed the appeal, concluding that no valid family-visitor appeal lay because the relationship was too distant.