OA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 605

Case No C5/2008/3074[2009] EWCA Civ 605
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/12647/2008]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 15 th May 2009
Before
LORD JUSTICE THOMAS
Between
OA (NIGERIA)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr B Hawkin (instructed by Messrs Christchurch) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]The appellant is a person who is studying here. He arrived in October 2004 and his entry clearance was continued for 2006 and 2007. He applied for an extension to do a further degree in July 2008. The Secretary of State refused an extension on the basis that he would not be able to maintain himself out of a source of income abroad and would become dependent upon employment or public funds. The reason why the Secretary of State had come to this view was that, although the appellant had been successfully financed by his uncle in the period to December 2007, his uncle had then died and the new source of financing was alleged to be his wife.[2]The matter was considered by the Immigration Judge on 26 August 2008. There was before him evidence in relation to the source of income.[3]The Immigration Judge examined the materials and was not satisfied on two basic grounds. First there was no evidence in relation to the profitability or assets of the wife’s business, and secondly he was not satisfied as to the payment of two significant sums identified in paragraph 2.6 of his decision. He said :
“I am not satisfied on the balance of probabilities that these two substantial deposits were derived from her income, or that they represented funds genuinely available to the appellant to meet the costs of his course or his maintenance and accommodation.”
[4]Reconsideration was ordered on the basis that there was an error of law in relation to that finding. The matter then came before Senior Immigration Judge Pinkerton on 20 October 2008. He accepted that there was an error of law, but held that it made no difference, because the Immigration Judge would have reached the same decision anyway because there was not any satisfactory evidence of the profitability or assets of the appellant’s wife’s business.[5]It is contended before me today that there is effectively an error in that reasoning, because, if one was to overturn the decision on the basis that the judge should not have found that the two large sums did not come from the business, then the logic of that decision was that one should infer it came from the business; that therefore the business was profitable to that extent. The Senior Immigration Judge therefore had not sufficiently thought through the consequence of finding an error of law by the Immigration Judge.[6]It seems to me, this matter having come before me after my initial refusal on paper, that that being the very short point that has arisen together with reliance upon the limited terms of the guidance by the Secretary of State, I have concluded that this matter is one where there is a real prospect of success and there should be permission to appeal. Obviously it would be a very short argument. It is estimated at three quarters of an hour on both sides, so I will say an hour. It can be dealt with by three judges, one of whom can be a High Court judge. It does not require an immigration specialist.

Order

Application granted