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

When deciding whether it would be unreasonable for a qualifying child to leave the United Kingdom under paragraph 276ADE(iv), the tribunal must assess the relevant critical counterfactual: the practical consequences if the child and the whole family were removed together. It is an error of law to assess the child’s position independently and treat the child’s interests as decisive without carrying out the necessary balancing exercise.

On a second appeal, permission requires a real prospect of success and an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case.

The applicant and his family entered the United Kingdom as visitors, overstayed and later sought leave to remain. The First-tier Tribunal focused on their son, M, who had lived in the United Kingdom for at least seven years and fell within paragraph 276ADE(iv) of the Immigration Rules. It concluded that it would be unreasonable to expect M to leave and that removing his father would be disproportionate.

The Upper Tribunal found an error of law, including failure to conduct the relevant balancing exercise and failure to consider the effect of Part 5A of the 2002 Act, set aside the decision and remade it by dismissing the appeal. The issue before the Court of Appeal was whether there was an arguable error warranting permission for a second appeal.

Application refused. The renewed application did not satisfy either the ordinary real-prospect requirement or the second appeal test.

1. The central error identified by the Upper Tribunal was the First-tier Tribunal’s failure to assess the critical counterfactual relevant to paragraph 276ADE(iv) of the Immigration Rules. The tribunal had considered M’s position independently, rather than asking what the practical effect would be if M and the whole family were removed to Nigeria together. That was an error of law.
2. The First-tier Tribunal had effectively treated M’s position as a trump card and had not carried out the required balancing exercise. The Upper Tribunal was therefore entitled to set aside the First-tier Tribunal’s decision and remake the decision itself.
3. The court agreed with Underhill LJ’s assessment that the applicant had no real prospect of establishing that the Upper Tribunal had erred in law. The court also found no other compelling reason to grant permission.
4. For present purposes, the court accepted the view that Part 5A of the 2002 Act had to be considered despite coming into force after the oral hearing. Any issue concerning the failure to address that legislation did not affect the independently sufficient error concerning M’s position. Section 117B was regarded as restating in statutory form the approach already approved in the case law.
5. The proposed appeal raised no important point of principle or practice and no other compelling reason for the Court of Appeal to hear a second appeal. The application was refused.

• Court of Appeal (Civil Division): Underhill LJ refused permission on the papers. On renewal, Sales LJ refused the application for permission to bring a second appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Found an error of law in the First-tier Tribunal’s approach, set aside its decision and remade the decision by dismissing the appeal.
• First-tier Tribunal: Held that it would be unreasonable to expect M to leave the United Kingdom and that removing the applicant would be disproportionate.