JUDGMENT
Robinson (formerly JR (Jamaica)) (Appellant) v
Secretary of State for the Home Department
(Respondent)
before
Lady Hale, President
Lord Wilson
Lady Black
Lord Lloyd-Jones
Lady Arden
JUDGMENT GIVEN ON
13 March 2019
Heard on 15 November 2018
Appellant Respondent
Michael Fordham QC Sir James Eadie QC
Ronan Toal David Blundell
Catherine Robinson Toby Fisher
(Instructed by Duncan
Lewis Solicitors
)
(Instructed by The
Government Legal
Department
)
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LORD LLOYD-JONES: (with whom Lady Hale, Lord Wilson, Lady Black
and Lady Arden agree)
Introduction
1. This appeal concerns the statutory right of appeal against decisions by the
Secretary of State for the Home Department (“the Secretary of State”) to refuse
protection claims and human rights claims under Part 5 of the Nationality,
Immigration and Asylum Act 2002 (“the 2002 Act”) as amended. The particular
question for decision is as follows: Where a person has already had a protection
claim or a human rights claim refused and there is no pending appeal, do further
submissions which rely on protection or human rights grounds have to be accepted
by the Secretary of State as a fresh claim in accordance with rule 353 of the
Immigration Rules if a decision in response to those representations is to attract a
right of appeal under section 82 of the 2002 Act?
2. It is a conspicuous feature of litigation in the field of immigration and asylum
in this jurisdiction that those whose protection claims or human rights claims have
already been refused seek to make further applications adducing further submissions
or evidence in support. It is necessary that provision be made for such renewed
applications for which there is a sound basis, not least because circumstances may
change significantly and unforeseeably following the rejection of a claim. In R v
Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768 Sir
Thomas Bingham MR noted (at pp 781-782) that, for example, it is not hard to
imagine cases in which an initial claim for asylum might be made on insubstantial,
or even bogus, grounds, and be rightly rejected, but in which circumstances would
subsequently arise or come to light showing a threat of a kind requiring the grant of
asylum. As he observed, a scheme of legal protection which could not accommodate
that possibility would be seriously defective. In appropriate cases, it will be
necessary to afford access to the statutory system of appeals when a second or
subsequent submission is rejected. Nevertheless, it is necessary to protect such a
scheme of legal protection from abuse. There is, therefore, a need to exclude from
the statutory system of appeals second or successive applications which are made
on grounds which have previously been rejected or which have no realistic prospect
of success, and which are often advanced simply in order to delay removal from the
United Kingdom. The challenge is to provide a system which can deal fairly and
effectively with all such applications while also complying with the United
Kingdom’s international obligations.
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The facts
3. The appellant, Mr Jamar Robinson, is a national of Jamaica who was born on
14 May 1991. He arrived in the United Kingdom on 9 October 1998 when he was
seven years old. He was given leave to enter until 9 April 1999 and then remained
in the United Kingdom without leave.
4. In 2005, at the age of 13, he applied for indefinite leave to remain in the
United Kingdom as a dependant of his aunt who had made an application under a
“one off exercise” to allow families who have been in the United Kingdom for three
years or more to stay. His aunt was granted indefinite leave to remain on 13 May
2011. The appellant’s application was refused as part of later deportation
proceedings.
5. The appellant has a number of criminal convictions. The index offences
which triggered deportation proceedings were two robberies for each of which he
was sentenced on 20 April 2011 to 18 months’ detention, to run concurrently. At
sentence he was 19 years of age. On the same occasion he was convicted of failing
to comply with the requirements of a previous community order. On 31 August
2011, aged 20, he was convicted of an offence of robbery and an offence of theft, in
respect of which he was sentenced to terms of 40 months’ detention and 16 months’
detention respectively, to run concurrently. On 12 October 2012, aged 21, he was
convicted of an offence of violent disorder, committed while he was an inmate at
HMP Feltham, for which he was sentenced to 12 months’ imprisonment.
6. On 10 June 2011 he was notified by the Secretary of State of his liability to
deportation. His previous legal representatives responded on 16 August 2011. On
17 July 2013 a deportation order was signed in respect of the appellant. He appealed
to the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) against his
proposed deportation. His appeal was based on his claimed right to respect for his
private life in the United Kingdom. It was accepted that at that time there was no
family life in play. His appeal was dismissed and he was refused permission to
appeal to the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) by the
FTT and by the UT. He exhausted his rights of appeal on 1 May 2015.
7. On 13 May 2015 the appellant’s previous solicitors made brief further
submissions to the Secretary of State on his behalf. The focus of these submissions
was that the appellant’s then partner was pregnant and due to give birth on 28 July
2015. The application did not explicitly request that the deportation order be
revoked, nor did it explicitly make reference to human rights.
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8. The Secretary of State treated the further representations as an application to
revoke the appellant’s deportation order on the basis that deportation would breach
article 8 of the European Convention on Human Rights. She responded to those
submissions in a letter of 23 June 2015. She concluded that deportation would not
breach article 8. She refused to revoke the deportation order, and she decided that
his submissions did not amount to a fresh human rights claim under rule 353 of the
Immigration Rules.
9. The appellant’s son was born on 26 July 2015. He is a British citizen by birth
because his mother is British. The appellant then made further submissions to the
Secretary of State on 28 July 2015 regarding the birth of his son and providing some
documentation from the hospital. The Secretary of State responded to these further
submissions in a letter dated 31 July 2015. Once again, the Secretary of State
concluded that deportation of the appellant would not breach article 8 and that his
further submissions did not amount to a fresh claim under rule 353 of the
Immigration Rules.
10. On 18 July 2015 the Secretary of State gave directions for the appellant’s
removal to Jamaica on 9 August 2015.
11. A request for temporary admission was made on 30 July 2015 in order to
enable the appellant to visit his son. The enclosed documents included a statutory
declaration from the appellant declaring that he is the child’s father. The appellant
was subsequently named as the father on the child’s birth certificate.
12. On 5 August 2015 the appellant’s solicitors gave notice of appeal to the FTT
against the Secretary of State’s decision of 31 July 2015. In a decision dated 7
August 2015, promulgated on 10 August 2015, the FTT declined jurisdiction on the
basis that there was no right of appeal against the decision of 31 July 2015.
13. On 7 August 2015 the appellant made an application for permission to apply
for judicial review of the Secretary of State’s decisions of 23 June 2015 and 31 July
2015 not to accept the further representations as fresh claims and the removal
directions given on 18 July 2015. After the proceedings were lodged the Secretary
of State confirmed that removal of the appellant would be deferred.
14. The appellant applied to amend his grounds to include the FTT as second
respondent and to challenge its decision of 7 August 2015 that the appellant had no
right to appeal against the decision of 31 July 2015. UT Judge Allen granted the
appellant permission to join the FTT and to amend his grounds.
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15. On 19 November 2015 UT Judge Eshun granted the appellant permission to
apply for judicial review. The application for judicial review was heard by UT Judge
Southern on 16 February 2016 who held that:
(1) the FTT had correctly decided that the appellant had no right of appeal
to the FTT;
(2) the Secretary of State’s letters were not refusals to revoke the
appellant’s deportation order; and
(3) the decisions of 23 June 2015 and 31 July 2015 were lawful with
regard to rule 353 of the Immigration Rules.
He refused permission to appeal to the Court of Appeal.
16. On 9 March 2016 the appellant applied to the Court of Appeal for permission
to appeal. The Secretary of State sought to deport the appellant to Jamaica on 13
April 2016. On 12 April 2016 Rafferty LJ granted the appellant a stay on removal.
On 2 December 2016 Underhill LJ, on consideration of the papers, granted
permission to appeal to the Court of Appeal.
17. On 4 May 2017 the Court of Appeal (Jackson, Hamblen and Flaux LJJ)
dismissed the appellant’s appeal and refused permission to appeal to the Supreme
Court. The appellant was granted a stay on removal pending final determination of
his appeal. The Supreme Court granted permission to appeal by order dated 10 April
2018.
