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

For a second appeal, permission requires a compelling reason for the Court of Appeal to hear the case; cogent submissions alone do not suffice. Under paragraph 276B(ii) of the Immigration Rules, whether indefinite leave would be undesirable is a judgment on all the facts. Use of a false identity to evade immigration control is not automatically decisive. It may nevertheless justify refusal where the conduct includes representing to the High Court that the applicant was another person, potentially involving contempt of court and perjury. Failure to cite a leading authority does not itself establish an error of law where the governing principles were understood and applied, and the facts materially distinguish the case.

The applicant, a Nigerian national, entered the United Kingdom on a visit visa in 1998, overstayed, and lived under another person’s identity. He later applied for indefinite leave to remain on the basis of long residence. The application was refused under paragraph 276B(ii) of the Immigration Rules.

The First-tier Tribunal dismissed his appeal and the Upper Tribunal rejected a further appeal. Permission to appeal to the Court of Appeal was refused on the papers by Sales LJ. The applicant renewed his application, arguing that the First-tier Tribunal had misapplied the authorities, particularly ZH (Bangladesh) [2009] EWCA Civ 8. The central issue was whether there was a compelling reason for a second appeal because the First-tier Tribunal had not expressly referred to that authority.

Lord Justice Aikens refused the renewed application for permission to appeal.

1. The application relied on the second-appeal requirement of a compelling reason for the Court of Appeal to hear the case. The case raised no new point of principle or practice, and the applicant did not establish a compelling reason.
2. In an application for indefinite leave under paragraph 276B(ii) of the Immigration Rules, whether grant would be undesirable is ultimately a matter of judgment based on the particular facts. A person’s use of a false identity to evade immigration control is not an automatic or decisive bar.
3. The First-tier Tribunal was entitled to distinguish the earlier decisions in Aissaoui [2008] EWCA Civ 37 and ZH (Bangladesh) [2009] EWCA Civ 8. The applicant had gone further by representing to the High Court that he was another person. That conduct could involve contempt of court and perjury, and was capable of being treated as serious criminal conduct.
4. The absence of an express citation of ZH (Bangladesh) did not demonstrate an error of law. The relevant principles were in substance in the First-tier Tribunal judge’s mind, and the Upper Tribunal was entitled to conclude that they had been applied without error.

The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division): Lord Justice Aikens refused the renewed application for permission to appeal in [2015] EWCA Civ 849.
• Permission stage: Sales LJ had refused permission on the papers on 5 January 2015.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Judge IA Lewis rejected the applicant’s appeal on 9 June 2014.
• First-tier Tribunal: the applicant’s appeal against refusal of indefinite leave to remain was dismissed.