RA (A Child : Nigeria) & Anor, R (On the Application Of) v Secretary of State for the Home Department And Anr

An appellate court may interfere with a tribunal’s exercise of a wide discretion only for an error of principle. It must not substitute its own view merely because it might have balanced the factors differently. In deciding whether to order a child’s return after successful judicial review, the tribunal may consider the breach of the statutory welfare duty, evidence obtained after removal, the practical consequences and delay of reconsideration and further proceedings, and the effect of legal aid arrangements on an out-of-country challenge. Permission to appeal requires a real, rather than fanciful, prospect of success or another compelling reason.

The Secretary of State sought permission to appeal from an Upper Tribunal decision in judicial review proceedings brought by RA, a child, and his mother. The Upper Tribunal had found a failure to comply with section 55 of the Borders, Citizenship and Immigration Act 2009 when considering representations concerning the child’s welfare, and ordered that both respondents be returned to the United Kingdom from Nigeria.

The Secretary of State challenged only the return order. She argued that the Tribunal had erred in principle by relying on the child’s position, post-removal evidence, possible future proceedings and legal aid difficulties. The central issue was whether the discretionary relief order had a real prospect of being successfully challenged or whether there was another compelling reason for permission.

1. Disposition. Permission to appeal against the return order was refused, as was a stay of its execution. The underlying grant of judicial review was not challenged.
2. The Upper Tribunal was exercising a wide discretion. An appeal against that exercise could succeed only if the Tribunal had proceeded on an erroneous principle or drawn an inappropriate conclusion from the relevant principles. The appellate court was not entitled to substitute its own view merely because it might have reached a different result. Permission also required a real, rather than fanciful, prospect of success or another compelling reason for the appeal to be heard.
3. The Tribunal was entitled to treat the fact that the case concerned a child, and the finding of a breach of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009, as material to the decision whether to order return. The possible consequences of removal for the child’s welfare were relevant. If the representations had still been under proper consideration, the restrictions in Rule 353A of the Immigration Rules would have prevented removal.
4. The Tribunal could take account of evidence accumulated after removal when assessing the risks of withholding interim relief. It could also consider the practical consequences and possible delay arising from reconsideration and further proceedings, together with the effect of the legal aid regime on the ability to pursue an out-of-country challenge. The weight given to those matters was for the Tribunal. Its decision disclosed no error of principle and no arguable basis for permission.
5. The judge was inclined to regard the Upper Tribunal’s substantive decision as finding a failure properly to consider the child’s best interests, rather than merely a failure to explain the consideration given. That issue was not determinative of the application.

1. Upper Tribunal (Immigration and Asylum Chamber): On 13 April 2015, granted judicial review of the Secretary of State’s decisions and ordered the respondents’ prompt return to the United Kingdom.
2. Court of Appeal (Civil Division): On 22 April 2015, refused permission to appeal against the return order and refused a stay.