The relevant legislation
18. Part 5 of the 2002 Act in force immediately prior to the commencement of
the Immigration Act 2014 (“the 2014 Act”) ie prior to 20 October 2014, provided in
relevant part:
“82. Right of appeal: general
(1) Where an immigration decision is made in
respect of a person he may appeal to the Tribunal.
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(2) In this Part ‘immigration decision’ means –
(a) refusal of leave to enter the United
Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement
under section 10 of this Act,
(d) refusal to vary a person’s leave to enter or
remain in the United Kingdom if the result of the
refusal is that the person has no leave to enter or
remain,
(e) variation of a person’s leave to enter or
remain in the United Kingdom if when the
variation takes effect the person has no leave to
enter or remain,
(f) revocation under section 76 of this Act of
indefinite leave to enter or remain in the United
Kingdom,
(g) a decision that a person is to be removed
from the United Kingdom by way of directions
under section 10(1)(a), (b), (ba) or (c) of the
Immigration and Asylum Act 1999 (c 33)
(removal of person unlawfully in United
Kingdom),
(h) a decision that an illegal entrant is to be
removed from the United Kingdom by way of
directions under paragraphs 8 to 10 of Schedule
2 to the Immigration Act 1971 (c 77) (control of
entry: removal),
(ha) a decision that a person is to be
removed from the United Kingdom by
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way of directions under section 47 of the
Immigration, Asylum and Nationality Act
2006 (removal: persons with statutorily
extended leave),
(i) a decision that a person is to be removed
from the United Kingdom by way of directions
given by virtue of paragraph 10A of that
Schedule (family),
(ia) a decision that a person is to be
removed from the United Kingdom by way
of directions under paragraph 12(2) of
Schedule 2 to the Immigration Act 1971 (c
77) (seamen and aircrews),
(ib) a decision to make an order under
section 2A of that Act (deprivation of
right of abode),
(j) a decision to make a deportation order
under section 5(1) of that Act, and
(k) refusal to revoke a deportation order
under section 5(2) of that Act.
…
84. Grounds of appeal
(1) An appeal under section 82(1) against an
immigration decision must be brought on one or more
of the following grounds –
…
(c) that the decision is unlawful under section
6 of the Human Rights Act 1998 (c 42) (public
Page 8
authority not to act contrary to Human Rights
Convention) as being incompatible with the
appellant’s Convention rights;
…
(g) that removal of the appellant from the
United Kingdom in consequence of the
immigration decision would breach the United
Kingdom’s obligations under the Refugee
Convention or would be unlawful under section
6 of the Human Rights Act 1998 as being
incompatible with the appellant’s Convention
rights.
92. Appeal from within United Kingdom: general
(1) A person may not appeal under section 82(1)
while he is in the United Kingdom unless his appeal is
of a kind to which this section applies.
…
(4) This section also applies to an appeal against an
immigration decision if the appellant –
(a) has made an asylum claim, or a human
rights claim, while in the United Kingdom, or
…
94. Appeal from within United Kingdom: unfounded
human rights or asylum claim
(1) This section applies to an appeal under section
82(1) where the appellant has made an asylum claim or
human rights claim (or both).
Page 9
…
(2) A person may not bring an appeal to which this
section applies in reliance on section 92(4)(a) if the
Secretary of State certifies that the claim or claims
mentioned in subsection (1) is or are clearly unfounded.
…
96. Earlier right of appeal
(1) An appeal under section 82(1) against an
immigration decision (‘the new decision’) in respect of
a person may not be brought if the Secretary of State or
an immigration officer certifies –
(a) that the person was notified of a right of
appeal under that section against another
immigration decision (‘the old decision’)
(whether or not an appeal was brought and
whether or not any appeal brought has been
determined),
(b) that the claim or application to which the
new decision relates relies on a matter that could
have been raised in an appeal against the old
decision, and
(c) that, in the opinion of the Secretary of
State or the immigration officer, there is no
satisfactory reason for that matter not having
been raised in an appeal against the old decision.
(2) An appeal under section 82(1) against an
immigration decision (‘the new decision’) in respect of
a person may not be brought if the Secretary of State or
an immigration officer certifies –
Page 10
(a) that the person received a notice under
section 120 by virtue of an application other than
that to which the new decision relates or by virtue
of a decision other than the new decision,
(b) that the new decision relates to an
application or claim which relies on a matter that
should have been, but has not been, raised in a
statement made in response to that notice, and
(c) that, in the opinion of the Secretary of
State or the immigration officer, there is no
satisfactory reason for that matter not having
been raised in a statement made in response to
that notice.
…
113. Interpretation
(1) In this Part, unless a contrary intention appears –
‘asylum claim’ means a claim made by a person
to the Secretary of State at a place designated by
the Secretary of State that to remove the person
from or require him to leave the United Kingdom
would breach the United Kingdom’s obligations
under the Refugee Convention,
…
‘human rights claim’ means a claim made by a
person to the Secretary of State at a place
designated by the Secretary of State that to
remove the person from or require him to leave
the United Kingdom would be unlawful under
section 6 of the Human Rights Act 1998 (c 42)
(public authority not to act contrary to
Convention) as being incompatible with his
Convention rights,
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…
‘the Refugee Convention’ means the Convention
relating to the Status of Refugees done at Geneva
on 28 July 1951 and its Protocol, …”
19. Part 5 of the 2002 Act was amended with effect from 20 October 2014 in a
number of respects. Section 82(1) now provides:
“82. Right of appeal to Tribunal
(1) A person (‘P’) may appeal to the Tribunal where
–
(a) the Secretary of State has decided to
refuse a protection claim made by P,
(b) the Secretary of State has decided to
refuse a human rights claim made by P, or
(c) the Secretary of State has decided to
revoke P’s protection status.
…”
Section 84 of the 2002 Act now provides:
“84. Grounds of appeal
(1) An appeal under section 82(1)(a) (refusal of
protection claim) must be brought under one or more of
the following grounds –
(a) that removal of the appellant from the
United Kingdom would breach the United
Kingdom’s obligations under the Refugee
Convention;
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(b) that removal of the appellant from the
United Kingdom would breach the United
Kingdom’s obligations in relation to persons
eligible for a grant of humanitarian protection;
(c) that removal of the appellant from the
United Kingdom would be unlawful under
section 6 of the Human Rights Act 1998 (public
authority not to act contrary to Human Rights
Convention).
(2) An appeal under section 82(1)(b) (refusal of
human rights claim) must be brought on the ground that
the decision is unlawful under section 6 of the Human
Rights Act 1998.
…”
20. There were consequential amendments to sections 85, 86, 92, 94 and 96.
21. Substantive changes were made to section 92 which now provides:
“92. Place from which an appeal may be brought or
continued
(1) This section applies to determine the place from
which an appeal under section 82(1) may be brought or
continued.
(2) In the case of an appeal under section 82(1)(a)
(protection claim appeal), the appeal must be brought
from outside the United Kingdom if –
(a) the claim to which the appeal relates has
been certified under section 94(1) or (7) (claim
clearly unfounded or removal to safe third
country), or
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(b) …
Otherwise the appeal must be brought from within the
United Kingdom.
(3) In the case of an appeal under section 82(1)(b)
(human rights claim appeal) where the claim to which
the appeal relates was made while the appellant was in
the United Kingdom, the appeal must be brought from
outside the United Kingdom if –
(a) the claim to which the appeal relates has
been certified under section 94(1) or (7) (claim
clearly unfounded or removal to safe third
country) or section 94B (certification of human
rights claims made by persons liable to
deportation), or …
Otherwise, the appeal must be brought from within the
United Kingdom.
(4) In the case of an appeal under section 82(1)(b)
(human rights claim appeal) where the claim to which
the appeal relates was made while the appellant was
outside the United Kingdom, the appeal must be brought
from outside the United Kingdom.
…”
22. Section 94 now provides in relevant part:
“94. Appeal from within United Kingdom: unfounded
human rights or protection claim
(1) The Secretary of State may certify a protection
claim or a human rights claim as clearly unfounded.”
