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

On a renewed application for permission to bring a second appeal, permission requires an important point of principle or practice, or another compelling reason. In a deportation case involving a settled migrant, the interaction between the Immigration Rules, the statutory deportation provisions and the principles in Maslov may raise such a point where the tribunal arguably failed to address that interaction adequately. A relationship formed while removal proceedings are ongoing is precarious, even if the person has leave to remain. An alleged misdirection on whether deportation would be unduly harsh may also justify permission where reasonably arguable.

The applicant, a Nigerian citizen convicted of possessing Class A controlled drugs with intent to supply and sentenced to six years’ imprisonment, challenged his deportation. The Upper Tribunal (Immigration and Asylum Chamber) dismissed his appeal on 14 November 2014, following earlier proceedings and a redetermination after a visit to this court in 2010. The applicant renewed an out-of-time application for permission to appeal after permission had been refused by Vos LJ.

The proposed second appeal concerned the application of Article 8 of the European Convention on Human Rights to a settled migrant, including the interaction between the statutory provisions and Immigration Rules, the relevance of Maslov v Austria and The Crown (on the application of Akpinar) v The Upper Tribunal, the alleged precariousness of the applicant’s relationship with his British partner, and the meaning of “unduly harsh”.

1. Permission threshold. A second appeal requires permission because it raises an important point of principle or practice, or because there is some other compelling reason to grant permission.
2. Ground 1. Permission was granted because it was arguable that, although the Upper Tribunal applied the statutory tests and Immigration Rules and was aware of Maslov, it failed adequately to address the interaction between those provisions and the Article 8 principles relevant to settled migrants, including the approach in The Crown (on the application of Akpinar) v The Upper Tribunal.
3. Ground 2. Permission was refused on whether the applicant’s immigration status was precarious when his relationship with his current partner began. Ongoing attempts to deport a person for serious criminal offending made the status precarious, notwithstanding any existing leave to remain. The guidance quoted in AM (Malawi) was accepted as accurate.
4. Ground 3. Permission was granted on the alleged misdirection concerning “unduly harsh”, because that statutory criterion raised an arguable issue.
5. The case was to be expedited so far as the court lists permitted.

• Court of Appeal (Civil Division): On 15 September 2015, in [2015] EWCA Civ 1039, McCombe LJ granted permission on grounds 1 and 3 and refused it on ground 2. The application had been renewed out of time after Vos LJ refused permission on 11 May 2015.
• Upper Tribunal (Immigration and Asylum Chamber): On 14 November 2014, Upper Tribunal Judge Moulden dismissed the applicant’s appeal from the earlier Asylum and Immigration Tribunal decision.
• Earlier Court of Appeal proceedings: Proceedings in 2010 led to a redetermination of the applicant’s case by the Upper Tribunal.