Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004781
UI-2024-004782, UI-2024-004783
UI-2024-004784, UI-2024-004785
UI-2024-004786, UI-2024-004788

First-tier Tribunal Nos: HU/00879/2024
HU/00880/2024, HU/00881/2024
HU/00882/2024, HU/00883/2024
HU/00884/2024, HU/00885/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3 September 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

EUSTACE CHIEDOZIE AMANZE
JOSEPHINE CHIOMA AMANZE
GOODLUCK OBICHUKWU AMANZE
NICOLETTE KAMSIYIOCHUWU AMANZE
NORAH NGOZICHUKWU AMANZE
NANCY UBAMSINACHUKWU AMANZE
NATALIE EBERECHUKWU AMANZE
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Litigant in person
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 19 August 2025

DECISION AND REASONS

1. The appellants appeal a decision of First-tier Tribunal (FtT) Judge O’Garro (the judge) who on 31st July 2024 dismissed their appeals on human rights grounds against the decisions of the Secretary of State dated 17th April 2024. The appeal was heard on the papers before the FtT at the request of the first appellant.

2. The appellants are citizens of Nigeria and include the main appellant and his partner and their 5 children born in 2011, 2013, 2016, 2020 and 2023. The last child was born in the United Kingdom. All are citizens of Nigeria. The first appellant first came to the UK on a student visa dated valid from 15th September 2014 until the 29th February 2016. He returned to Nigeria. On 21st February 2021 the appellant again applied for entry clearance and entered the UK on 17th March 2021 with limited leave to remain as a student. The remaining dependents joined the appellant in July 2022 as student dependents and based their applications on that of the first appellant. They made their applications on form FLR(HO), for further leave to remain and their applications dated December 2023 were considered under Appendix FM and on Appendix PL (private life).

3. Their applications were refused by the respondent who found that none of the appellant’s minor children are settled in the United Kingdom or has resided in the United Kingdom for over 7 years at the date of the applications.

The Grounds of Appeal

4. The grounds of appeal are lengthy but in essence assert that the judge:

(i) misdirected herself legally and failed to adhere to the correct approach to a statutory duty by failing to carefully consider s55 of the Borders, Citizenship and Immigration Act 2009 in relation to the children. This was because the judge stated that the regard had to be given to s117B of the Nationality Immigration and Asylum Act 2002 (NIA Act) and failed to properly considers the Human Rights Act 1998 such as the third party interests of the children which required exceptionality in the sense of unusual rather than compelling circumstances. The judge misunderstood the legal powers under s10 of the ‘1999 Act’ when finding that removal was proportionate. The judge also acted unlawfully when exercising her discretion to apply little weight to the private lives of the appellants.

(ii) The appellant maintained he remained a legal migrant and had not breached the immigration rules. New immigration rules took effect on 1st January 2024 for postgraduate students but prior to that date post graduate students could switch to other routes. The first appellant maintained that he was not an overstayer as his student visa was still valid and could generate a ‘share code’ and on 13th April 2025 he generated a share code to verify his status.

(iii) It was unreasonable to rule that he had not lodged a protection claim as he had applied under FLR (HRO) which was categorised as applications ‘for people who are refugees, stateless or under humanitarian protection. This was an application for further leave to remain. Owing to the children it was paramount importance to consider Article 3 of the ECHR because the UK was a signatory to the UN Convention on the Rights of the Child 1989.

(iv) The appeal had been made on the basis the return would result in unjustifiably harsh consequences for the family facing the gruesome realities of Nigeria.

(v) The judge failed to ‘charge the respondent for presenting false and misleading information to the court as the respondent made an ‘incorrect use of FLR(FP)’ to wrongly refuse the application. The family was abused by the Secretary of State and victimized because he complained about the delays in assessing the FLR (HRO).

(vi) The judge erred in restricting the appeal to only Article 8 of the ECHR because of the children involved and failed to give adequate reasons.

(vii) The judge failed to exercise discretion outside the rules by dismissing the appeal.

