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

An error in applying the wrong version of the Immigration Rules does not require permission to appeal where the tribunal also determines the Article 8 claim under the law applicable when the application was made. A further appeal requires a point of principle or practice, or another compelling reason. A complaint that insufficient weight was given to evidence or that the tribunal reached the wrong proportionality conclusion ordinarily challenges the merits only. Where the correct Article 8 approach was applied and the conclusion was not perverse, such disagreement does not meet the permission threshold.

This was a renewed application by a Nigerian citizen for permission to appeal the Upper Tribunal’s dismissal of her appeal against the First-tier Tribunal’s dismissal of her challenge to the refusal of leave to remain. The Secretary of State had refused the application under the Immigration Rules and outside the Rules. Although the application pre-dated amendments made on 9 July 2012, the First-tier Tribunal applied the amended rules. It nevertheless considered the Article 8 claim under the applicable general law and found removal proportionate. The central issues were whether the error concerning the applicable Rules was material and whether the tribunal had wrongly assessed the evidence concerning exceptional circumstances, including care for the applicant’s disabled sister.

Permission to appeal refused. Lord Justice Moore-Bick held that the Court of Appeal’s function on a further appeal from the Upper Tribunal was limited. The applicant had to show that the proposed appeal raised a point of principle or practice, or that there was some other compelling reason for the court to hear it. The court could not simply rehear the merits.

1. The application was governed by the law applicable before 9 July 2012 under the transitional provisions. The First-tier Tribunal therefore erred by applying the amended paragraph 276ADE and Appendix FM. The error was immaterial because the Tribunal also considered the Article 8 claim by reference to the general law properly applicable at the date of application. The ground had no real prospect of success.
2. The First-tier Tribunal had applied the five-stage Article 8 approach identified in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. The Upper Tribunal was entitled to conclude that the claim had been considered both under and outside the Immigration Rules.
3. The challenge to proportionality amounted to disagreement with the tribunal’s assessment of the evidence and the weight to be given to it. It raised no important point of principle or practice and no compelling reason for a further appeal. The correct test had been applied, and the decision was not arguably perverse.

1. Court of Appeal (Civil Division): refused the renewed application for permission to appeal under [2015] EWCA Civ 1089.
2. Upper Tribunal (Immigration & Asylum Chamber): dismissed the applicant’s appeal against the First-tier Tribunal’s decision.
3. First-tier Tribunal: dismissed the appeal against the Secretary of State’s refusal of leave to remain.
4. Secretary of State for the Home Department: refused leave to remain on 29 April 2013.