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23. The definition of “human rights claim” in section 113 was amended by the
2014 Act and now provides as follows:
“‘human rights claim’ means a claim made by a person to the
Secretary of State at a place designated by the Secretary of
State that to remove the person from or require him to leave the
United Kingdom or to refuse him entry to the United Kingdom
would be unlawful under section 6 of the Human Rights Act
1998 (c 42) (public authority not to act contrary to
Convention).”
Immigration Rules, rule 353
24. The Immigration Rules have contained provisions in respect of previously
refused applications since May 1994 (HC 395, rule 346). A rule in substantially the
same form as the current rule 353 has been in force since it was introduced by HC
1112 in October 2004. (See para 36, below.) The current rule 353 of the Immigration
Rules HC 1025, which has been in force since February 2015, provides:
“353. When a human rights or protection claim has been
refused or withdrawn or treated as withdrawn under paragraph
333C of these Rules and any appeal relating to that claim is no
longer pending, the decision maker will consider any further
submissions and, if rejected, will then determine whether they
amount to a fresh claim. The submissions will amount to a fresh
claim if they are significantly different from the material that
has previously been considered. The submissions will only be
significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered
material, created a realistic prospect of success,
notwithstanding its rejection.
This paragraph does not apply to claims made overseas.”
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The decision of the Court of Appeal
25. In the Court of Appeal Jackson LJ, with whom the other members of the court
agreed, rejected a submission on behalf of the appellant that “human rights claim”
in section 82(1)(b) of the 2002 Act as amended means any human rights claim and
that its meaning is not confined to an original claim or a subsequent claim which
constitutes a “fresh claim” within rule 353 of the Immigration Rules. He also
rejected a submission that the Supreme Court considered precisely the same
question in R (BA (Nigeria)) v Secretary of State for the Home Department [2009]
UKSC 7; [2010] 1 AC 444 when construing the phrase “a human rights claim” in
section 92(4)(a) of the 2002 Act as it then stood. The decision of the Supreme Court
on the meaning of “human rights claim” in BA (Nigeria) did not apply to statutory
provisions which determine whether a right of appeal exists at all. In his view, it
would be an absurd reading of section 82, in either its previous or current form, to
interpret it as permitting an applicant to make the same human rights claim over and
over again, each time appealing to the FTT against the rejection of that claim. He
concluded that “a human rights claim” in section 82(1)(b) of the 2002 Act must
mean an original human rights claim or a fresh human rights claim which falls within
rule 353 of the Immigration Rules.
Submissions of the parties
26. On this appeal the parties have made very detailed submissions orally and in
writing for which the court is grateful. It seems to me, however, that Mr Michael
Fordham QC on behalf of the appellant makes two essential submissions which lie
at the heart of his case.
(1) First, he submits that the Onibiyo line of authority – which established
that in the case of a second or successive submission it was for the Secretary
of State to decide whether this constituted a fresh claim giving rise to a right
to appeal – did not survive the decision of the Supreme Court in BA (Nigeria),
and that, accordingly, there is no longer any role for rule 353 of the
Immigration Rules. In this regard he submits that this court should reject the
reading of BA (Nigeria) favoured by Lord Neuberger of Abbotsbury MR in
the Court of Appeal in R (ZA (Nigeria)) v Secretary of State for the Home
Department [2010] EWCA Civ 926; [2011] QB 722.
(2) Secondly, he submits that the amendments to Part 5 of the 2002 Act
effected by the 2014 Act abrogate the control mechanism established by the
Onibiyo line of authority and rule 353 of the Immigration Rules and that the
words “human rights claim” as they appear in section 82(1)(b) of the 2002
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Act following amendment by the 2014 Act are to be interpreted without
reference to rule 353.
27. On this basis he submits that any second or subsequent submission which is
a “human rights claim” under section 113(1) attracts a right of appeal under section
82, notwithstanding that the individual has made a previous claim that removal
would breach a relevant obligation, whether the same relevant obligation or a
different one, whether on the same basis or a different one, whether with the same
or different submissions and evidence, but subject however to the certification
provisions in sections 94 and 96.
28. In response on behalf of the Secretary of State, Sir James Eadie QC submits:
(1) BA (Nigeria) does not establish that the words “human rights claim”
as they appear in Part 5 of the 2002 Act are to be interpreted without reference
to the Onibiyo line of authority or rule 353 of the Immigration Rules. The
actual decision in BA (Nigeria) was that rule 353 had no further part to play
for the purposes of section 92(4)(a) once there was an appeal against an
immigration decision. It did not determine that the Secretary of State was no
longer entitled to decide the prior question as to whether a second or
subsequent submission constituted a claim at all. In his support he relies on
the analysis of BA (Nigeria) by Lord Neuberger MR in ZA (Nigeria).
(2) The amendments to the 2002 Act effected by the 2014 Act have not
changed the position. It remains the case that there will only be an asylum or
human rights claim to be determined if, in relevant cases, further submissions
are considered to amount to a fresh claim.
The Onibiyo line of authority
29. In order to address the issues raised by this appeal it is necessary to consider
in some detail the way in which a line of authority concerning second or subsequent
submissions to the Secretary of State has developed. It starts in 1996 with the
decision of the Court of Appeal (Sir Thomas Bingham MR, Roch and Swinton
Thomas LJJ) in Onibiyo. The applicant had made an application for asylum under
the Asylum and Immigration Appeals Act 1993 (“1993 Act”), based on the political
activities of his father. The Secretary of State refused his application and his appeal
under section 8(3)(b) of the 1993 Act was dismissed. The applicant then indicated
that he was making a fresh claim for asylum based on his own association with the
opposition in Nigeria. Rule 346, Statement of Changes in Immigration Rules (1994)
(HC 395), which was then current, provided:
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“When an asylum applicant has previously been refused
asylum in the United Kingdom and can demonstrate no relevant
and substantial change in his circumstances since that date, his
application will be refused.”
The Home Office stated in a letter that it was of the view that the representations did
not constitute a fresh claim for asylum and had been treated as further information
to the original claim. The request for revocation of the deportation order against him
was refused on the ground that there had not been any material change in
circumstances since the previous refusal decision sufficient to justify revocation.
The applicant’s solicitors took issue with this letter and submitted a notice of appeal
to a special adjudicator under section 8(3)(b) of the 1993 Act. The Secretary of State
maintained his position and in a subsequent letter explained that the first letter had
not constituted a refusal of asylum but a consideration and dismissal of the further
information provided. In the circumstances the Secretary of State had not made a
fresh decision and the appeal was invalid. The applicant applied for judicial review.
30. A preliminary question was whether a person may during a single
uninterrupted stay in the United Kingdom make more than one claim for asylum
within the 1993 Act. The Master of the Rolls, with whom the other members of the
court agreed, rejected the submission of the Secretary of State that once a person
had made a “claim for asylum”, been refused by the Secretary of State and
unsuccessfully exercised his rights of appeal, that exhausted his legal rights. The
obligation of the United Kingdom under the Refugee Convention not to return a
refugee to a county where his life or freedom would be threatened for a Convention
reason remained binding until the moment of return. Accordingly, three questions
arose for consideration. First, what constitutes a fresh claim? Secondly, how and by
whom is it decided whether a claim is a fresh claim or not? Thirdly, what are the
procedural consequences of a decision that a claim is or is not a fresh claim?
31. In response to the first question, it was not controversial that there had to be
a significant change from the claim as previously presented, such as might
reasonably lead a special adjudicator to take a different view.