(viii) The judge failed to take relevant material considerations into account and erred in failing to take account of the s21 Notice affordability assessments and bank statements and that the children were at risk of destitution. A mistake of fact was a freestanding ground of review.

(ix) The judge erred in failing to take account of Article 3 following the documentary evidence that the children were at risk of imminent destitution. The best interests of the children were of paramount importance and article 3 added an extra layer of protection to protect the children from destitution emotional harm and their essential needs.

(x) The conclusions of the judge were irrational and there were procedural irregularities.

5. Permission to appeal was initially refused by the First-tier Tribunal but granted by Upper Tribunal Judge Lodato who stated that the judge arguably failed to consider their appeals through the prism of Articles 2 and 3 of the ECHR and who found that that there was ‘arguable force’ to this challenge. He added that the respondent ‘will no doubt argue that the end result would have inevitably have been the same even if the correct legal principles had been applied’ but it remained arguable that the judge needed to engage with the grounds of appeal which expressly relied on Articles 2 and 3. The ground was not restricted and all grounds were permitted to be argued albeit that Upper Tribunal Judge Lodato saw little substance in the remaining grounds.

Documentation

6. I have read the wealth of documentation that was presented to the Upper Tribunal and which included the appellant’s grounds, his skeleton arguments, his schedules, his witness statement to the UT, the documentation before the FtT and the documentation presented by the Secretary of State to the FtT. Documentation and evidence that was not before the FtT should not in general be used to criticise the FtT decision. The appellant also submitted post hearing documentation.

7. The appellant entered into lengthy correspondence with the Upper Tribunal following the grant of permission and which included a challenge to the failure of the respondent to file a Rule 24 response. This was explained to the appellant by the legal officer of the Tribunal on 29th April 2025 and he was advised that he could still file a Rule 25 response which the appellant did on 4th May 2025.

8. I only briefly summarise the correspondence with the Tribunal. The appellant filed a skeleton argument and composite bundle on 11th June 2025. On 17th June 2025 the appellant enquired as to whether he could file a Judicial Review claim. On 24th June a letter of complaint was received from the appellant in relation to the skeleton argument being removed from CMS. Again, on 24th June the skeleton argument and composite bundle was filed and on 27th June an expedition request was filed. A letter of complaint was filed on 9th July 2025 stating that a document had been filed which the appellant had not submitted. A further letter of complaint was filed on 15th July and on 16th July the appellant filed a complaint about administrative delay. A further skeleton argument was received from the appellant on 17th July. On 21st July a skeleton argument and bundle were received via E-Filing from the appellant with a copy of a detailed chronology of events and cross-referenced with documentary evidence in preparation for the hearing. On 23rd July an exhibit index for the witness statement of the appellant was filed. On 24th July an email was received from the appellant sending the bundle as a link. On 24th July a further complaint was received from the appellant in relation to the updating of documentation. On 6th August standard directions were served. On 7th August further correspondence was received from the appellant with attachments. On 18th August further documentation was received from the appellant in relation to the hearing on the following day. On 19th August, the day of the hearing, a further skeleton argument was received together with a composite bundle. Post hearing correspondence was filed on 20th August 2025.

The Hearing

9. It was explained to the appellant at the hearing that his grounds, skeleton arguments, schedule and witness statement had all been read and that the focus should be on the grounds as he had submitted them and on the errors of law he thought were contained in the FtT decision. The first appellant wished to present yet further documentation on the day and I explained that all his submissions had been read and suggested that he speak to me orally on points he wished to make from his further documents (which had not been served on the respondent) and which he did for approximately one hour during which I explained again that I had read the papers and that the respondent would wish to make submissions. Towards the close of his submissions I explained that in fairness to other appellants that his was not the only case and there was a list before me that day. The appellants’ case was brought into court first because all five of the children were brought to court and indeed were present at the hearing. I also attempted to explain that he would have a right to reply following the respondent’s submissions.

