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

A second appeal requires a compelling reason for it to be heard. A dispute about whether evidence establishes compliance with maintenance requirements is ordinarily a question of fact, not an issue of law. An appellate tribunal should not convert disagreement with the fact-finder’s assessment, or complaints about the weight given to evidence, into procedural error. Where the evidential flexibility issue was not raised before the First-tier Tribunal, that tribunal could not be criticised for failing to introduce and apply it of its own motion.

Mr O, a Nigerian national, was refused leave to remain as a Tier 1 migrant because the evidence did not establish that he held sufficient maintenance funds. The First-tier Tribunal dismissed his appeal under the relevant rules and under Article 8, rejecting reliance on a bank account apparently held in his brother’s sole name. An Upper Tribunal appeal was dismissed. A second Upper Tribunal set that decision aside because evidential flexibility had not been considered, but on rehearing dismissed the appeal for want of an error of law.

Briggs LJ refused permission for a second appeal on paper on 12 May 2015. The issue before the Court of Appeal was whether the alleged failure to consider or properly weigh the evidence disclosed an error of law and provided a compelling reason for a second appeal.

1. The Court of Appeal agreed with Briggs LJ that the proposed second appeal raised no important point of principle or practice. The question whether the evidence of maintenance funds satisfied the relevant requirements was a simple question of fact. It disclosed no issue of law and no compelling reason for a second appeal.
2. The way in which Mr O presented his evidence was a matter of choice. The material supplied was insufficient to establish a reasonable belief that the bank statement omitted relevant information or was in the wrong format. The First-tier Tribunal therefore committed no procedural error in rejecting the evidence.
3. The First-tier Tribunal had not been invited to consider the evidential flexibility test. It could not properly be criticised for failing, of its own motion, to introduce and apply that test in the applicant’s favour.
4. The appeal was dismissed. The formal order was that the application be dismissed.

• Court of Appeal (Civil Division) — On 18 November 2015, Lady Justice Rafferty agreed with Briggs LJ’s refusal of permission and dismissed the second appeal. The formal order was: application dismissed.
• Upper Tribunal (Immigration and Asylum Chamber) — An earlier decision dismissing the appeal was set aside because the evidential flexibility test had not been considered. On rehearing, the Upper Tribunal dismissed the appeal, finding no error of law in the First-tier Tribunal’s decision.
• First-tier Tribunal — The appeal against refusal of leave to remain was dismissed under the relevant rules and under Article 8. The tribunal found that the evidence did not show that Mr O was a joint holder of the bank account or had sufficient funds.