The Supreme Court held that, once a protection or human rights claim has been refused and no appeal is pending, further submissions on those grounds attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 only if the Secretary of State first accepts them as a fresh claim under rule 353 of the Immigration Rules. The appellant’s further submissions, concerning the birth of his British son, had been rejected on that basis. The Court dismissed his appeal.
The issue
The appeal concerned the right of appeal under Part 5 of the Nationality, Immigration and Asylum Act 2002, as amended in 2014. The question was whether, after a protection claim or human rights claim has been refused and there is no pending appeal, further submissions relying on protection or human rights grounds must be accepted by the Secretary of State as a fresh claim under rule 353 of the Immigration Rules before a decision on those submissions can attract a right of appeal under section 82.
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The facts
Mr Robinson came to the UK from Jamaica as a child. After his criminal convictions, the Home Secretary decided to deport him.
He appealed against deportation on human rights grounds. That appeal failed and his appeal rights were exhausted.
His solicitors then made further human rights submissions based on a change in his family circumstances. The Home Secretary considered the material under paragraph 353 of the Immigration Rules and decided it did not amount to a fresh claim.
Further representations followed the birth of his child. The Home Secretary again decided that the new material did not amount to a fresh claim.
On 5 August 2015 notice of appeal was given against the decision of 31 July 2015. The First-tier Tribunal declined jurisdiction because there was no right of appeal. The appellant sought judicial review of the Secretary of State’s decisions and the removal directions, later adding a challenge to the Tribunal’s decision. The Upper Tribunal held that there was no right of appeal, that the letters were not refusals to revoke the deportation order, and that the decisions were lawful under rule 353. The Court of Appeal dismissed the appeal. The Supreme Court granted permission to appeal.
The reasoning
Lord Lloyd-Jones, with whom Lady Hale, Lord Wilson, Lady Black and Lady Arden agreed, traced the approach to second and subsequent submissions to the Court of Appeal’s decision in Onibiyo. That decision treated it as for the Secretary of State to decide whether further submissions were a fresh claim. A rational decision that they were not meant there was no claim and therefore no right of appeal, although the categorisation could be challenged by judicial review. Rule 353, in substantially its present form since 2004, provides that once a human rights or protection claim has been refused and any appeal is no longer pending, further submissions amount to a fresh claim only if they are significantly different: their content had not already been considered and, taken with the previously considered material, created a realistic prospect of success.
The appellant argued that this approach did not survive BA (Nigeria), and that the 2014 amendments removed any role for rule 353, so that any second or subsequent human rights claim attracted a right of appeal subject only to certification under sections 94 and 96. The Court rejected both arguments. It adopted the narrower reading of BA (Nigeria) given in ZA (Nigeria): once there is an appealable decision, rule 353 has no further part to play, but it continues to govern the prior question of whether further submissions amount to a claim at all. Rule 353 and the certification powers operate at different stages and are compatible. Later legislation, including provision for transferring certain judicial reviews and the post-2014 amendment of rule 353 itself, proceeds on the basis that the rule remains effective. A broader reading would also be difficult to reconcile with ZT (Kosovo).
The 2014 amendments limited appeals to refusals of protection or human rights claims and revocations of protection status, removing the former list of immigration decisions. They did not remove the need to show that there was a valid claim. Parliament is presumed to have legislated in the knowledge of the existing authorities. Nothing in the amendments indicated an intention to allow repeated submissions to generate appeals without first meeting the fresh-claim test. The Court agreed with the Upper Tribunal decisions in Waqar, MG and Hussein, and with the Court of Appeal in VM (Jamaica), that a conclusion that further submissions are not a fresh claim is not a refusal of a human rights claim under section 82 and is challengeable only by judicial review.
The expression a human rights claim in section 82(1)(b) therefore means an original human rights claim or a fresh human rights claim within rule 353. The same reasoning applies to protection claims. Because the appellant’s further submissions had not been accepted as a fresh claim, the decisions did not attract a right of appeal.
Verdict: The Court unanimously dismissed Mr Robinson’s appeal. The further submissions had not been accepted as a fresh claim under paragraph 353, so their rejection carried no new statutory right of appeal.
Source: Robinson (formerly JR (Jamaica)) v Secretary of State for the Home Department [2019] UKSC 11
