Dr Adeoye Emmanuel Abisoye & Ors v Entry Clearance Officer, Port Louis

A refusal of entry clearance for an application considered under the Points Based System carries a right of appeal limited by section 88A of the Nationality, Immigration and Asylum Act 2002. The available grounds are race discrimination and human rights, not compliance with the Immigration Rules.

Accordingly, an appellant cannot use such an appeal to challenge general grounds for refusal incorporated into the Tier 2 Rules. A claimed lack of career opportunities abroad does not, without more, engage private life under Article 8. Rights under the Community Treaties are a separate statutory ground of appeal and cannot be considered within the limited appeal.

The first appellant, a Nigerian doctor, applied for entry clearance as a Tier 2 Migrant to work as a clinical fellow. His wife and daughter applied as his dependants. The Entry Clearance Officer refused the applications, relying in the first appellant’s case on alleged prior immigration breaches and non-disclosure of an earlier refusal.

An Immigration Judge dismissed the appeals after holding that the first appellant had only a limited right of appeal. The appellants appealed to the Upper Tribunal, contending that the appeal should extend to the Immigration Rules and raising race discrimination, human rights and asserted EEA-rights arguments.

The central issue was whether a refused Tier 2 entry-clearance applicant had a full right of appeal or only the statutory race-discrimination and human-rights grounds.

1. The appeals were dismissed. The First-tier Tribunal had made no error of law, and its decision dismissing the appeals stood.

2. Section 88A of the Nationality, Immigration and Asylum Act 2002, read with article 4 of the Immigration, Asylum and Nationality Act 2006 (Commencement No.8 and Transitional and Saving Provisions) Order 2008, limits an entry-clearance appeal for an application under the Points Based System. Such an applicant may appeal only on the race-discrimination and human-rights grounds preserved by section 88A(3). The first appellant’s Tier 2 application was plainly an application of that kind.

3. The refusal under paragraphs 245ZD(a), 320(7A) and 320(7B) of the Immigration Rules did not enlarge the available appeal grounds. Whether those general grounds for refusal were factually justified was irrelevant to the exercisable appeal. The appropriate route for challenging them was Administrative Review, subject to its stated time limit.

4. There was no evidence of race discrimination. Article 8 was not engaged merely because refusal prevented the first appellant from obtaining desired professional opportunities in the United Kingdom. The Article 3 contention was unsustainable.

5. Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-34/09 did not assist. Community-Treaty rights formed a distinct statutory appeal ground, excluded from the limited appeal; further, the daughter was not in the United Kingdom and the applications were not made in connection with Treaty rights.

6. The second and third appellants’ dependent applications necessarily failed with the first appellant’s application. They raised no separate human-rights or race-discrimination issue.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeals and held that the First-tier Tribunal had made no error of law.
• First-tier Tribunal: Immigration Judge Miles dismissed the appeals, holding that the first appellant’s appeal was limited to race-discrimination and human-rights grounds.