“The acid test must always be whether, comparing the new
claim with that earlier rejected, and excluding material on
which the claimant could reasonably have been expected to rely
in the earlier claim, the new claim is sufficiently different from
the earlier claim to admit of a realistic prospect that a
favourable view could be taken of the new claim despite the
unfavourable conclusion reached on the earlier claim.” (at pp
783H-784B)
Page 18
In response to the second question, rule 328 of the Statement of Changes in
Immigration Rules made clear that all asylum applications would be determined by
the Secretary of State in the first instance. In response to the third question, no
particular difficulty arose where the Secretary of State treated the submission as a
fresh claim, whether asylum was then granted or refused. In the latter case, the same
consequences should follow as on a refusal of an initial claim. A problematic
situation arose, however, where, as on the facts of that case, the Secretary of State
did not recognise the submission as a fresh claim and, therefore, declined to take or
omit to take any action which would trigger a right of appeal. It would clearly be
open to the asylum seeker, in those circumstances, to have resort to the court to
challenge that decision. However, a question of “considerable difficulty” was
whether the court should approach this as a question of precedent fact or whether
the decision should be susceptible to challenge only on Wednesbury principles. As
the answer to the question was not determinative of the appeal, the Master of the
Rolls proffered “a tentative answer” in favour of the latter view. (at pp 784D-785D)
32. Following the decision in Onibiyo, rule 346 was amended to reflect the
judgment in that case. The amended version provided:
“Where an asylum applicant has previously been refused
asylum … the Secretary of State will determine whether any
further representations should be treated as a fresh application
for asylum. The Secretary of State will treat representations as
a fresh application for asylum if the claim advanced in the
representations is sufficiently different from the earlier claim
that there is a realistic prospect that the conditions set out in
para 334 will be satisfied. In considering whether to treat the
representations as a fresh claim, the Secretary of State will
disregard any material which:
(i) is not significant; or
(ii) is not credible; or
(iii) was available to the applicant at the time when
the previous application was refused or when any appeal
was determined.” (CM 3365)
33. In Cakabay v Secretary of State for the Home Department (Nos 2 and 3)
[1999] Imm AR 176, after the appellant’s appeals against the refusal of asylum had
been dismissed, he had submitted further evidence which the Secretary of State
Page 19
concluded did not constitute a fresh claim. The appellant purported to appeal against
this decision. The Secretary of State successfully applied for a declaration that the
appellate authorities had no jurisdiction in the matter. The judge, reviewing the
decision on Wednesbury principles, also concluded that the Secretary of State’s
decision could not be held to be unreasonable. The Court of Appeal (Peter Gibson,
Schiemann and Potter LJJ) upheld the decision. Schiemann LJ explained that the
statute made no express provision as to what is to be done in the case of repeated
claims for asylum by the same person. Nevertheless, there was a need for
categorisation and to distinguish between what he termed “a repetitious claim” and
“a fresh claim”:
“In the case of a repetitious claim no more is required to be
done: the first decision has ensured that the United Kingdom
has complied with its obligations under the Convention.
Section 6 of the 1993 Act creates no inhibition on the
claimant’s removal: the Secretary of State has on the occasion
of his decision on the first claim decided the repetitious claim.
So far as the decision on the claimant’s repetitious application
for leave to enter is concerned, the claimant will be told that
leave has already been refused and that there is no need for any
new decision.” (at p 181)
Despite the focus on “repetitious claims”, it is clear that the reasoning of Schiemann
LJ applies equally to any further submissions that failed to meet the test in rule 346.
Similarly, Peter Gibson LJ (at p 193) considered that if the representations amounted
to no more than the same claim as that which had already failed, or if the criteria of
rule 346 were not met, there would be no claim for asylum within the statute and
therefore no appeal would lie under section 8(1) of the 1993 Act against a
determination adverse to the asylum seeker that there had been no fresh claim.
Consistently with what the Court of Appeal in Onibiyo had assumed to be correct,
the court went on to hold that no appeal lay under section 8(1) of the 1993 Act from
the determination of the Secretary of State that fresh representations do not amount
to a claim for asylum. Schiemann LJ accepted that a categorisation decision has
potentially severe consequences and that, in such a context, arguments based on the
possibilities of abuse should not weigh heavily in matters of construction.
Nevertheless, Parliament had not provided for an appeal on the merits against a
categorisation decision (at p 185-186). (See also Peter Gibson LJ at p 194.)
34. In this way the courts imposed a gloss on the operation of the statutory
scheme which made no express provision for the handling of second or successive
submissions. The effect of these decisions was that it was for the Secretary of State
to decide whether further submissions amounted to a fresh claim. Where the
Secretary of State had taken a rational decision that further submissions did not
amount to a fresh claim for asylum under rule 346 of the Immigration Rules, there
Page 20
was no asylum claim to determine and therefore no need to make any decision to
refuse leave to enter. In these circumstances, no right of appeal arose under section
8 of the 1993 Act. A categorisation decision was, however, open to challenge by
judicial review.
35. On 7 November 2002 Parliament enacted the 2002 Act, which effectively
replaced the 1993 Act. The 2002 Act itself has subsequently been amended on a
number of occasions. Part 5 of the 2002 Act concerns immigration and asylum
appeals. Section 82 conferred a statutory right of appeal against an “immigration
decision” and listed what constituted an immigration decision. The grounds of
appeal included in section 84(1)(g) that removal would breach the United
Kingdom’s obligations under the Refugee Convention or would be unlawful under
section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s
Convention rights. Section 92 required an appeal to be out of country unless it
concerned one of five of the immigration decisions listed in section 82(2) or the
individual had made an asylum or human rights claim. Section 94 empowered the
Secretary of State to issue a certificate that an asylum or human rights claim was
clearly unfounded, in which case an appeal would be limited to an out of country
appeal. Section 96 empowered the Secretary of State to issue a certificate relating to
an earlier right of appeal in which a matter now relied upon could and should have
been raised, in which case an appeal could not be brought at all.
36. In October 2004 rule 353 was introduced (HC 1112).
“353. When a human rights or asylum claim has been refused
and any appeal relating to that claim is no longer pending, the
decision maker will consider any further submissions and, if
rejected, will then determine whether they amount to a fresh
claim. The submissions will amount to a fresh claim if they are
significantly different from the material that has previously
been considered. The submissions will only be significantly
different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered
material, created a realistic prospect of success,
notwithstanding its rejection.
This paragraph does not apply to claims made overseas.”
Page 21
Rule 353A was inserted by HC 82/2007.
“353A. Consideration of further submissions shall be subject
to the procedures set out in these Rules. An applicant who has
made further submissions shall not be removed before the
Secretary of State has considered the submissions under
paragraph 353 or otherwise.
This paragraph does not apply to submissions made overseas.”
37. In WM (DRC) v Secretary of State for the Home Department [2006] EWCA
Civ 1495; [2007] Imm AR 337 the Court of Appeal (Buxton, Parker and MooreBick LJJ) confirmed (per Buxton LJ at paras 8-10) that there is no provision for
appeal from a decision of the Secretary of State as to the existence of a fresh claim
and, accordingly, the court was engaged only through the medium of judicial review.
The Secretary of State’s decision as to whether there was a fresh claim was not a
fact, nor precedent to any other decision, but was the decision itself. The court could
not take that decision out of the hands of the decision maker. The decision remained
that of the Secretary of State, subject only to review on a Wednesbury basis, albeit
applying anxious scrutiny.
38. In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL
6; [2009] 1 WLR 348 the House of Lords by a majority extended the applicability
of the Onibiyo approach. The Secretary of State had rejected the applicant’s claims
for asylum and protection on human right grounds and certified the claims as clearly
unfounded under section 94(2) of the 2002 Act. As a result, the applicant had no incountry right of appeal and he was served with a decision to remove him as an illegal
immigrant. He made two further submissions, but the Secretary of State maintained
her certification of the claims as clearly unfounded. The House of Lords held by a
majority (Lord Hope dissenting) that the Secretary of State had erred in applying
section 94(2) of the 2002 Act rather than rule 353 to the further submissions. The
words “any appeal relating to that claim is no longer pending” in rule 353 should be
interpreted in accordance with the definition of a “pending” appeal in section 104 of
the 2002 Act. If there was no appeal pending, the qualifying words had no
application. Furthermore, it made sense that the rule should be disapplied during,
and only during, the currency of an appeal since if an appeal was pending further
submissions could be made to the appeal tribunal. As Lord Neuberger observed (at
para 86), it would seem silly if rule 353 only applied after an appeal had been
brought and concluded but did not apply before an appeal was brought and could
never apply in a case where no appeal had been brought.
