Secretary of State for the Home Department v Paul Nixon

An application for permission to appeal must identify the alleged errors of law clearly, coherently and with sufficient particulars. Formulaic assertions that a tribunal merely “erred” are inadequate. A more careful approach may be required for unrepresented parties, for Robinson-obvious points, and where important rights are engaged.

Challenges to a first-instance tribunal’s credibility findings will normally succeed only on irrationality. An appellate tribunal must not interfere merely because a different view of the evidence is possible. Where the findings, inferences and allocation of weight were rationally open to the tribunal, no material error of law is established.

The Secretary of State refused Mr Nixon leave to remain on Article 8 ECHR grounds. The First-tier Tribunal allowed his appeal, finding that he lived with his wife in a genuine and subsisting relationship.

The Secretary of State obtained permission to appeal to the Upper Tribunal. The permission grant focused on the First-tier Tribunal’s assessment of witnesses’ credibility and the adequacy of its reasons. The Upper Tribunal considered whether those matters disclosed an error of law, and also addressed the required quality and scope of grounds seeking permission to appeal.

1. Appeal dismissed. The First-tier Tribunal’s decision was affirmed. Its conclusion that Mr Nixon and his spouse were living together in a genuine and subsisting relationship was rationally open to it on the documentary and oral evidence.
2. The Secretary of State’s challenge was, in substance, one of irrationality. A first-instance tribunal’s credibility assessment will rarely justify permission to appeal save on that basis. The Upper Tribunal found no demonstrable error, overlooked material evidence, or irrational allocation of weight. The reasons given, together with findings readily inferred from the determination, were sufficient.
3. The application for permission had not identified any recognisable, particularised error of law. It used the bare assertion that the judge had “erred”. That did not meet the standards required by Rule 24(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. If a permission judge cannot confidently identify the asserted error, permission should be refused.
4. The court recognised qualifications for unrepresented parties and for obvious points arising under the Refugee Convention or ECHR, following R v Secretary of State for the Home Department, ex parte Robinson [1997] 3 WLR 1162. Those qualifications do not excuse poorly formulated grounds advanced by represented parties.
5. The Upper Tribunal added that permission should not normally be granted where an alleged error could not have affected the result, absent a point of public importance. On the facts, permission should not have been granted because the grounds fell materially below the governing threshold.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed and the First-tier Tribunal’s decision was affirmed.
• First-tier Tribunal: Allowed Mr Nixon’s appeal against the refusal of leave to remain based on Article 8 ECHR.