AF (child appellant; representation and instructions) Nigeria

A child’s statutory immigration appeal must be brought by the child or by someone legally authorised to act for them. A relative cannot create that authority merely by funding an application or producing documents. When a child is represented, the representative and Tribunal must consider whether the child can understand the proceedings and give instructions, with suitable explanation, and must consider the position of a parent or guardian. A litigation friend is not automatic: the need for one depends on the child’s capacity. These checks also serve a safeguarding purpose, since documents and apparent family support alone do not establish authority or protect against exploitation.

The appellant, a 13-year-old child in Nigeria, applied for entry clearance to join his British citizen maternal cousin in the UK. His solicitors lodged the application and appeal on instructions from the cousin and her mother, who were relatives living in the UK. They had not spoken to the appellant, his father or his maternal grandmother, said to be his guardian. The Entry Clearance Officer refused the application, and the First-tier Tribunal dismissed the appeal for want of jurisdiction after the solicitors’ lack of instructions from the appellant or an authorised person became clear.

On appeal, the child challenged the fairness of that process, the finding that the representatives lacked authority, and the decision to dismiss rather than record that there was no valid appeal. He also sought to rely on later evidence and applied for a litigation friend. The central issues were whether the appeal had been properly brought on the child’s behalf and whether the First-tier Tribunal had materially erred in law.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no error of law and stands. The anonymity order continued.

2. Under section 82 of the Nationality, Immigration and Asylum Act 2002, the right of appeal lies against refusal of the claim made by the appellant. A third party cannot confer authority on themselves to exercise a child’s appeal. A parent or guardian may act for a minor, and a child who is competent to instruct may do so directly. The Tribunal has no inherent jurisdiction beyond its statutory powers: Da Silva Pinho (FtT - jurisdiction) [2025] UKUT 00317 (IAC).

3. Representatives acting for a child must carry out proper due diligence to establish that instructions come from the child or someone legally authorised to act for them. The apparent credibility of documents, a passport or the provision of biometrics does not by itself establish authority. The Tribunal emphasised the safeguarding risks to children, particularly where the claimed family relationship is disputed.

4. A litigation friend is not required in every case involving a child. Representatives and the Tribunal must consider whether the child can understand, with appropriate explanation, the issues requiring a decision or consent. A young person with sufficient understanding and intelligence to understand what is proposed may be able to instruct directly: Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; [1986] AC 112; Masterman-Lister v Brutton & Co (nos 1 and 2) [2003] 1 WLR. The guidance in R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 64 (IAC) requires case-by-case consideration for applicants aged 12 to 15, including capacity, parental assistance, local authority involvement and vulnerability. Here, no capacity assessment had been made and the application for a litigation friend did not address the child’s capacity or his father’s position. The Tribunal declined to infer incapacity from age alone.

5. The First-tier Tribunal’s process was not procedurally unfair. The judge raised the issue of authority, allowed counsel to take instructions, and counsel accepted that the solicitors had not been instructed by the child, his father or his grandmother. On those facts, there was no requirement to hear evidence from the UK relatives or adjourn the hearing.

6. The later evidence did not establish a material mistake of fact. Under E and R v SSHD [2004] EWCA Civ 49, a mistake must concern an existing fact, be established and objectively verifiable, not be attributable to the appellant or advisers, and have played a material part in the reasoning. Fresh evidence is generally subject to the principles in Ladd v Marshall [1954] 1 WLR 1489. The grandmother’s evidence could have been obtained earlier and did not establish that the solicitors had authority to act. The possibility of making a fresh entry-clearance application was relevant to whether those principles should be relaxed, consistently with Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 27. The new evidence was not admitted.

7. It was open to the First-tier Tribunal to dismiss an appeal brought without standing. In any event, even if the proper course had been to record that no valid appeal existed, that error would not have been material. The Secretary of State for the Home Department v Devani [2020] EWCA Civ 612 concerned the onward right of appeal and did not alter that conclusion.

1. Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal; the First-tier Tribunal’s decision stands for want of material error of law. [2026] UKUT 274 (IAC)
2. First-tier Tribunal: dismissed the appeal for want of jurisdiction; decision promulgated on 8 June 2025.