TO & OO (Nigeria) v Secretary of State for the Home Department

Permission for a second appeal requires both a real prospect of success and an important point of principle or practice, or another compelling reason. A challenge to an Upper Tribunal’s Article 8 assessment cannot proceed merely by rearguing the facts or disputing the weight given to relevant considerations where the correct principles were applied. A judge’s observation that a child’s circumstances were not unusual is descriptive unless it is presented as a legal threshold. The Court of Appeal’s role is to identify an arguable legal, factual or procedural error, not to decide whether a family should remain in the United Kingdom.

Mr and Mrs O, Nigerian citizens, applied outside the Immigration Rules for leave to remain with their three children, relying principally on the eldest child’s residence in the United Kingdom for seven years. The Secretary of State refused the application. The First-tier Tribunal allowed the appeal, but the Upper Tribunal allowed the Secretary of State’s appeal, set aside that decision and remade the Article 8 assessment, finding removal proportionate.

The applicants sought permission to appeal to the Court of Appeal. Permission was refused on paper and the application was renewed. The central questions were whether the Upper Tribunal had erred in assessing the children’s best interests and proportionality, and whether its reference to the absence of anything unusual imposed an impermissibly high test.

Lord Justice Lloyd Jones dismissed the renewed application for permission to appeal.

1. Second appeal test. The proposed appeal had no real prospect of success. In any event, it did not raise an important point of principle or practice and disclosed no other compelling reason for the Court of Appeal to hear it.
2. Article 8 assessment. The Upper Tribunal had expressly considered the eldest child’s length of residence in the United Kingdom and had regard to the guidance in paragraph 36 of EV (Philippines) v SSHD [2014] EWCA Civ 874. It had applied the correct legal principles and considered the matters relied upon by the applicants, including the children’s ages, their family circumstances, education and medical evidence, and the parents’ position. The complaint that insufficient weight had been given to those matters was an attempt to reargue the facts, not an arguable error of law.
3. Descriptive observation. The Upper Tribunal’s statement that the eldest child was doing well at school but that there was nothing unusual about this was descriptive. It did not define a legal test or require proof of unusual circumstances before relief under Article 8 could be granted.
4. Judicial function. The Court’s task was to determine whether the proceedings disclosed an error of law or fact or procedural unfairness. Whether the applicants should remain in the United Kingdom was a matter for the Secretary of State. There was therefore no point in granting permission.

• Court of Appeal (Civil Division): renewed application for permission to appeal dismissed, [2015] EWCA Civ 1219.
• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal, set aside its decision and remade the Article 8 assessment.
• First-tier Tribunal: allowed the applicants’ appeal against the Secretary of State’s refusal of leave to remain.
• Secretary of State: refused the application for leave to remain made outside the Immigration Rules.