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

A tribunal must give an immigration case anxious scrutiny, but an alleged factual mistake does not by itself justify appellate intervention. The decision must be considered as a whole. An error may be immaterial where the tribunal engaged carefully with the evidence and there is no realistic prospect of a different outcome on remittal. A case involving wholesale failure to consider the evidence is materially different. Permission to appeal should be refused where the applicant identifies no important point of principle or practice, and no other compelling reason, particularly where the evidence supporting the decision is overwhelming.

The appellant was lawfully resident in the United Kingdom as a family member of an EU citizen. Following numerous convictions, including robbery and firearms offences, the Secretary of State sought his deportation. The First-tier Tribunal found that his conduct represented a genuine, present and sufficiently serious threat affecting a fundamental interest of society under regulation 21(5)(c) of the Immigration (EEA) Regulations 2006.

The First-tier Tribunal misstated the NOMS assessment of re-conviction risk as high rather than medium and found that the appellant had stalked a prison education worker. The Upper Tribunal considered the risk error immaterial. Before the Court of Appeal, the appellant argued that these matters demonstrated a failure to give anxious scrutiny. The central issue was whether the alleged errors justified permission to appeal.

Permission to appeal refused.

1. The statutory context was regulation 21(5)(c) of the Immigration (EEA) Regulations 2006, which required the appellant’s conduct to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The First-tier Tribunal had found that threshold satisfied.
2. The First-tier Tribunal had described the risk of re-conviction as high, although the NOMS report assessed it as medium. The Upper Tribunal was entitled to regard that mistake as immaterial. Even a medium risk could constitute a present threat in the circumstances.
3. The alleged error concerning stalking did not demonstrate an unsafe decision. The appellant had denied threats and invasion of personal space in his witness statement, but had not expressly denied stalking. In any event, the First-tier Tribunal heard his oral evidence, considered the NOMS report and had to decide where the truth lay in the evidence as a whole.
4. The principle that a tribunal must give anxious scrutiny was correct, as recognised in ML (Nigeria) [2013] EWCA Civ 844. That decision was materially different because the tribunal there had apparently confused the case with another case and referred to non-existent material. The present 57-paragraph decision showed considerable care overall.
5. The mistakes relied on were immaterial, and the evidence of present risk was so strong that there was no possibility of a different conclusion absent those mistakes. The appellant identified no important point of principle or practice, or other compelling reason, for the appeal to be heard.

1. Court of Appeal (Civil Division): On 9 June 2015, Lord Justice Longmore refused permission to appeal.
2. Upper Tribunal (Immigration and Asylum Chamber): Treated the First-tier Tribunal’s description of the re-conviction risk as immaterial and held that a medium risk could constitute a present threat.
3. First-tier Tribunal: Found that the appellant’s conduct represented the requisite serious and present threat and upheld the deportation decision.