The Queen (on the application of Adewunmi) v Secretary of State for the Home Department [2017] EWCA Civ 1253

 

11 August 2017: judgment was handed down by the Court of Appeal (Sales and David Richards LJJ) dismissing two appeals of Mr Adewunmi, a Nigerian national, against immigration decisions of the SSHD. The first appeal was against the rejection of the Appellant’s application for leave to remain as a Tier 4 (General) Student to undertake a PhD course at Kingston University. The second appeal was against the SSHD’s decision rejecting a human rights application by the Appellant for leave to remain on the basis of family and private life. The claim was certified by the SSHD with the effect that the Appellant was not entitled to appeal against it to the First-tier Tribunal from within the UK.

 

The Appellant initially sought to challenge both decisions by way of judicial review, the first in the Upper Tribunal and the second in the Administrative Court. Both challenges were refused permission. It was against these refusals that the Appellant then appealed to the Court of Appeal.

 

In respect of the first appeal, by paragraph 245ZX(l) of the immigration rules Mr Adewunmi was required to apply for leave to remain for the purpose of studies commencing within 28 days of the period of his overstaying. The Appellant did not meet this requirement but relied on exceptional circumstances. It was his case that he had provided evidence of exceptional circumstances in support of his application. In rejecting his appeal the Court of Appeal concluded that he had failed to prove this claim. Accordingly, the SSHD did not err by failing to consider the issue of exceptional circumstances in her decision.

 

Regarding the second appeal against dismissal of the human rights claim, Mr Adewunmi produced a certificate of marriage to evidence his claim to be in a genuine and subsisting relationship with his wife. The Court of Appeal agreed with the SSHD that this did not establish that his relationship was genuine and subsisting as the Appellant had failed to present documentation demonstrating co-habitation or shared financial responsibilities, as required by the respondent’s guidance. The relationship “had every appearance of being a mere marriage of convenience.” The Court of Appeal continued, “it is notable that the appellant provided no witness statement or account giving any details about his relationship with Ms Ndagire (how and when it was formed, how it was carried on, what mutual financial arrangements they had made etc); nor did Ms Ndagire; nor did any member of Ms Ndagire’s close family provide a corroborative statement, even though they were on hand in the UK and able to do so.” As such, the Appellant failed to satisfy the family life requirements of the immigration rules. Equally, he failed to meet the private life requirements. Nor had the SSHD erred in failing to exercise her discretion to grant leave outside the immigration rules on Article 8 grounds. The SSHD’s finding that, “You have built your family and private life in the UK fully in the knowledge that you have no valid leave to remain. You and your partner were aware of your precarious immigration status and should have anticipated interference at some stage” was a conclusion properly open to her. Finally, the SSHD was entitled to certify the human rights claim as “clearly unfounded” pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002 in accordance with the approach authoritatively set out in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6. As stated by Sales LJ, “There was a hopeless dearth of supporting evidence in respect of the genuineness and substance of his relationship with Ms Ndagire, in circumstances where (if the relationship had been genuine) there should have been no difficulty in supplying full details and corroborative witness statements.”

 

David Mitchell was instructed by the Government Legal Department on behalf of the SSHD in both appeals. A copy of the judgment is available here.