10. The appellant emphasised that the respondent had failed to follow procedure which was unfair and disadvantaged him (which I address below), had victimised his family, had failed to apply the correct legal provisions when he had applied on form FLR (HO) not further to Appendix FM or on private life grounds, Thus the judge also erred. There had been a failure to consider the appellant’s children’s best interests, failure to consider that he was in the UK with leave when he made the application, and the judge had acted irrationally and disproportionately. The misclassification of his application had had serious consequences and had caused his family to suffer destitution which had not properly been addressed. His family were being supported under s17 of the Children Act 1989.

11. The respondent had a positive duty to prevent children from being homeless when he applied for a visa on 8th December 2023. The best interests of the children had not been considered. The guidance had not been properly applied. The judge had erred in considering Appendix FM and Article 3 was not considered. He had not claimed asylum nor humanitarian protection. Article 8 was not properly considered. There was no proper assessment under article 8 and the result had caused his family to be homeless. There was a subsequent breach of Article 3 and inhuman and degrading treatment. There would be hardship if he were forced to return to Nigeria. The Secretary of State had abused her power and presented false information. He had no income and no savings and no prospects on return to Nigeria and further had health issues. There were widespread attacks and bandits in Nigeria and religious persecution and the prospect of FGM for his children. The relevant legal rules had not been properly applied. The appellant ended by stating that he intended to renounce his Nigerian citizenship and had submitted a statelessness application. (I note that he previously had withdrawn a stateless application).

12. Ms Rushforth submitted that rule 24 responses were not mandatory unless specifically directed. The appellant had complained in April as to the absence and a full explanation had been given to him by a legal officer of the court.

13. The grounds she submitted were misconceived. There was no error of law in the decision. The appellant did complete an FLR(HO) form but that made no material difference. His application was considered inside and outside the rules and the Secretary of State adopted the correct approach. She submitted that the appellant started by saying the wrong rules had been used and ended by stating the judge did not consider them.

14. The grant of permission itself stated that the likely decision would be the same.

15. The judge considered FGM, that his sister-in-law was killed and looked at the availability of state protection and exceptional circumstances outside the rules. The judge looked at circumstances on return to Nigeria and in effect considered Articles 2 and 3. The judge referenced the availability of the voluntary return scheme at [39]. The grounds were simply a disagreement with the decision. He had leave until January 2025.

16. The appellant was given the right of reply and again focussed on the negligence of the respondent and submitted that when he applied on human rights grounds, they were legal residents, but he could not previously pay the student fees. The Secretary of State had delayed in responding to this application.

Conclusions.

17. At the hearing the appellant maintained that the respondent had failed to comply with procedure by failing to provide a Rule 24 response in breach of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the UT Rules). He asserted that this unfairly prevented him from putting his case fully. The appellant however has misunderstood the UT Rules. Further to Rule 24 (1A) subject to any direction given by the Upper Tribunal a respondent may and if paragraph 1B applies must provide a response to a notice of appeal. Paragraph 1B does not apply as (a) clearly the respondent relied on the reasons given in the decision of the FtT and (b) the respondent was not relying on any ground on which the respondent was unsuccessful in the proceedings. The standard directions state that ‘No later than 28 days from the date on which these directions are sent, the respondent must provide to the Upper Tribunal and the appellant any response to the grant of permission to appeal’ but that in my view refers to a response on which the respondent intends to rely. The sanctions are set out at the end of the form below and nothing in my view warranted an imposition of a sanction on the respondent in the circumstances. In response to a specific question on this matter the appellant accepted that the court was not in procedural breach.

18. I had in mind fairness, which was in effect the appellant’s concern, the interests of justice and the UT Rules. The overriding objective which is set out as follows:

‘2.—(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Upper Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Upper Tribunal must seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must—
(a) help the Upper Tribunal to further the overriding objective; and
(b) co-operate with the Upper Tribunal generally.’

