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

In an Article 8 immigration case outside the Immigration Rules, proportionality requires identification of the weight to be given to public policy expressed in the relevant Rules and balancing it against the other relevant factors. The weight and factors vary with context. A phrase such as “unjustifiably harsh consequences” does not, without more, establish a distinct legal test or justify a second appeal, particularly where it was used while criticising the first-instance decision. A challenge that is in substance to the Upper Tribunal’s proportionality assessment does not raise an important point of principle or practice merely because its language might be criticised.

The applicant, a Nigerian national, challenged removal to Nigeria with his family. The First-tier Tribunal dismissed his appeal under the Immigration Rules but allowed it under Article 8. The Upper Tribunal allowed the Secretary of State’s appeal, found an error of law in the First-tier Tribunal’s proportionality approach, and remade the decision against the applicant.

The applicant renewed his application for permission to appeal. He argued that the Upper Tribunal had applied “unjustifiably harsh consequences” as an improper test and had failed to assess adequately his private life, family circumstances and the public interest. The central issue was whether a second appeal raised an important point of principle or practice, or another compelling reason.

Disposition

The renewed application for permission to appeal was refused. The applicant had to show an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear a second appeal.

1. Article 8 approach. The proper approach to an Article 8 application outside the Rules had been established in Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387. The decision-maker must identify the weight to be given to the public policy expressed in the substantive part of the relevant Rules and balance it against the other factors relevant to the Article 8 assessment. The weight attached to the Rules and the relevant factors may vary with the context.
2. Meaning of the Upper Tribunal’s language. “Unjustifiably harsh consequences” appeared in the Upper Tribunal’s discussion and criticism of the First-tier Tribunal’s reasoning, rather than in the course of stating its own decision. There was some force in the argument that the Upper Tribunal might have treated the phrase as an important, possibly exclusive, test. However, the absence of an explicit reference to the public interest in the relevant Rules was not necessarily an error, since the Tribunal was entitled to take that public interest as given in the context.
3. Insurmountable obstacles. R (Agyarko and Others) v SSHD [2015] EWCA Civ 440 explained that “insurmountable obstacles” was a criterion within the Rules and a factor to be considered, rather than an absolute requirement in every case. Although the expression differed from that used by the Upper Tribunal, the established Article 8 approach supplied the necessary guidance.
4. Second appeal. The challenge was in substance an attempt to attack the Upper Tribunal’s assessment of proportionality. Possible criticism of the Tribunal’s expression did not convert the case into an important point of principle or practice, and no other compelling reason justified a second appeal.

• Court of Appeal (Civil Division): Refused the renewed application for permission to appeal in [2015] EWCA Civ 1183.
• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, held that the First-tier Tribunal had erred in law in its Article 8 proportionality assessment, and remade the decision against the applicant.
• First-tier Tribunal: Dismissed the appeal under the Immigration Rules but allowed it on Article 8 grounds.