Page 22
BA (Nigeria)
39. Some nine months after the House of Lords delivered its decision in ZT
(Kosovo) on 4 February 2009, the Supreme Court delivered its decision in BA
(Nigeria) on 26 November 2009. Mr Fordham’s primary submission is that the
Onibiyo line of authority did not survive the decision of the Supreme Court in BA
(Nigeria) and that, accordingly, there is no longer any role for rule 353 of the
Immigration Rules. BA (Nigeria) concerned two separate cases. BA, who had
previously been granted indefinite leave to remain, was served with a decision that
he would be deported on his release from prison on licence from a sentence of
imprisonment of ten years. He appealed on human rights grounds against that
decision and his appeal failed. He was served with a deportation order. BA then
made further submissions as to why he should not be deported. The Secretary of
State agreed to consider his reasons for seeking revocation of the deportation order
but declined to revoke it. Directions were then given for his removal. The other case
was that of PE who had entered the United Kingdom clandestinely. His application
for asylum was rejected by the Secretary of State. It was decided that directions were
to be given for his removal to Cameroon. He did not appeal against that decision.
Before it was put into effect, however, he was convicted and sentenced to
imprisonment for having a forged passport and using it to obtain work. The
Secretary of State decided to make a deportation order against him. PE appealed
unsuccessfully against that decision on asylum and human rights grounds. The
deportation order was signed and served on him, following which his representatives
made written representations for the decision to be reconsidered. In particular, it was
claimed that he would be persecuted in Cameroon on account of his homosexuality.
The Secretary of State declined to reconsider her decision; in her view the
representations did not amount to a fresh claim within rule 353. PE purported to
appeal against that decision but the tribunal held that it was not an appealable
decision. Both BA and PE applied for judicial review.
40. In each of these cases the refusal of the Secretary of State to revoke the
deportation order following further representations was accepted to be an
immigration decision within section 82(2)(k). It was common ground, accordingly,
that each applicant had a right of appeal under section 82(1). It was also common
ground that neither of the claims would have been certifiable under section 94 or
section 96 (although it appears that the Secretary of State took this position solely
because, so far as section 94 was concerned, it applied only “where the appellant has
made an asylum claim or a human rights claim (or both)”). The issue was whether
the right of appeal could be exercised from within the United Kingdom. (See Lord
Hope DPSC at para 14.) Section 92(1) precluded an appeal under section 82(1) by a
person while he is in the United Kingdom, unless his appeal was of a kind to which
section 92 applied. Section 92, by virtue of section 92(4)(a), applied to “an appeal
against an immigration decision if the appellant … has made an asylum claim, or a
Page 23
human rights claim, while in the United Kingdom” so that in such a case there would
be a right to an in-country appeal. Lord Hope encapsulated the issue (at para 2):
“The question is whether the expression ‘an asylum claim, or a
human rights claim’, in section 92(4)(a) of the 2002 Act
includes any second or subsequent claim that the asylum seeker
may make, or only a second or subsequent claim which has
been accepted as a ‘fresh claim’ by the Secretary of State under
rule 353 of the Statement of Changes in Immigration Rules
(1994) (HC 395).”
41. The Supreme Court (Baroness Hale JSC dissenting) held that it was not open
to the Secretary of State to rely on rule 353 and the Onibiyo reasoning to deny an incountry right of appeal in those circumstances. As Lord Neuberger MR observed in
ZA (Nigeria) at para 52, the actual decision in BA (Nigeria) was that rule 353 had
no further part to play for the purposes of section 92(4)(a) once there was an appeal
against an immigration decision. However, the reasoning by which the Supreme
Court reached that conclusion is open to different interpretations which were
formulated by Lord Neuberger in ZA (Nigeria) in the following terms (at para 51).
“Like the Administrative Court, I have not found it entirely
easy to resolve the issue of whether the Supreme Court was
saying (a) as the claimants contend, that rule 353 has no part to
play at all following the introduction of Part 5 of the 2002 Act,
or (b) as the Secretary of State argues, that rule 353 has no part
to play where there has been an appealable immigration
decision and the only issue is whether the appeal is of a kind to
which section 92 applies. Ultimately, however, again like the
Administrative Court, I have come to the conclusion that the
Secretary of State’s more limited interpretation is to be
preferred.”
42. In the present appeal, Mr Fordham has sought to persuade us that the broader
reading of BA (Nigeria) is correct and that the narrower reading favoured by Lord
Neuberger in ZA (Nigeria) is incorrect. Mr Fordham is able to point to certain
passages in the judgment of Lord Hope in BA (Nigeria) (with which Lord Scott,
Lord Rodger and Lord Brown agreed) which certainly lend support to the view that
the new scheme introduced by the 2002 Act has rendered the reasoning in Onibiyo
and rule 353 redundant. I draw attention, in particular, to the following passages.
(1) Lord Hope (at para 29), referring to section 94(2) and section 96, noted
that the new system introduced by Part 5 of the 2002 Act contains a range of
Page 24
powers that enable the Secretary of State or an immigration officer to deal
with the problem of repeat claims. It was common ground that the present
cases were not certifiable under either of these two sections. Why then, he
asked rhetorically, should they be subjected to a further requirement which is
not mentioned anywhere in the 2002 Act. He continued:
“It can only be read into the Act by, as Sedley LJ in the Court
of Appeal put it, glossing the meaning of the words ‘a … claim’
so as to exclude a further claim which has not been held under
rule 353 to be a fresh claim … The court had to do this in Ex p
Onibiyo … But there is no need to do this now. … It is not just
that there is no need now to read those words into the statute.
As Mr Husain pointed out, the two systems for excluding repeat
claims are not compatible.” (at paras 29, 30)
(2) At para 31 Lord Hope observed:
“The ground of appeal referred to in section 84(1)(g) has been
designed to honour the international obligations of the United
Kingdom. To exclude claims which the Secretary of State
considers not to be fresh claims from this ground of appeal,
when claims which he certifies as clearly unfounded are given
the benefit of it, can serve no good purpose. On the contrary, it
risks undermining the beneficial objects of the Refugee
Convention which the court in Ex p Onibiyo …, under a
legislative system which had no equivalent to section 95, was
careful to avoid.”
(3) At para 33 Lord Hope observed:
“There is no doubt, as I indicated in ZT (Kosovo) v Secretary
of State for the Home Department …, para 33, that rule 353
was drafted on the assumption that a claimant who made
further submissions would be at risk of being removed or
required to leave immediately if he does not have a ‘fresh
claim’. That was indeed the case when this rule was originally
drafted, as there was no equivalent of section 92(4) of the 2002
Act. But Mr Husain’s analysis has persuaded me that the
legislative scheme that Parliament has now put in place does
not have that effect. Its carefully interlocking provisions, when
read as a whole, set out the complete code for dealing with
repeat claims. Rule 353, as presently drafted, has no part to play
Page 25
in the legislative scheme. As an expression of the will of
Parliament, it must take priority over the rules formulated by
the executive. Rule 353A on the other hand remains in place as
necessary protection against premature removal until the
further submissions have been considered by the Secretary of
State.”
43. Similarly, Lord Rodger (at para 37), rejecting the submission that the
expression “an asylum claim” in section 92(4)(a) should be given the same meaning
as Sir Thomas Bingham MR gave to the expression “a claim for asylum” in section
6 of the 1993 Act, noted that the contexts were significantly different since the 2002
Act contains a new scheme for dealing with abusive claims.
“Given that new scheme, there is no longer the same need to
adopt the former interpretation and, indeed, the one now
adopted fits the new context better.”
