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

On a second appeal, it is insufficient to show merely an arguable error of law. Permission requires an error raising an important point of principle or practice, or another compelling reason. An alleged error is insufficient where it could not realistically have affected the decision. Examining publicly known occupational codes to understand the context is not an evidence-gathering exercise. Where the decisive issue is whether an applicant has demonstrated work at the required skill level, failure to obtain a better contract copy is immaterial if the contract would not resolve that issue. A possible error in criticising an applicant for not giving evidence despite the restrictions in section 85A(4) of the Nationality Immigration and Asylum Act 2002 does not meet the second-appeal threshold without a realistic prospect of material impact.

Three applicants challenged refusals of leave to remain. The first and second applicants relied on the Tier 1 (Entrepreneur) route, while the third applicant applied as the first applicant’s partner. The refusals turned on whether the first two applicants had demonstrated work at the required National Qualification Framework level.

The First-tier Tribunal dismissed the appeals, and the Upper Tribunal dismissed appeals from those decisions on 11 December 2014. The applicants renewed their application for permission to appeal after permission had been refused by the Upper Tribunal and by Elias LJ on the papers. The central issues were whether the alleged errors concerning oral evidence, occupational codes and evidential flexibility raised an important point of principle or practice, or otherwise provided a compelling reason for a second appeal.

The Court of Appeal, McCombe LJ, refused the renewed application for permission to appeal.

1. Second-appeal threshold. It was not enough to establish a merely arguable error of law. The applicants had to show that the alleged error raised an important point of principle or practice, or that there was another compelling reason for permission. The court also considered whether any alleged error had a realistic prospect of making a significant difference to the decision.
2. Occupational codes. The First-tier Tribunal’s examination of publicly well-known occupational codes was an attempt to understand the context of the applications. It was not an evidence-gathering exercise. Although the judge may not have followed best practice precisely, the issue raised no important point of principle or practice.
3. Evidential flexibility. The Upper Tribunal was entitled to conclude that any failure to obtain an acceptable copy of the contract was immaterial. Even if the contract had been admitted, the decisive issue remained whether the applicants had demonstrated activity at the requisite NQF level. The contract would not have made a significant difference to that issue.
4. Failure to give evidence. The court recognised that the First-tier Tribunal judge may have adopted a wrong approach in criticising the applicants for not giving evidence where section 85A(4) of the Nationality Immigration and Asylum Act 2002 restricted the evidence the Tribunal could consider. Nevertheless, the point did not raise an important principle or practice, and there was no sufficient prospect that it would have altered the result. The application was therefore refused.

1. Court of Appeal (Civil Division) — In [2016] EWCA Civ 529, the renewed application for permission to appeal was refused.
2. Upper Tribunal (Immigration and Asylum Chamber) — On 11 December 2014, the Tribunal dismissed the applicants’ appeals from the First-tier Tribunal’s decisions. Permission to appeal was refused on 12 February 2015.
3. First-tier Tribunal — The appeals against the Secretary of State’s refusals of leave to remain were dismissed in a decision dated 17 September 2014 and promulgated on 22 September 2014.

Permission was also refused by Elias LJ on the papers on 23 April 2015.