Ogundimu (Article 8 - New Rules) Nigeria [Upper Tribunal]

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeThe Hon Mr Justice Blake,O'Connor,Blake J,O'Connor UTJ
Judgment Date28 January 2013
Neutral Citation[2013] UKUT 60 (IAC)

[2013] UKUT 60 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)



The President, The Hon Mr Justice Blake

Upper Tribunal Judge O'Connor

Olufisayo Olatuboshun Ogundimu
Secretary of State for the Home Department

For the Appellant: Ms L Hooper, instructed by Lawrence Lupin Solicitors

For the Respondent: Mr S Allan, Senior Home Office Presenting Officer

Ogundimu (Article 8 — new rules) Nigeria

  • 1. The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of time. Where, in such a case, a judge is minded to grant permission, the preferable course is to provide an opportunity to the respondent to make representations. This might be achieved by listing the permission application for oral hearing.

  • 2. The introduction of the new Immigration Rules (HC 194) does not affect the circumstance that when considering Article 8 of the Human Rights Convention “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country very serious reasons are required to justify expulsion.” The principles derived from Maslov v Austria [2008] ECHR 546 are still be applied.

  • 3. Paragraph 399(a) of the Immigration Rules conflicts with the Secretary of State's duties under Article 3 of the UN Convention on the Rights of the Child 1989 and section 55 of the Borders, Citizenship and Immigration Act 2009. Little weight should be attached to this Rule when consideration is being given to the assessment of proportionality under Article 8 of the Human Rights Convention.

  • 4. The natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances.


The appellant is a citizen of Nigeria born on 29 September 1984. He lawfully entered the United Kingdom on 7 July 1991, aged six, in order to join his father, who has been settled and mainly resident here since 196He was granted indefinite leave to remain on the 29 June 1999. He had thus been resident in the United Kingdom for 21 years at the time of the hearing before us and for about three quarters of his life.


The appellant has had a troubled youth with a difficult education history, including significant periods spent in special needs schools. He first appeared before a juvenile court on criminal matters in August 1999, when he was handed a 12 month conditional discharge for obtaining property by deception. He had six further appearances before the juvenile court, being handed a variety of sentences including Supervision Orders, Community Rehabilitation Orders and an Action Plan Order. Between March 2003 and April 2009 he appeared on a further 12 occasions before the criminal courts as an adult, mainly for driving and drug possession offences. These were generally dealt with by way of fines and community penalties.


However, on the 18 December 2008 the appellant was sentenced at the Croydon Crown Court following a plea of guilty to a charge of possessing a Class C controlled drug with intent to supply — namely cannabis. This offence was committed on the 21 October 2008 along with another offence of possessing a Class A controlled drug. The appellant was committed for sentencing to the Crown Court for supplying cannabis, where a sentence of imprisonment for eight months was passed, and forfeiture was ordered of drugs, cash and three mobile phones. On the 24 April 2009 he was dealt with by the Croydon Magistrates for possession of the Class A drugs and given a conditional discharge. This offence was committed at the same time as the matter dealt with at the Crown Court; it is not apparent why the two matters were not dealt with at the same time. It is clear from the information we have seen that, at that time, the appellant had a cocaine addiction that he was supporting by selling cannabis.


On the 8 April 2010 the Secretary of State made a decision to deport the appellant as a persistent offender. He appealed this decision to the First-tier Tribunal. In doing so he relied on the fact of his long residence and that he is the father of, and maintains a relationship with a British citizen child born on the 24 August 2004, JT.


On the 24 June 2010 the appeal was heard by a Panel comprising of FtT Judge Warren Grant and Mr AF Sheward (non-legal member). The appellant did not attend the hearing and no other witnesses gave oral evidence on his behalf. The appeal was dismissed in a determination promulgated on the 29 June 2010. The appellant drafted and lodged his own grounds of appeal against this decision, but permission to appeal was refused by the First-tier Tribunal on the 4 August 2010. It was not renewed to Upper Tribunal within the required time limit. A deportation order was signed against the appellant on the 13 July 2011.


The appellant was detained by the immigration authorities on the 12 September 2011. He subsequently obtained legal representation and on the 19 September and 31 October 2011 representations were made on his behalf in reliance on his family and private life in this country, requesting that the deportation order be revoked. On the 18 January 2012 the Secretary of State made a decision refusing to revoke the deportation order, and certified the appellant's application under section 94 of the Nationality, Immigration and Asylum Act 2002, thus depriving him of a further in country right of appeal to the First-tier Tribunal.


Removal directions were set and the appellant was due to be removed to Nigeria on the 23 February 2012. However, having had yet further representations rejected by the Secretary of State, the appellant brought an application for judicial review on the day he was due to be removed. As a consequence, the Secretary of State deferred the directions made for his removal.


At this stage his present legal team realised that he had not exhausted his appellate remedies from the adverse decision of the First-tier Tribunal and so, on the 5 March 2012, he made an out of time application to the Upper Tribunal for permission to appeal against the decision of the First-tier Tribunal of 29 June 2010. This application was granted by an Upper Tribunal Judge on the 14 March 2012.

The grant of permission to appeal

When granting permission to appeal the judge stated as follows [the names having been anonymised by us]:

  • “3. I have the benefit of very full grounds drawn by experienced counsel. They are all arguable but I am particularly concerned by the ground complaining that the Tribunal gave no reason for attaching no weight to the evidence in the form of (sic) letter to the Secretary of State (the subsequent witness statement was not signed) from one [Ms CT] who introduced herself as the mother of the appellant's son and said that the appellant “has been apart (sic) his life, he sees him regularly and is also responsible for his school and wealthfair (sic)”. Clearly if [Ms CT's] evidence was, or should have been, accepted then it is at least arguable that the determination was deficient.

  • 4. The application is very late. It should have been received no later than 26 August 2010 but it was received on 5 March 2012. A main reason for the application being late is that the appellant acted on advice suggesting a different remedy.

  • 5. My powers in these circumstances are wide. I remind myself that there is at the core of this claim an arguable assertion that the best interests of the child have not been considered properly and I extend time”


Before we became seized of the appeal there had been a hearing before another Upper Tribunal Judge during which the Secretary of State expressed concern at the grant of permission to appeal having been made so long after the expiry of time to renew the application.


We understand those concerns but it is common ground between the parties that:–

  • i. There is no power to revoke a grant of permission to appeal if the judge had power to grant it.

  • ii. The signing of the deportation order did not deprive the judge of the power to grant permission to appeal; section 104(5) of the Nationality, Immigration and Asylum Act 2002 stating that only appeals brought against decisions of the types referred to in sections 82(2) (a), (c), (d), (e) or (f) are to be treated as finally determined upon the making of a deportation order. The appellant appealed to the First-tier Tribunal against a decision of a type referred to in section 82(2)(j) of the 2002 Act.

  • iii. The only remedy available to the Secretary of State to challenge an inappropriate exercise of discretion to extend time and/or grant of permission to appeal is by way of judicial review. That course had been considered in this case and a decision was made not to challenge it.


Nevertheless, we consider it appropriate to make some observations about the grant of permission to appeal out of time. The appellant was required, by rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 [“2008 Rules”], to make his application for permission to appeal to the Upper Tribunal no later than seven working days after the date on which the First-tier Tribunal's refusal of permission was sent to him. He was required, therefore, to have filed his application by the 26 August 2010. Under rule 21(6) an applicant who is out of time must include a request for an extension of...

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