19. I did not consider that the appellant’s position was unfairly affected by the failure of the respondent to provide a Rule 24 response. First, it was the appellant’s appeal, secondly the respondent, in effect merely opposed the appeal and relied on the judge’s underlying decision which had been read by the appellant and which he himself appealed and thirdly, the appellant had the opportunity following the respondent’s very brief submissions to reply, which he did. I also rely on Rule 7 of the UT Rules which states that and irregularity resulting from a failure to comply with any requirement in these Rules a practice direction or a direction (and which must extend to failure to comply with standard directions) does not of itself render void the proceedings or any step taken in the proceedings.

20. Turning to the grounds and the substance of the matter, an appeal is available from the FTT to the Upper Tribunal only on a point of law as per section 11 of the Tribunals, Courts and Enforcement Act 2007 (the TCE Act 2007). Hence, on an appeal to the Upper Tribunal, the Upper Tribunal is concerned to check the lawfulness of the FTT's decision, not merely to supersede that decision by making a new determination of its own. The first appellant at the hearing before me made copious submissions but it should be noted that he chose to pursue his appeal before the FtT by way of paper rather than attending to give evidence at court.

21. Volpi v Volpi [2022] EWCA Civ 464 confirms at 2(i) that ‘An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong’. I am not satisfied that the judge erred in law in the determination for the following reasons and I address each ground in turn. I would add that the grounds were repetitive and intertwined and where necessary I have addressed grounds together.

22. Ground (i): I am not persuaded the judge misdirected himself or failed to adhere to the correct statutory approach. This was an appeal, in effect, on human rights grounds and the judge is obliged under statue to apply s117B of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) when considering whether a decision made under the Immigration Acts breaches a person’s rights in relation to private and family life under Article 8 and as a result would be unlawful under s 6 of the Human Rights Act 1998 (ECHR). The judge did not misuse her powers when addressing proportionality. Further to s117B(2) when considering the public interest question, the tribunal must have regard in all cases to the considerations listed in s117B.

23. Section 117B of the 2002 Act states:

‘(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.’

24. It is clear that the immigration status of the family is precarious (they are not British citizens, do not have settled status and are not in the UK with refugee or HP leave or leave under Appendix EU) and further to S117B(5) of the 2002 Act, little weight should be given to a private life established by a person at a time when the person's immigration status is precarious. The appellant stated that he had lawful status but the judge found their status precarious [56] not unlawful. The issue in the underlying decision of the Secretary of State was whether further leave should be granted.

25. It was open to the judge to apply the provisions under s117B to the children. Miah (section 117B NIAA 2002 - children) [2016] UKUT 131 (IAC) confirms that ‘In section 117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002 parliament has made no distinction between adult and child immigrants.’ The factors set out at s117B(1)-(5) apply to all regardless of age.

26. The judge specifically considered the best interests of the children, none of whom are British citizens nor ‘qualifying children’ under the immigration rules nor under s117B(6) and s117D(1) of the 2002 Act. The best interests of the children are not, contrary to the grounds, a paramount consideration but a primary consideration and that was clear from the decision see for example [54] and [62].

27. Further CAO [2024] UKSC 32 explains that the s55 duty is not a duty imposed on the FtT but on the Secretary of State. The judge went into detail when considering the best interests of the children in relation to s6 of the Human Rights Act 1998. It is not the case when reading the decision as a whole that the judge failed to take into account relevant factors. The appellant had a fair opportunity to present his and his family’s case and chose to present the case on the papers and in this regard, there was no procedural error. It was not evident that the Secretary of State disregarded the statutory duty under s55 and see [38] onwards of CAO which sets out the approach under the ECHR particularly in relation to consideration of the welfare of children. CAO at [54] explains that the appeal rights have changed since 2014. (In terms of the ability to criticise the lawfulness or other of the decision of the Secretary of State the ground of appeal that the decision of the Secretary of State is ‘not in accordance with the law’ no longer exists.) As stated in CAO ‘At para 49 the Upper Tribunal explained that if the decision to refuse a human rights claim would violate section 6 of the HRA the FTT "must so find", and no purpose would be served, and it would be wrong, for the FTT to make any statement to the effect that a lawful decision remained to be made by the Secretary of State on that question.’ In effect the judge took into account the relevant factors in relation to the children and this in evident throughout the decision.

