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

On a second-stage appeal, permission requires a strongly arguable case and circumstances justifying further appellate scrutiny, including serious consequences if permission is refused. In a deportation case on conducive grounds, the public interest in deportation is an essential consideration, even where the case falls below the threshold for automatic deportation. Article 8 and the welfare of affected children must be properly considered, but the presence of a child is not a trump card. A conclusion that deportation is proportionate will stand where it is properly reasoned and open to the tribunal on the facts.

The appellant, a Nigerian national who came to the United Kingdom as a teenager, challenged a decision to deport him following criminal offending. He relied on established family life, including contact with his young daughter, and had succeeded before the First-tier Tribunal. The Upper Tribunal granted permission to appeal, identified an error in the First-tier Tribunal’s approach to the public interest, and reconsidered the matter.

The appellant sought permission for a second-stage appeal. He argued that the public interest had not been sufficiently advanced by the Secretary of State and that the Upper Tribunal had inadequately considered Article 8, section 55 and the effect of deportation on his daughter.

1. Application refused. Applying the second-stage appeal principles discussed in JD (Congo) [2012] EWCA Civ 327, the proposed appeal did not justify permission. The relevant considerations included whether the case was strongly arguable and the consequences if permission were refused.
2. In a deportation case on conducive grounds, consideration of the public interest in deportation is essential. The fact that the case was below the level of offending attracting automatic deportation under the 2007 Act did not remove that requirement. The First-tier Tribunal therefore erred by failing to engage with the public interest, and the Upper Tribunal was entitled to grant permission and reconsider the matter.
3. The Upper Tribunal had properly considered the appellant’s relationship with his daughter, the effect of deportation on her, and the requirements of section 55 in the Article 8 assessment. The daughter’s existence could not operate as a decisive trump card. Although the Upper Tribunal’s suggestion that its conclusion was the only possible conclusion was open to debate, its conclusion was properly open to it on the facts.
4. The principles in OH (Serbia) [2008] EWCA Civ 694, KD (Ivory Coast) [2009] EWCA Civ 934 and Gurung v SSHD [2012] EWCA Civ 62 did not require a different result. Those authorities had to be applied with regard to their particular circumstances.

• Court of Appeal (Civil Division): Refused permission for a second-stage appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Granted permission to appeal, identified an error in the First-tier Tribunal’s failure to address the public interest, and reconsidered the matter.
• First-tier Tribunal: The appellant had succeeded, with the credibility of the witnesses accepted.