Asiweh v The Secretary of State for the Home Department

A person who expressly asks the Secretary of State to grant leave outside the Immigration Rules must have that request considered, with material supporting it addressed, even briefly. A failure to do so is immaterial on judicial review only where the decision-maker would inevitably have reached the same outcome; probability is insufficient.

For certification under section 94 of the Nationality, Immigration and Asylum Act 2002, merits reasoning may be relied upon, but the certification question must remain distinct. The court examines the substantive integrity of the analysis and may uphold certification where the claim is clearly unfounded and only one view is open. Technical points divorced from a hopeless factual case rarely justify an appeal.

The appellant, a Nigerian national, challenged the refusal of his application to vary his leave to remain. He argued that the Secretary of State had failed to consider residual discretion to grant leave outside the Immigration Rules and had applied the wrong approach to certification under section 94 of the Nationality, Immigration and Asylum Act 2002.

After an oral hearing, Upper Tribunal Judge Jordan refused permission to apply for judicial review in case JR/3123/2016. Permission to appeal to the Court of Appeal was later granted. The central issues were whether the failure to consider residual discretion was material and whether the claim had properly been certified as clearly unfounded.

Appeal dismissed. The Upper Tribunal had erred in holding that the Secretary of State was not required to consider residual discretion, but the error could not affect the result.

1. Residual discretion. The existence of a discretion to grant leave outside the Immigration Rules was not in issue. Under R (Behary & Ullah) v SSHD [2016] EWCA Civ 702, an express request required the Secretary of State to consider exercising that discretion and to address, however briefly, material relied upon in support. The appellant had made such a request, but the December 2015 decision letter showed that it had not been considered. That was an error of law.
2. Materiality. The common-law test of inevitability applied because the claim was brought before 8 August 2016, when section 84 of the Criminal Justice and Courts Act 2015 introduced a statutory test. The test was demanding: probability was insufficient, and the reviewing court could not decide the substantive merits. On the material actually before the Secretary of State, however, it was inevitable that the same conclusion would have been reached. The family’s Nigerian citizenship, ability to return together and continuation of family life and education in Nigeria defeated the Article 8 case. The inability to complete the PhD, after payment of fees and with limited leave, did not amount to Article 3 ill-treatment, particularly as a Tier 4 route remained available.
3. Certification. FR (Albania) and Anr v SSHD [2016] EWCA Civ 605 permitted certification to rely implicitly on the merits reasoning, while requiring separate attention to the certification question. The substantive integrity of the analysis was decisive. Here, the merits reasoning demonstrated that only one view could be taken and that the claim was clearly unfounded. Certification was therefore lawful.
4. Technical points. The Senior President observed obiter that technical errors divorced from the factual merits rarely justify an appeal, subject to a properly disclosed and reasoned ancillary purpose. Lord Justice Irwin expressly endorsed that observation.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 13, dismissed the appeal against the refusal of permission to apply for judicial review.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Jordan refused permission to apply for judicial review after an oral hearing in case JR/3123/2016.