28. The judge was making a decision on the proportionality of the refusal and not making a decision in relation to a s10 removal which again is no longer a ground of appeal under the new appeals regime since 2014. Although there is a mention of removal at [63] this is merely a logical consequence of the refusal of the appellants’ applications and dismissal of the appeals. The judge did not approach the appeal unlawfully.

29. Ground (ii): the appellant maintains that he is in the UK lawfully but as the judge recorded, he had leave until 31st December 2024. Indeed it could be said that as his leave was continuing, he had no human rights claim. It was clear to the judge that the appellant was not studying because he had not paid his fees and the appellant himself accepted that his study was interrupted on 2nd February 2024 (expected return of 5th March 2025) and further it is clear that he has been and is in breach of the condition of his visa which has a condition of ‘no recourse to public funds’. That condition had not been lifted. The appellant and his wife and all his children are now and were dependent on public funds (Gloucestershire County Council) and see [56] of the FtT decision. I also note from the documentation that initially the appellant asserted it was irrational for the respondent to refuse his human rights claims because he had a valid student visa and thus the respondent had fettered her discretion. There is a letter from the respondent dated 26th November 2024 that his leave expired on 31st July 2025. The appellant confirmed in writing that in fact his leave was cancelled on 28th January 2025. That his leave was cancelled in January 2025 was confirmed by Ms Rushforth. Thus, that the judge proceeded with the appeal was in the event not a material error because the judge considered, correctly, that his leave was precarious and not that it was unlawful and see [56] of the decision. I repeat the appeal was a consideration of further leave to remain on human rights grounds.

30. That the appellant could formerly switch to a different visa route and that the rules changed is not to the point and does not assist the appellant because the rules apply as at the date of the decision by the Secretary of State and see Odelola v Secretary of State [2009] UKHL 25.

31. Grounds (iii) and (v); the appellant maintains that it was incorrect to apply the immigration rules on Appendix FM and Appendix Private Life bearing in mind the application he made on Form FLR (HO) and the judge failed to ‘charge’ the respondent for presenting false and misleading information in relation to the consideration of the application. The appellant had not claimed asylum nor humanitarian protection and it is clear even on the documentation provided by the appellant that form FLR (HO), contrary to the grounds of appeal, is not to be used for claims of asylum nor Article 3. The guidance submitted by the appellant in his own bundle confirmed in relation to Form FLR(HO) that the form is to be used to apply for an extension of stay in the UK on the basis of a human rights claim. This form specifically states that the form cannot be used to apply for asylum or international protection (including applying for humanitarian protection or an Article 3 ECHR application made on protection grounds). There is information on GOV.uk to find out about eligibility. Rather than taking up the issue of the protection claim with the Secretary of State and filing a protection claim the appellant proceeded to appeal to the First-tier Tribunal (IAC). It can be seen from the underlying decision letter of the respondent that the relevant immigration rules were applied but further the issue of protection was nonetheless considered together with sufficiency of protection and internal relocation in the decision.

32. That said, I do not find that this disadvantaged the appellant or demonstrates that the judge’s approach was legally flawed. It is for the Secretary of State to determine how to consider the application. The appellant himself in his visa application stated that he was applying for leave outside the rules ‘under family or human rights grounds only’. That is how the judge approached the appeal; both inside and outside the Rules. Additionally, Appendix FM permits consideration on exceptional circumstances under GEN 3.2 and it is open to the respondent and the judge to consider exceptional matters outside the rules in relation to private life. The appellant made various allegations against the Secretary of State such that the wrong consideration was given to his application but it is clear that a complaint was investigated by the Home Office and a decision given on 6th June 2024 rejecting the assertion. That the judge simply considered the appeal on the basis of the Secretary of State’s decision does not found a legally sustainable criticism of the judge and does not, in these circumstances, fall within the parameters of an error of law as per s11 of the TCE Act 2007. As stated in the response from the respondent, consideration was given to the circumstances raised as being exceptional compelling and compassionate. The appellant specifically submitted in his correspondence and before the FtT judge that he was applying on compassionate and compelling circumstances based on human rights which is what the judge considered. It was open to the judge to note that the appellant had not claimed asylum nor humanitarian protection and that does not found legal criticism. It is not for the judge to ‘charge’ the respondent.

