EE (Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWCA Civ 799 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2014 |
| Docket Number | C2/2013/3406 |
[2014] EWCA Civ 799
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Arden
C2/2013/3406
Mr Amnesi appeared on behalf of the Appellant
The Respondent did not appear and was not represented.
This is my judgment on a renewed application for permission to appeal from the order of the Upper Tribunal Judge Latern dated 29 October 2013 dismissing the application of the Appellant for judicial review.
The Appellant is Nigerian. He entered the United Kingdom and claimed asylum on 26 October 1998. He was refused asylum on 2 February 1999. His appeal was dismissed on 4 June 1999 and his appeal rights were exhausted on 2 July 1999. On 4 January 2004, he made an application under Articles 3 and 8 and Schedule 1 to the Human Rights Act 1998. This was refused by the Secretary of State's decision of 20 November 2012. The Appellant was notified of this by letter on 16 January 2013 when he reported.
The decision letter noted that his further submissions were that he had not been served with any notice of the decision regarding his human rights application made in 2004 and secondly, that he had established a private life in the United Kingdom. The first point is not pursued. It is not said that he was not served with notice of the decision.
His applications leading to the decision of the Upper Tribunal were dated 10 November 2010 and 12 April 2011. Only the latter letter has been produced to this court.
The Applicant appears by Mr Amnesi, an advocate, in this court. He has assisted me with his submissions. He submits that the Appellant was entitled to have his application determined under the Rules in force before July 2012 or the Secretary of State applied Rule 276ADE. That is apparent on the face of the decision letter. However, the Secretary of State held that the Appellant did not qualify for leave under this rule. In the course of dealing with this application, the Secretary of State's decision letter stated:
"You have also failed to demonstrate that you have no social, cultural or family ties in Nigeria. It is not accepted that there are no insurmountable obstacles preventing you from continuing with and re-establishing and developing your private life upon return to Nigeria."
Those words can be found at page A46 of the bundle. The words are:
"Preventing you from continuing with and re-establishing and developing your private life upon return to Nigeria."
The Appellant accepts that he was not entitled to leave under the rule which should have been applied in this case because that required 14 years' residence. What the Appellant complains about is that sentence which I have just read.
The submission is that the Secretary of State reversed the onus under Article 8. In my judgment, that is not so. All the Secretary of State was doing in the sentence quoted was tracking the words of 276ADE(vi). These require as follows:
"The requirements to be met by an Applicant for leave to remain on the grounds of private life in the United Kingdom are that at the date of the application the Applicant has lived continuously in the United Kingdom for less than 20 years, but has no ties with the country to which he would have to go if required to leave."
So under this particular sub rule, the onus is on the Applicant. That is, of course, different from the usual situation as on the Appellant's submission. Thus, the decision letter went on to say and in terms:
"You, therefore, fail to fulfil rule 276ADE(vi)."
In short, to say that the Secretary of State reversed the onus is, in my judgment, to misread the passage in the decision letter.
Did the Secretary of State consider Article 8 generally? The position here is that the Appellant's appeal rights had been exhausted. The Secretary of State then decided that the submissions did not amount to a fresh claim. The Secretary of State's decision letter considered that the new submissions taken with the previously considered material did not create a reasonable prospect of success; namely, that an immigration judge applying anxious scrutiny would decide that he would be granted asylum, humanitarian protection or discretionary leave. That means that the Secretary of State did not have to consider the Article 8 claim again. At no point on the hearing of this appeal has the Appellant said that the Secretary of State was wrong in this part of the decision letter.
As I have said, the Appellant was entitled to have his application dealt with under Rule 276 as it stood before changes made in July 2012...
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