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

At the permission stage, an appeal may proceed where an arguable tribunal error and a substantial concern about the foundation of a safety-related finding amount to a sufficiently compelling reason for a full hearing. Wider significance may reinforce that conclusion. The full court, rather than the permission judge, should determine whether fresh evidence is admissible. The court did not decide the merits of the asylum claim or whether internal relocation was safe.

The applicant, a Nigerian national claiming a risk of persecution because of his homosexuality, sought permission to appeal against an Upper Tribunal decision. The First-tier Tribunal had found that he could live openly as a gay man in Lagos and that internal relocation there would not be unduly harsh. The Upper Tribunal considered that the principles in HJ (Iran) had nevertheless been applied. Jackson LJ had refused permission on the papers, relying on internal relocation.

Before the Court of Appeal, the applicant challenged the evidential foundation of the Lagos finding and sought to adduce fresh objective evidence underlying the Country of Origin Information report. The central issues were whether permission should be granted and whether the fresh-evidence question should be determined at that stage.

1. Permission granted. It was arguable that the Upper Tribunal had erred in concluding that the First-tier Tribunal applied the principles in HJ (Iran) [2010] UKSC 31. The First-tier Tribunal had made no reference to that authority, and the Upper Tribunal may have read too much into its decision.
2. The arguable error might have been immaterial if the finding that the applicant could live openly as a gay man in Lagos, without undue harshness, was clearly correct. The challenge based on the underlying objective material nevertheless raised a substantial concern about whether that finding had a solid foundation.
3. The concern extended beyond the individual case, particularly because it was argued that the Country of Origin Information report misstated the effect of the underlying material. That amounted to a sufficiently compelling reason for the appeal to be heard by the full court.
4. The applicant relied on the principle in E & R [2004] EWCA Civ 49 in support of admitting fresh evidence. The court expressly did not decide whether that principle was satisfied. The question of admitting the fresh evidence was left for the full court.
5. A court of three judges was directed, with a time estimate of half a day.

• Court of Appeal (Civil Division) — permission to appeal against the Upper Tribunal decision was granted and the appeal was directed to be heard by three judges.
• Upper Tribunal — found that the First-tier Tribunal had applied the principles in HJ (Iran) [2010] UKSC 31, despite making no reference to that authority.
• First-tier Tribunal — found that the applicant could live openly as a gay man in Lagos and that internal relocation there would not be unduly harsh.
• Permission stage on the papers — Jackson LJ refused permission, relying on the availability of internal relocation.