Oredugba v Secretary of State for the Home Department

An appeal withdrawn by counsel is dismissed without determination of its merits. Where an immigration application and the Secretary of State’s response proceed on a shared mistaken premise, the resulting overstay may be considered in any fresh application. The weight to be given to that circumstance remains entirely a matter for the Secretary of State.

The appellant appealed from the High Court concerning an entrepreneur application made on the assumption that he could be financed from abroad. It was later recognised that the applicable rules required funding by an institution in the United Kingdom. The appeal was withdrawn after that error was identified. The appellant argued that the shared mistake had caused him to overstay while pursuing the appeal. The central issues were the disposition of the withdrawn appeal and whether the Secretary of State should have regard to that circumstance in any fresh application.

1. Disposition. The appeal was dismissed on withdrawal by counsel. The court therefore made no determination of the underlying merits.
2. Mistaken premise. Both the application and the Secretary of State’s response had proceeded on the assumption that the appellant could be financed from abroad. In fact, the relevant entrepreneur rules required funding by an institution in the United Kingdom. Had the true position been appreciated, the application would have been misconceived and the appeal would not have been pursued.
3. Effect of the shared error. All parties had contributed to the failure to identify the error. The Secretary of State might therefore consider that fact when deciding what weight to give to the length of any resulting overstay in a fresh application. That observation was not a direction or determination by the court. The matter remained entirely for the Secretary of State.

• Court of Appeal (Civil Division): the appeal was dismissed on withdrawal by counsel: [2014] EWCA Civ 702.
• High Court of Justice, Queen’s Bench Division: decision under appeal; the citation and outcome are not stated in the judgment.