Adedoyin v Secretary of State for the Home Department

On an appeal from the Upper Tribunal, the Court of Appeal may intervene only if the Upper Tribunal’s determination contains an error of law. Where the Upper Tribunal has directed itself correctly on its appellate role and reached a conclusion open to it, the Court cannot intervene merely because it might have assessed the First-tier Tribunal’s decision more generously or less generously. A First-tier Tribunal’s evaluative discretion in an Article 8 case is broad, but its critical factual findings must be supported by evidence and must be logically consistent with its other findings. An unexplained contradiction concerning the appellant’s availability to provide care, together with an absence of evidence capable of supporting the claimed level of care, may amount to a material error of law.

The appellant, a Nigerian national, appealed against an Upper Tribunal decision allowing the Secretary of State’s appeal from a First-tier Tribunal decision. The First-tier Tribunal had allowed the appellant’s appeal against refusal of further leave to remain, finding that her removal would disproportionately interfere with family life because of the care she provided to her brother, who had sickle cell anaemia.

The Upper Tribunal set aside that decision for material error of law. It found that the First-tier Tribunal’s findings about the appellant’s work, studies and ability to care for her brother were inconsistent and insufficiently supported. The central issue before the Court of Appeal was whether the Upper Tribunal had been entitled to intervene and whether its determination contained an error of law.

1. Appeal dismissed. The Upper Tribunal had been entitled to find a material error of law in the First-tier Tribunal’s determination.
2. The First-tier Tribunal’s finding that the appellant would care for her brother when she returned from college was inconsistent with its finding that she had for some time stopped studying and had been working. The determination contained no explanation of that inconsistency and no evidence showed whether the appellant worked full-time or part-time, at night or during the day, or otherwise established her availability to provide care.
3. The First-tier Tribunal was entitled to accept some evidence from a witness while rejecting other evidence, but it should explain the basis for accepting the disputed part. Independent evidence established the brother’s sickle cell anaemia, but the material question was the extent and timing of the appellant’s care and what alternatives were available. The finding of a great need for her care was unsupported by the evidence identified in the determination.
4. The Upper Tribunal correctly applied the appellate approach. A lower tribunal’s generous assessment of the facts does not, by itself, establish an error of law. However, the evidence must be capable of justifying the conclusion. The appeal to the Court of Appeal was against the Upper Tribunal’s determination, and intervention required an error of law in that determination. If the Upper Tribunal had directed itself correctly and reached a conclusion open to it, the Court could not intervene merely because it might have taken a different view of the First-tier Tribunal’s decision. The second-appeal test would then be difficult to satisfy.
5. Elias LJ characterised the principal complaint as a perversity challenge, with any reasons challenge being secondary: either the critical finding was not open on the evidence, or any supporting evidence should have been identified. The Upper Tribunal’s conclusion that removal was not disproportionate was consequently unassailable. The Court did not decide whether the Article 8 claim could have succeeded had substantial care by the appellant been established.

• Court of Appeal (Civil Division) [2012] EWCA Civ 939: appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal determination, holding that the First-tier Tribunal had made a material error of law.
• First-tier Tribunal (Immigration and Asylum Chamber): allowed the appellant’s appeal against refusal of further leave to remain on the basis that removal would be disproportionate under Article 8.