44. Lord Brown (at para 44) explained that he had reached his conclusion only
on the basis that:
“the statutory solution to the problem of abuse created by the
making of repeat asylum claims lies not in construing ‘an
asylum claim’ in section 92(4)(a) of the Nationality,
Immigration and Asylum Act 2002 as the Court of Appeal in R
v Secretary of State for the Home Department, Ex p Onibiyo …
construed ‘a claim for asylum’ in section 6 of the Asylum and
Immigration Appeals Act 1993 but rather in the Secretary of
State issuing certificates where appropriate under sections 94
or 96 of the 2002 Act (no equivalent provisions having been
available under the 1993 Act).”
45. Nevertheless, there are to my mind major difficulties inherent in this reading
of BA (Nigeria). Here I find myself in total agreement with the reasoning of Lord
Neuberger on this point in ZA (Nigeria) which I gratefully acknowledge.
46. First, in principle there is no conflict between Onibiyo and rule 353 on the
one hand and the statutory scheme in Part 5 of the 2002 Act on the other. I note that
when Onibiyo was decided in 1996 there was in force a system of certification under
paragraph 5 of Schedule 2 to the 1993 Act which established special appeal
procedures for claims without foundation. With respect to Lord Hope, I do not
consider that there is any incompatibility between what he described as “the two
Page 26
systems for excluding repeat claims”. They operate at different stages of the
response to a purported renewed claim. BA (Nigeria) establishes that, as the statutory
provisions then stood, where the Secretary of State receives further submissions on
which he makes an immigration decision within section 82 there will, in the absence
of certification, be an in-country right of appeal. It decides that in those
circumstances it is not then open to the Secretary of State to rely on the Onibiyo
reasoning or rule 353 in order to contend that the submissions did not amount to a
claim and that, as a result, there is no need for a decision and no entitlement to a
statutory appeal. It is entirely understandable that in such a case there is no room for
the operation of rule 353. Onibiyo and rule 353, by contrast, address a prior issue,
namely whether there is a claim which requires a decision at all.
47. Secondly, I do not consider that the effect of the machinery introduced by
Part 5 of the 2002 Act, in particular the powers of certification under sections 94
and 96, is to render the Onibiyo reasoning and rule 353 redundant. As Lord
Neuberger observed in ZA (Nigeria) (at para 24), the issue should not be decided
simply by seeing whether sections 94 and 96 can be interpreted so as to cover every
application falling within rule 353, as it is equally valid to consider whether they
can be construed consistently with rule 353 having an independent effect. In my
view, rule 353 continues to perform a useful role notwithstanding the machinery
introduced by Part 5 of the 2002 Act.
(1) Section 94 applies to claims which are clearly unfounded, whether
they are original claims or purported renewed claims. By contrast, rule 353
applies only to supplemental submissions which purport to be claims.
(2) The effect of certification under section 94 is to limit an appeal to an
out of country appeal. Certification under section 96 has the effect that an
appeal under section 82(1) may not be brought. The effect of rule 353 is that
no right of appeal ever arises.
(3) As indicated above, where it applies rule 353 operates at a prior stage
to section 94. In the case of a purported renewed claim there is a legitimate
preliminary issue as to whether it constitutes a claim requiring a decision on
the merits at all. Rule 353 addresses that issue. Section 94, on the other hand,
proceeds on the basis that there is a valid claim which requires consideration
on the merits and a decision. It creates a machinery of certification of the
claim as clearly unfounded so as to prevent an in-country appeal.
(4) The fact that section 94 applies to both original and purported renewed
claims does not deprive rule 353 of its utility in relation to the latter category.
In appropriate cases, rule 353 relieves the Secretary of State from taking a
Page 27
decision on the merits of the application and refusing it. It operates by
enabling him to reject the submissions as not constituting a claim requiring
decision. Section 94, however, comes into play only when the Secretary of
State has considered a claim on its merits and refused it. At that stage,
certification operates to block a right to an in-country appeal which would
otherwise arise.
“Thus rule 353 can be operated as a sort of gatekeeper by the
Secretary of State to prevent further submissions amounting to,
or being treated as, a claim, thereby not getting into Part 5
territory at all.” (ZA (Nigeria) per Lord Neuberger MR at para
26)
With respect to Mr Fordham, it is not the case that this interposing function
arose only because of the additional requirement of an “immigration
decision” in the pre-2014 statutory list in section 82(1) of the 2002 Act. On
the contrary, it is founded on the need to identify what constitutes a claim for
this purpose.
(5) Section 96(1) addresses a different aspect of renewed claims from rule
353. Section 96(1) applies where a person seeks to rely on a matter that could
have been raised in an earlier appeal against an immigration decision and the
Secretary of State or the immigration officer considers that there is no
satisfactory reason for the failure to do so. It is, in a sense, the converse of
the situation addressed by rule 353.
(6) Part 5 as originally enacted included a subsection 96(3) which
provided:
“(3) A person may not rely on any ground in an appeal under
section 82(1) if the Secretary of State or an immigration officer
certifies that the ground was considered in another appeal under
that section brought by that person.”
This provision was much closer to rule 353 than is section 96(1) as both rule
353 and section 96(3) address similar situations. However, section 96(3) did
not achieve its effect by denying the existence of a claim requiring a decision
on the merits, but by requiring such a renewed claim to be treated as a fresh
claim and enabling the Secretary of State to block an appeal on the particular
ground which had been raised previously. In any event, section 96(3) is no
longer in force, having been repealed by section 30 of the Asylum and
Page 28
Immigration (Treatment of Claimants, etc) Act 2004 with effect from 1
October 2004.
48. Thirdly, there are features of the regulatory scheme which are difficult to
reconcile with an intention on the part of Parliament that provisions in Part 5 of the
2002 Act should provide a comprehensive and exclusive code for dealing with
repeat claims and that rule 353 should no longer be effective.
(1) When the 2002 Act was enacted there was no attempt to repeal or
amend rule 346, the predecessor to rule 353.
(2) Parliament has approved subsequent amendments to the Immigration
Rules which have not included the deletion of rule 353 which remains in
force.
(3) Section 53 of the Borders, Citizenship and Immigration Act 2009 (“the
2009 Act”) amended section 31A of the Senior Courts Act 1981 to permit
transfer from the High Court to the Upper Tribunal of judicial review
applications where:
“the application calls into question a decision of the Secretary
of State not to treat submissions as an asylum claim or a human
rights claim … wholly or partly on the basis that they are not
significantly different from material that has previously been
considered …”
As Lord Neuberger observed in ZA (Nigeria) (at para 19), here Parliament
has plainly legislated on the basis that rule 353 is still in force and section 53
of the 2009 Act would have been positively meaningless if rule 353 had no
further function.
(4) Following the amendment of the 2002 Act by the 2014 Act, rule 353
was amended so as to ensure that it applies to human rights claims and
protection claims (HC 1025). Once again, this is inconsistent with the
suggestion that rule 353 had become ineffective.
These features strongly suggest that rule 353 continues to perform an important
function.
Page 29
49. Fourthly, I am persuaded that the broad reading of BA (Nigeria) for which
the appellant contends is inconsistent with ZT (Kosovo) where the House of Lords
held (Lord Hope dissenting) that the Secretary of State had erred in applying section
94(2) of the 2002 Act rather than rule 353 in considering the applicant’s further
submissions. By contrast, there is no difficulty in reconciling the two decisions if
the ratio decidendi of BA (Nigeria) is merely that rule 353 has no part to play where
there is an appealable immigration decision. If the Supreme Court did decide in BA
(Nigeria) that rule 353 is entirely redundant following the introduction of Part 5 of
the 2002 Act, it must have intended to overrule or to depart from the decision of the
House of Lords some nine months earlier in ZT (Kosovo). However, BA (Nigeria)
contains no express statement to that effect. Moreover, while an earlier decision may
be impliedly overruled, it is extremely improbable that this was the intention here,
for reasons summarised by Lord Neuberger in ZA (Nigeria) as follows (at para 53):
“… I have great difficulty with the notion that the later case
relied on by the claimants overruled the earlier case. (i) Both
decisions relate to a much litigated issue, and the earlier
decision was given less than a year before the later decision;
(ii) the point at issue was directly addressed and decided in all
five reasoned judgments in the earlier decision, and even the
reasoning of the dissenter would have to be treated as
overruled; (iii) the earlier decision is expressly referred to three
times in the leading judgment, and once in the only other
reasoned judgment, in the later decision without apparent
disapproval, and both judgments were given by judges
involved in the earlier decision; (iv) the actual outcome in the
later decision can perfectly easily be reconciled with the earlier
decision, namely on the basis that the later decision is limited
to further submissions which have been treated as a fresh claim;
(v) this more limited interpretation of the later decision is
consistent with the Court of Appeal’s reasoning and conclusion
in that case, which was specifically approved by the Supreme
Court; (vi) this more limited interpretation of the later decision
is also consistent with a recent statute, whereas the wider
interpretation, which would involve overruling the earlier
decision, is not.”
