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

For a second appeal, an alleged error must satisfy the applicable permission threshold. An “obvious” point is not established merely because it concerns an important entitlement or was abandoned below. Under the Immigration Rules, the continuous five-year residence requirement is read with the policy governing absences. The qualification that absences be short applies to both holidays and business trips. Longer employment-related absences may be considered only under the policy’s exceptional discretion, supported by a clear factual basis.

The applicants, Nigerian spouses, sought indefinite leave to remain under the Immigration Rules and on human rights grounds. The Secretary of State refused the application. The First-tier Tribunal dismissed their appeal after the continuous-residence ground was expressly abandoned, and considered only family life under the rules and Article 8. The Upper Tribunal refused an attempt to revive that ground and concluded that it would fail in any event. The husband renewed his application for permission to appeal, arguing that the [1997] Immigration AR 568 principle should extend to an obvious point abandoned below, and that his business absences did not break continuous residence.

1. Application refused. If an extension of time was required, it was granted. The wife’s position followed that of the applicant husband.
2. The continuous-residence ground had been expressly abandoned before the First-tier Tribunal. The Upper Tribunal was entitled to refuse its revival in the absence of evidence of bad faith, lack of consent, or a fundamental mistake. The applicant invited an extension of the principle in [1997] Immigration AR 568 to an obvious point abandoned below, whether or not with the applicants’ consent. Lord Justice Aikens was not satisfied that the point was sufficiently clear to justify such an extension.
3. Rule 245CD(c) requires a Tier 1 (General) Migrant to have spent a continuous period of five years lawfully in the United Kingdom. Annex B, paragraph 2.1, permits short absences abroad to be disregarded where the applicant has clearly continued to be based in the United Kingdom. The qualification that absences be short applies to both holidays and business trips.
4. Annex B, paragraph 2.3, permits exceptional aggregation or disregard of shortfalls where longer absences result from compelling compassionate grounds or reasons relating to employment or business in the United Kingdom. That discretion concerns continuity broken by absences and does not cure unlawfulness. The applicant’s approximately 826 days abroad, including more than 180 days in three of the five years, did not provide a clear basis for the argument.
5. The application therefore failed to meet the second appeal test. Application refused.

• Court of Appeal (Civil Division): Renewed application for permission to appeal refused on 11 June 2015; any necessary extension of time granted.
• Upper Tribunal (Immigration & Asylum Chamber): Dismissed the appeal from the First-tier Tribunal and refused to revive the abandoned continuous-residence ground.
• First-tier Tribunal: Dismissed the appeal against the Secretary of State’s refusal of indefinite leave to remain.
• Secretary of State for the Home Department: Refused the application under the Immigration Rules and on human rights grounds.