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

Permission to appeal from the Upper Tribunal requires a point of law and either an important unresolved point of principle or practice with a real prospect of success, or another compelling reason. A disagreement with factual findings does not meet that threshold where the First-tier Tribunal reached a conclusion reasonably open to it and no error of law is shown. Permission was therefore refused.

The applicant, a Nigerian national, sought a residence card as the dependant nephew and extended family member of a Spanish EEA national. The Secretary of State refused the application for insufficient evidence of dependency. The First-tier Tribunal dismissed his appeal under the EEA Regulations 2006 and in reliance on article 8 of the European Convention on Human Rights. The Upper Tribunal dismissed his further appeal, finding no error of law. The central issue on the renewed application was whether the proposed appeal disclosed an arguable point of law warranting permission.

Lord Justice Moore-Bick delivered the single judgment.

1. Permission threshold. An appeal from the Upper Tribunal lies only on a point of law. Permission requires either an important point of principle or practice which has yet to be decided and a real prospect of success, or another compelling reason for the Court of Appeal to hear the appeal.
2. Application of the threshold. The critical issues before the First-tier Tribunal were whether the applicant had been dependent on his uncle or had been a member of his household in Nigeria and after arriving in the United Kingdom. Those were issues of fact. The applicant identified no error of law in the Upper Tribunal’s decision, and there were no grounds for contending that the First-tier Tribunal had reached a conclusion that was not reasonably open to it.
3. Article 8. Although the applicant relied on article 8 of the European Convention on Human Rights, that issue had no real application because there was no current move to remove him from the United Kingdom.
4. Disposition. There was no important point of principle or practice, no real prospect of success, and no other compelling reason to hear a further appeal. The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division): On a renewed application, refused permission to appeal, finding no error of law and no compelling basis for a further appeal. [2016] EWCA Civ 687.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal on 27 May 2014, holding that the First-tier Tribunal had taken the evidence into account and reached sustainable conclusions on the factual issues.
• First-tier Tribunal: Dismissed the appeal against the Secretary of State’s refusal of the residence-card application, finding the evidence insufficient and not credible on dependency and household membership.