50. For these reasons I agree with the Court of Appeal in ZA (Nigeria) that what
is said in BA (Nigeria) is limited to cases where there is an appealable decision. As
Lord Neuberger explained:
“Once there is such a decision, the complete code contained in
the legislative scheme applies and rule 353 has no part to play.
However, as decided in ZT (Kosovo) … , rule 353 still has ‘a
Page 30
part to play’: the Secretary of State can decide that the further
submissions are not a ‘fresh claim’, in which case one does not
enter the territory governed by the ‘complete code’ of ‘the
legislative scheme’.” (ZA (Nigeria) at para 59)
51. For these reasons, I consider that Mr Fordham’s primary case is not made
out.
The 2014 amendments to the 2002 Act
52. Part 5 of the 2002 Act was substantially amended by the 2014 Act which
restructured rights of appeal. The most relevant provisions as amended are set out at
paras 19 to 23 above. Section 82 no longer restricts a right of appeal to an appeal
against an “immigration decision” as formerly listed in section 82(2). In particular,
there is no longer any right of appeal in respect of a decision to make a deportation
order or a refusal to revoke such an order per se. Instead a person may appeal where
the Secretary of State has decided to refuse a protection claim or a human rights
claim made by that person or has decided to revoke that person’s protection status.
Post-2014 authority
53. Before drawing conclusions as to the impact of the 2014 amendments to the
2002 Act on the present proceedings, it is convenient to consider the more recent
decisions on this point.
54. In Waqar v Secretary of State for the Home Department [2015] UKUT 169
(IAC) the appellant contended that the Secretary of State’s decision not to treat his
further submissions as amounting to a fresh claim for the purposes of rule 353
amounted to a refusal of a human rights claim under section 82 as amended. The
appellant maintained that rule 353 is now subsumed within the statutory provisions
and that a right of appeal under section 82 as amended arises in all refused human
rights claims, subject only to certification under sections 94 or 96. It was submitted
that there is no longer a requirement for a categorisation step because the statutory
framework now provides all necessary safeguards against repetitious or
unmeritorious claims. In rejecting the submission, the Upper Tribunal (UTJ Coker,
UTJ Kebede) held (at paras 18, 19, 20) that BA (Nigeria) is not authority for the
proposition that submissions amount to a claim and that the response to those
submissions is a decision within the meaning of Part 5. Submissions that purport to
be a human rights claim do not without more trigger a right of appeal. There has to
be an intermediate categorisation in which rule 353 provides the mechanism to
Page 31
determine whether they amount to a claim. If they do not, the decision is not a
decision to refuse a human rights claim.
55. In R (MG) v First-tier Tribunal (Immigration and Asylum Chamber) [2016]
UKUT 283 (IAC) the applicant had made a claim for asylum which had been
rejected and his appeal had been dismissed. Further submissions on his behalf were
rejected by the Secretary of State who maintained the earlier decision that he did not
qualify for asylum and concluded that the further representations were not a fresh
claim. The applicant lodged a notice of appeal with the First-tier Tribunal which
rejected it because no notice of an appealable decision had been issued. On a
challenge to that decision by way of judicial review it was submitted, without taking
issue with the decision of the Upper Tribunal in Waqar, that as a result of
Parliament’s decision to grant a right of appeal from a refusal of a protection claim
the judge in the First-tier Tribunal has jurisdiction to decide whether there had been
a decision to refuse a protection claim. The Upper Tribunal (Blake J and UTJ Grubb)
rejected the submission.
“In our view, notwithstanding the significant change in section
82 from a right of appeal against an immigration decision on a
protection ground to a right of appeal against a protection
decision itself, Parliament can be presumed to have legislated
against the background of satisfaction with the previous law as
declared in ZA (Nigeria). There is no indication in the
amendments made, that it was intended to transfer
responsibility for the categorisation decision of whether a claim
is a fresh claim to the FtT. Indeed, the general purpose of the
2014 amendments was to reduce the appellate jurisdiction of
the FtT.” (at para 14)
They further held that an assessment of whether a protection claim is a fresh claim
is not a question of jurisdictional fact but a matter of assessment and evaluation for
the Secretary of State subject to supervision by judicial review. Furthermore, when
the Secretary of State concludes that the claim before her is not a fresh claim she
does not refuse a protection claim.
56. In R (Sharif Hussein) v First-Tier Tribunal (para 353: present scope and
effect) IJR [2016] UKUT 409 (IAC); [2017] Imm AR 84 the applicant’s appeal
against a deportation order had been dismissed. He made further submissions in
support of a request to revoke the order which were rejected by the Secretary of
State who also concluded that they did not amount to a fresh claim within rule 353.
The First-tier Tribunal held that there was no exercisable right of appeal. The issue
in the judicial review which followed was to what extent, if at all, the Secretary of
State could utilise rule 353 to preclude the applicant from appealing to the First-tier
Page 32
Tribunal under section 82. The applicant, first, relied on the judgment of Lord Hope
in BA (Nigeria) in support of the proposition that rule 353 had no part to play
following the introduction of Part 5 of the 2002 Act. Secondly, he submitted that the
effect of the 2014 amendments to the 2002 Act was that rule 353 no longer applied
to the categorisation issue as to whether submissions were a “claim” within section
82 and was now relevant only to certification issues. The Upper Tribunal (Dove J
and Peter Lane UTJ) rejected both submissions. It was bound by ZA (Nigeria) to
reject the first submission. With regard to the second submission it considered that
despite the changes made by the 2014 Act the concept of a “claim” remained central
to the new section 82. It also noted that if Parliament had intended to limit rule 353
to certification decisions, it would have been amended to make that clear. In fact,
the amendment to rule 353 made following the 2014 Act to ensure that it applies to
human rights claims and protection claims demonstrated that it was intended to have
continuing effect.
57. These matters have been considered recently by the Court of Appeal (Arden
and Sales LJJ) in Secretary of State for the Home Department v VM (Jamaica)
[2017] EWCA Civ 225; [2017] Imm AR 1237, a judgment delivered shortly before
that of the Court of Appeal in the present case. Sales LJ described the relationship
of section 82(1) and rule 353 in the clearest terms (at para 28):
“Section 82(1) and paragraph 353 of the Immigration Rules
operate in combination. If the Secretary of State decides that
new representations in relation to some earlier decision
(whether of her own or by the tribunal) which is now final and
closed do not amount to a fresh claim under paragraph 353 she
will simply reject the representations as matters which do not
affect the position of the applicant within the regime of
immigration law. In that sort of case, on the assessment of the
Secretary of State the representations do not amount to a
‘claim’ by the applicant, so her decision is not a decision ‘to
refuse a human rights claim’ (or any other sort of claim) within
the scope of section 82(1). No right of appeal arises in relation
to her decision that the new representations do not amount to a
fresh claim. Such a decision can only be challenged by way of
judicial review. On this point I agree with the decision of the
UT in Waqar v Secretary of State for the Home Department
(Statutory Appeals/paragraph 353) [2015] UKUT 169 (IAC)
at paras 19-20.”
