Ifeanyi Damian Ejiogu v The Secretary of State for the Home Department

An appellant who wishes to add grounds to an appeal in the Upper Tribunal must obtain permission. This remains so where a Cart judicial-review claim has resulted in permission to appeal. The application is assessed as any other procedural default. The Tribunal will consider the delay from the expiry of the original appeal time limit, its explanation, the merits of the proposed grounds and the interests of justice.

In a human-rights appeal, the discretionary character of paragraph 322(5) does not itself permit the Tribunal to re-exercise the Secretary of State’s discretion. It matters to proportionality only if the refusal relied on a factor which ought not lawfully to have been relied upon.

The appellant, a Nigerian national, appealed against First-tier Tribunal Judge Shore’s dismissal of his human-rights appeal following refusal of indefinite leave to remain. The refusal relied on substantial differences between self-employed income claimed in earlier Tier 1 applications and income declared to HMRC, and applied paragraph 322(5) of the Statement of Changes in Immigration Rules, HC 395.

Permission to appeal was initially refused. Following a Cart judicial review, that refusal was quashed and permission was granted. The appellant then sought to introduce supplementary grounds challenging paragraph 322(5), the assessment of documentary evidence and the First-tier Tribunal’s credibility findings. The central questions were whether those late grounds should be admitted and whether the First-tier Tribunal had made an error of law.

1. Appeal dismissed. The Tribunal refused permission to rely on the supplementary grounds. An addition to grounds of appeal requires the Upper Tribunal’s permission even after a Cart judicial review under CPR 54.7A. The delay exceeded six months after expiry of the 14-day appeal period. There was no adequate explanation, the grounds were not obviously meritorious, and enlargement was not in the interests of justice.

2. The proposed reliance on the unreported decision in Kadian v SSHD could not assist. Its apparent proposition that understatement of income for tax purposes cannot engage paragraph 322(5) was contrary to substantial authority and depended in part on an incorrect transcription of the Rule. The appellant had also not complied with the Practice Direction’s requirements for citation of an unreported determination.

3. The Tribunal accepted that, once it was accepted that paragraph 322(5) could lawfully be applied to the circumstances, its discretionary character gave no direct ground of appeal in this statutory human-rights appeal. If the paragraph were inapplicable, that unlawfulness would be relevant to proportionality; otherwise the Tribunal could not revisit the Secretary of State’s discretion.

4. Judge Shore’s findings that the appellant was responsible for the substantial understatement of income and that this weighed heavily in the proportionality balance disclosed no error of law. The church and limited voluntary-work evidence could not realistically affect the outcome. The appellant did not meet the Rules and his individual circumstances did not justify leave outside them.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed; no error of law was identified in the First-tier Tribunal’s decision.
• High Court: A Cart judicial-review order quashed the Upper Tribunal’s earlier refusal of permission, leaving the original permission application to be determined.
• First-tier Tribunal: Judge Shore dismissed the appeal against refusal of indefinite leave to remain. The decision was sent on 5 March 2018.