33. Grounds (iv) and (vi); the judge clearly addressed the matter of compassionate and compelling circumstances based on the human rights grounds raised. The judge set out the circumstances at [12] onwards and noted at [16] the appellants’ fears relating to his brother-in-law, the claim that Nigeria was a dangerous country, and the appellant’s claims that his children would be subject to circumcision.

34. The judge applied the correct legal framework, and I have identified above that Appendix FM permits the consideration of exceptional circumstances and Appendix Private Life does not preclude the consideration of Article 8 outside the rules as per Agyarko [2017] UKSC 11. The judge set out the relevant test at [24] under Agyarko. In terms of Article 8 the judge applied the correct standard of proof and further applied Secretary of State v Kamara [2016] EWCA Civ 813 which requires a broad evaluative assessment of possible reintegration. The judge noted that all relevant factors should be considered.

35. The judge set out why he considered the appellant to be an insider because he had lived in Nigeria for the greater part of his life as had his partner at [36]-[40]. The lead appellants spoke the language and understood the culture. The judge found the voluntary assistance scheme was available to tide them over temporarily and as the appellant was highly educated, and both he and his wife could secure funds through employment and therefore, in effect, would not be destitute. Further Nigeria had a functioning health system. As the judge found at [37]-[40]]:

‘37.The appellant is highly educated as noted from the educational course he had come to study. The documents show that the appellant had registered to study a PHD in Business Administration at Gloucester University . I find the appellant can return to Nigeria and find employment, which will in due course assist him to maintain himself and his children.

38. Similarly, I find the appellant’s wife can also find employment on return to Nigeria . The documentary evidence shows that she has been working as a care support worker in the United Kingdom and I see no reason why she would not be able to find similar work in Nigeria in a hospital or care setting.

39. Much has been made of the poor economic conditions in Nigeria . Nothing presented shows why the appellant would be in greater difficulty than many in terms of finding work on return. Further , the voluntary returns scheme would also be available. Adaptability has been shown in coming to this country . Any hardship created by the Nigerian economy would be no more for the appellant than many others.

40. Although the appellant may be suffering from physical health problems, the
evidence does not indicate that treatment would not be available or accessible by him in Nigeria . Nigeria has a functioning health care system.’

36. The judge indubitably addressed the best interests of the children from [41] onwards.

37. The judge did not restrict the appeal to Article 8. Separately the judge identified the claim in relation to FGM and the other claims in relation to Article 3. It was open to the judge to conclude that if the family had a genuine fear of FGM on return the appellants should ‘be making an asylum claim’. This issue was considered from [44] onwards which in effect considered Article 3. There is nothing to suggest this experienced judge did not apply the relevant standard of proof. At [46]–[47] the judge referred to the respondent’s country policy and information report on Nigeria, noted there were laws to eliminate the practice, that FGM was criminalised and there was a justice system and protection from non-state actors. Bearing in mind the findings made by the judge and that she relied on the relevant respondent’s CPINs on FGM and noted the opposition of the adult appellants to the practice.

38. The judge also considered the appellant’s fear of general violence in Nigeria but again found, on sound reasoning, there were criminal laws and a functioning police and a justice system. Further Horvath [2000] UKHL 37, on sufficiency of protection, was unarguably lawfully applied to the particular facts of the appellants’ human rights claim; no authority can provide a guarantee of safety. In effect the judge considered the claims made which might have founded an Article 3 claim. Article 2 was implicitly considered by the judge when addressing the assertions of dangers in Nigeria.

39. Overall, the appeal was made and dismissed on human rights grounds which would include Articles 2 and 3. Very significant obstacles to return were clearly addressed and which can be seen from [43] onwards where the judge reasoned:

‘43. The appellant has raised the fear of FGM. He said that he fears returning to Nigeria with his youngest child , who is a female child, as she will be subjected to FGM like her older sisters.