Page 33
The effect of the 2014 amendments
58. The second principal submission on behalf of the appellant is that the
amendments made in 2014 to Part 5 of the 2002 Act have effected a fundamental
change in the operation of the statutory scheme with the result that, whatever may
have been the position after BA (Nigeria), rule 353 no longer applies and accordingly
no longer performs a gatekeeper function.
59. First, on behalf of the appellant, Mr Fordham points to the fact that section
82, as amended, now confers a right of appeal where the Secretary of State has
decided to refuse “a human rights claim” (section 82(1)(b)). “Human rights claim”
is defined by section 113(1) for the purposes of Part 5 unless a contrary intention
appears. Mr Fordham submits that this is striking because the question of the Part 5
meaning of “human rights claim” is the same question that previously arose for
decision in the Supreme Court in BA (Nigeria) which established that those words,
as they appear in Part 5 of the 2002 Act, are to be interpreted without reference to
rule 353. Thus, he submits, a second or subsequent human rights claim is a “human
rights claim” for the purpose of those statutory provisions regardless of whether the
Secretary of State accepts or refuses to accept that the claim is a fresh claim within
rule 353. I am unable to accept this submission. In BA (Nigeria) the Supreme Court
considered that there was, in each of the cases, a “human rights claim” within section
92(4)(a) and, therefore, an appeal would be an in-country right of appeal, subject to
the possibility of certification which did not arise in that case. However, the reason
there was an entitlement to appeal there was because the human rights claims had
resulted, in each case, in a refusal to revoke a deportation order which was a
qualifying immigration decision under section 82(2)(k). It was this which excluded
the operation of rule 353. Consequently, the present issue is not the same issue that
previously arose for consideration in BA (Nigeria). The issue in the present case, as
previously explained, is the prior question of whether there is a claim at all. For the
same reason, it is not the case that rejection of Mr Fordham’s submission results in
the same words bearing different meanings in different sections within Part 5 of the
2002 Act.
60. Secondly, Mr Fordham relies on the fact that the 2014 amendments remove
the former requirement of an “immigration decision” to which the “human rights
claim” and its rejection needed to have a nexus. He submits that the effect of the
simplified scheme is that any submission that removal would breach a relevant
obligation will amount to a human rights or protection claim, the rejection of which
will give rise to a right of appeal. Once again, I am unable to accept this submission.
The appellant is not assisted by the fact that under the amended section 82 there is
no longer a requirement to establish an “immigration decision” within the list
previously set out in section 82(2). In fact, the contrary is the case. A decision to
refuse to revoke a deportation order was formerly an “immigration decision” under
section 82(2)(k) and therefore gave rise to an in-country right of appeal, subject to
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the possibility of certification, but this is no longer the case. The 2014 amendments
limit immigration appeals to circumstances in which there has been a refusal of a
protection claim or a human rights claim, or where protection status has been
revoked. (For present purposes I will concentrate on human rights claims.) However,
the structure and operation of section 82 remain unchanged. Under the amended
section 82(1) a person may appeal to the tribunal where the Secretary of State has
decided to refuse a human rights claim made by him, but this does not relieve that
person of the burden of establishing that the refusal was in response to a valid claim.
The definitions in Part 5 do not address this question and the answer will depend on
the application of the Onibiyo line of authority. Onibiyo, Cakabay, ZA (Nigeria) and
VM (Jamaica) establish that there will only be a human rights claim to be determined
if further submissions are considered to amount to a fresh claim. Rule 353, in turn,
is directed at the manner in which a court should approach that prior question. Under
the post-2014 provisions it remains the case that if there is no claim, there is no
appealable decision.
61. Thirdly, Mr Fordham makes a series of submissions relating to the intention
of Parliament in enacting the 2014 amendments. In his submission, Parliament used
straightforward language for the purposes of the section 82 statutory right of appeal.
If, he submits, it had been the intention to maintain the structure for which the
Secretary of State contends, Parliament would be expected to make that clear, but
the contrary is the case. Parliament did not introduce Sir Thomas Bingham’s “acid
test” into the definition of “asylum claim” in Part 5 of the 2002 Act. Parliament did
not provide that “claim” was to be construed in accordance with the Immigration
Rules, as it did in the case of “humanitarian protection” in section 82(2)(d) of the
2002 Act introduced by amendment in 2014. It did not say that “claim” involved an
act by the Secretary of State, giving the Secretary of State a gatekeeper function as
to what constitutes a claim. It did not impose an exclusion by reference to the
Immigration Rules in any statutory provision which is in force. Here Mr Fordham
draws attention to the fact that section 12 of the Immigration, Asylum and
Nationality Act 2006 (“the 2006 Act”) has never been brought into force. It provides
that “human rights claim” “does not include a claim which, having regard to a former
claim, falls to be disregarded for the purposes of this Part in accordance with
immigration rules”. Parliament did not say that the Part 5 right of appeal is subject
to exceptions or limitations specified in the Immigration Rules. Rather section 82(3)
states that the right of appeal under subsection (1) “is subject to the exceptions and
limitations specified in this Part”. Mr Fordham submits that such clarification might
have been expected in the light of BA (Nigeria).
62. The difficulty with these submissions is that they fail to take account of the
principle of informed interpretation and the judicial authorities on Part 5 as they
stood at the date of the 2014 amendments. Parliament is normally presumed to
legislate in the knowledge of and having regard to relevant judicial decisions. (See,
generally, Bennion on Statutory Interpretation, 7th ed, (2017) section 24.6.) In the
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present context, the Court of Appeal in ZA (Nigeria) had provided an authoritative
explanation of the effect of BA (Nigeria). As Sir James Eadie put it in his
submissions, Parliament can therefore be assumed to have legislated in the light of
a consistent line of authority which established that a purported human rights claim
that did not meet the threshold of a fresh claim under rule 353 was not a claim at all.
Had Parliament intended to depart from this approach, it would surely have made
express provision to that effect. On the contrary, there is nothing in the amendments
made in 2014 which supports the view that Parliament intended to open the door so
as to enable repeated claims raising human rights issues to generate multiple appeals.
(See, in this regard, Hussein per Dove J and UTJ Lane at para 42.)
63. I should, for the sake of completeness, address two further matters arising
from Mr Fordham’s submissions in this regard. First, it would not be appropriate to
speculate as to why section 12(3) of the 2006 Act has not been brought into force
but, in any event, in seeking to ascertain the intention of Parliament the court must
have regard to the legislation as enacted. (See ZA (Nigeria) per Lord Neuberger MR
at para 57.) Secondly, the explanatory notes to the 2006 Act state that the
amendments to the definition of “human rights claim” and “asylum claim” in section
113 of the 2002 Act were made to “clarify that further submissions which follow the
refusal of an asylum or human rights claim but which do not amount to a fresh claim
will not carry a further right of appeal”.
Conclusion
64. For these reasons I consider that the Court of Appeal was correct to conclude
that “a human rights claim” in section 82(1)(b) of the 2002 Act as amended means
an original human rights claim or a fresh human rights claim within rule 353. More
generally, where a person has already had a protection claim or a human rights claim
refused and there is no pending appeal, further submissions which rely on protection
or human rights grounds must first be accepted by the Secretary of State as a fresh
claim in accordance with rule 353 of the Immigration Rules if a decision in response
to those representations is to attract a right of appeal under section 82 of the 2002
Act.
65. For these reasons I would dismiss the appeal.
66. Finally, I draw attention to two recent developments. First, in July 2018
Justice published a report on Immigration and Asylum Appeals by a Working Party
chaired by Professor Sir Ross Cranston which highlights the pressures facing the
current appeals system. Secondly, since the oral hearing on this appeal the Law
Commission has published a consultation paper on the Immigration Rules which
seeks to identify the underlying causes of their complexity, and to identify principles
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under which they can be redrafted to make them simpler and more accessible (Law
Commission: Simplification of the Immigration Rules; CP 242, 21 January 2019).
The Law Commission’s initiative is timely and welcome. As will be apparent from
this judgment, the structure of both primary and secondary legislation in this field
has reached such a degree of complexity that there is an urgent need to make the law
and procedure clear and comprehensible.