TA (Nigeria) & Ors v Secretary of State for the Home Department

An application framed as an appeal against an Upper Tribunal refusal of permission cannot succeed because section 13 of the Tribunals, Courts and Enforcement Act 2007 bars such an appeal. It may instead be treated as an application for permission to appeal the substantive decision. A second-tier appeal requires an important point of principle or practice, or another compelling reason. Factual disagreement and alleged documentary defects will not meet that threshold without an arguable error of law. Under paragraph 245AA of the Immigration Rules, the Secretary of State has a discretion to request correctly formatted documents, but need not do so where a specified document is missing or the application would fail for other reasons. Lawful discretionary decisions and evaluative findings on scant evidence will not be disturbed.

Three appellants sought permission to appeal after the Upper Tribunal (Immigration and Asylum Chamber) refused permission to appeal to the Court of Appeal. Their underlying application concerned variation of immigration leave to the Tier 1 (Entrepreneur) route, relying on third-party funds and business evidence.

The First-tier Tribunal allowed the appeal, but the Upper Tribunal set aside that decision and remade it, finding that later evidence was inadmissible under section 85A of the Nationality, Immigration and Asylum Act 2002 and that the Immigration Rules were not satisfied. The central issues were whether the application should be treated as a request for permission to appeal the substantive decision, whether the second-tier threshold was met, and whether fairness required further documentary evidence to be requested under paragraph 245AA.

Application refused. Mr Justice Henderson treated the procedurally defective application as an application for permission to appeal the substantive Upper Tribunal decision, avoiding dismissal solely on a technicality.

1. Under section 13 of the Tribunals, Courts and Enforcement Act 2007, no appeal lies from an Upper Tribunal decision refusing permission to appeal to the Court of Appeal. Such a refusal may be challenged by judicial review only on the limited grounds explained in R(Cart) v Upper Tribunal [2011] UKSC 28. Sections 13(4) and (5), however, permit an application to the Court of Appeal for permission to appeal from the substantive Upper Tribunal decision.
2. The more stringent second-tier test under section 13(6) and the relevant Regulations was not met. The appellants’ grounds largely challenged factual findings and disclosed no arguable error of law. The only surviving point, concerning fairness, did not raise an important point of principle or practice and disclosed no other compelling reason for an appeal.
3. Paragraph 245AA of the Immigration Rules gave the Secretary of State a discretion to request corrected documents where documents were submitted in the wrong format. Paragraph 245AA(c) excluded such a request where a specified document had not been submitted or where correction was not expected to result in a grant because the application would fail for other reasons.
4. The Secretary of State had considered that discretion and was entitled to conclude that the application was bound to fail. In particular, no required letter from a legal representative concerning third-party funds had been provided. That was a clear breach of the prescriptive Rules. The alleged common-law duty of fairness did not establish an unlawful exercise of discretion, for which the threshold was high.
5. The Upper Tribunal was entitled to find that evidence admitted by the First-tier Tribunal was inadmissible under section 85A of the Nationality, Immigration and Asylum Act 2002. Its further assessment that the evidence did not establish the required level of employment was evaluative, and the Court of Appeal had no basis to interfere.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 5 November 2015, treated the application as one for permission to appeal the substantive Upper Tribunal decision and refused it.
• Upper Tribunal (Immigration and Asylum Chamber): On 5 November 2014, set aside the First-tier Tribunal’s decision, remade the decision against the appellants, and refused permission to appeal to the Court of Appeal.
• First-tier Tribunal: On 16 June 2014, allowed the appellants’ appeal against refusal of their immigration application.