44. I was somewhat concerned that the appellant raised his fear of FGM practice which I accept occurs in Nigeria in this appeal. In truth if the appellant has a genuine fear of FGM on return, he should be making an asylum claim where the respondent can explore fully with him the substance of his fears and make a decision on his claim for protection.

45. Nevertheless, I have considered the issue of FGM and how it may impact on the
reintegration of the appellant and his family on return to Nigeria.

46. If the appellant and his partner are against the practice of FGM , I find this is a good starting point because this means they will vigorously resist any attempt by anyone to force FGM on their daughter. According to the respondent’s country policy and information report education has a significant bearing on whether a child will be subject to FGM. The Nigerian government has enacted laws to eliminate the practice of FGM. FGM is criminalised under federal law and the Nigerian government has put in place a criminal justice system that has the capability of providing protection to persons who fear non-state actors. There are several Non-Governmental Organisations (NGOs) and Civil Society Organisations (CSOs) in Nigeria that work to reduce the practice of FGM.

47. I find the appellant who is educated and does not want his child to be subjected to FGM can turn to the police, if anyone tries to force him and his partner to have their infant daughter circumcised . Nigeria has a legal and judicial system to which the appellant can turn to on return if his fear is genuine. The onus is on the appellant to demonstrate that the state is not willing and able to provide him with effective protection and I find that he has not done so.

48. Regarding the appellant’s fear of general violence in Nigeria, I find that Nigeria has a functioning police and justice system to protect the citizens of Nigeria. Nigeria has in force criminal laws which makes violet attacks by persecutors punishable by sentences commensurate with the gravity of the crimes and no evidence has been provided by the appellant to show that there is not a reasonable willingness by the police and the courts in Nigeria to detect, prosecute and punish offenders.’

40. Notwithstanding that the appellants did not make an asylum or protection claim and used a form they were specifically not permitted to do (and there are routes for claiming asylum set out in the immigration rules), the judge specifically addressed the issue of the claims made in the application forms.

41. It is not arguable that the judge failed to consider all relevant documentation. As Volpi holds at 2(iii)

‘(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.’

42. Ground (vii): in terms of exercise of discretion, the judge applied the relevant legal provisions, and the challenge is in effect a disagreement with the findings of the judge. The family life is in effect between the family members themselves, and it was open to the judge to consider their private life as he did. Further, as the Court of Appeal said at para 18 of Herrera v SSHD [2018] EWCA Civ 412, it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors.

43. Grounds (viii) and (ix): in terms of failure to take into account destitution this challenge was misconceived. S117B(3) confirms that the fact a person is a burden on the taxpayer weighs against them in the proportionality exercise. The assertion that the children were at risk of destitution in the UK and thus at risk of Article 3 mistreatment was not argued before the FtT and, even if it were, could not begin to reach the relevant legal threshold bearing in mind the circumstances of these appellants and the safety nets provided by UK public services and an omission on this basis would not be material. The judge specifically found, on sound reasoning, that the family would not be destitute on return to Nigeria. I repeat, that a person is a burden on the taxpayer weighs against them in any Article 8 balancing exercise on proportionality.

44. Ground (x): the threshold for irrationality is a very high threshold and not arguably met here. R (Iran) v SSHD [2005] EWCA Civ 982 explains at [11] and [12]
‘11. … It is well known that "perversity" represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481, the whole court agreed that the word meant what it said: it was a demanding concept. …
12. We mention this because far too often practitioners use the word "irrational" or "perverse" when these epithets are completely inappropriate. If there is no chance that an appellate tribunal will categorise the matter of which they make complaint as irrational or perverse, they are simply wasting time – and, all too often, the taxpayer's resources – by suggesting that it was.’
45. The judge set out his reasons logically, cogently and adequately as can be seen when the decision is read as a whole. There is no material error of law disclosed.

Notice of Decision

I find no error in the decision of the FtT and the appeal remains dismissed on all human rights grounds.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2nd September 2025