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

Factual and Procedural Background

The Appellant entered the United Kingdom on a visitor's visa in 2006, joined by his wife and children, all initially on visitor visas. The family overstayed their visas and remained unlawfully, having additional children while in the country. The Secretary of State decided they were not entitled to leave to remain, prompting an appeal to the First Tier Tribunal (FTT).

The FTT focused on the Appellant’s son, a minor who had lived continuously in the UK for at least seven years and fell within the scope of paragraph 276ADE(iv) of the Immigration Rules. The FTT concluded it would be unreasonable to expect the child to return to Nigeria and that removing the Appellant would disproportionately interfere with family life.

The case proceeded to the Upper Tribunal (UT), which found that the FTT had erred in law by failing to properly consider new statutory provisions introduced by the Immigration Act 2014 and by treating the child’s interest as a "trump card" without conducting the required balancing exercise. The UT quashed the FTT decision and dismissed the appeal.

The Appellant sought permission to appeal to this court, which was initially refused by Underhill LJ. The current application is a renewed oral request for permission to appeal.

Legal Issues Presented

1. Whether the First Tier Tribunal made an error of law in its assessment of the reasonableness of returning the child to Nigeria, specifically by failing to consider the critical counterfactual of the family’s joint removal.
2. Whether the Upper Tribunal correctly applied the Immigration Act 2014 provisions and properly conducted the balancing exercise required by law.
3. Whether there is any real prospect of success on appeal against the Upper Tribunal’s decision.

Arguments of the Parties

Appellant's Arguments

• The Upper Tribunal erred in finding that the First Tier Tribunal judge made an error of law in his approach to the assessment of the child’s position.
• If unsuccessful on the above, the Appellant does not challenge the Upper Tribunal’s exercise of discretion in remaking the decision.

Respondent's Arguments

• The First Tier Tribunal failed to consider the appropriate counterfactual scenario, namely the practical effect on the child if the entire family were removed to Nigeria.
• The Upper Tribunal correctly identified and remedied the error of law by setting aside the FTT decision and remaking it.
• There is no real prospect of success on appeal against the Upper Tribunal’s decision.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined whether the First Tier Tribunal judge erred in law by failing to consider the appropriate counterfactual when assessing the child’s entitlement to remain. The judge treated the child’s position independently of the family, neglecting to assess the practical consequences for the child if the entire family were removed to Nigeria. This failure constituted an error of law.

The Upper Tribunal was correct to identify this error and to undertake the required balancing exercise, including consideration of the new statutory provisions introduced by the Immigration Act 2014. The court agreed with the reasoning of Underhill LJ that the First Tier Tribunal had wrongly treated the child’s interests as decisive without a proper balancing exercise.

Accordingly, the court found no real prospect of success on appeal against the Upper Tribunal’s decision and no compelling reason to grant permission to appeal.

Holding and Implications

The court REFUSED the renewed application for permission to appeal.

The direct effect is that the Upper Tribunal’s dismissal of the Appellant’s appeal stands, with no new precedent established. The decision confirms the necessity for tribunals to consider the relevant statutory provisions and to conduct a proper balancing exercise when assessing immigration appeals involving family life and children’s best interests.