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Fresh Claims and no right of appeal

Posted by Ruken Sahin on August 01, 2016

R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) IJR [2016] UKUT 00283 (IAC)

Article 8: Public Interest Considerations

Fresh Claims and no right of appeal

R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) IJR [2016] UKUT 00283 (IAC)

This was a Judicial Review hearing in the Upper Tribunal (UT) heard before the Hon Mr. Justice Blake and Upper Tribunal Judge Grubb.

The Applicant sought to challenge the First-tier Tribunal’s (FtT) contention that the refusal of the Applicant’s fresh claim did not attract a right of appeal. The determination was promulgated on 13/04/16.

Brief Facts:

The Applicant, a citizen of Iran made a claim for asylum during June 2012 on the basis of his activities as a Christian. The Secretary of State refused the Applicant’s asylum claim and dismissed his appeal in August 2012. It was concluded that his said faith in Christianity was fabricated and insincere.

On 31/03/15, the Applicant’s legal representatives submitted further representations advanced as a fresh claim on the basis that the Applicant had been baptised into the Christian faith.

On 01/05/15, the Secretary of State refused the Applicant’s fresh claim. It was determined that the further representations did not amount to a fresh claim as required under 353 of the Immigration Rules. Put briefly, it was concluded that:

  1. The Applicant did not qualify for leave to remain
  2. He did not have a well-founded fear
  3. His further representations would not have lead to a different outcome and therefore, the previous decision should not be reversed.

The Applicant lodged a notice of appeal with the FtT under s.82(1)(a) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014.  The Applicant argued that the Secretary of State had refused his protection claim and therefore, should be given a right of appeal. The FtT rejected this as “no notice of an appealable decision had been issued”.

The Applicant subsequently lodged a Judicial Review (JR).

Judicial Review proceedings:

On 28/01/16, permission to challenge the decision of the FtT by way of a JR was granted by Dove J.

Counsel for the Applicant was aware that the issue at question was also considered by the UT in the recent case of R(Waqar) v SSHD UKUT 133 (IAC). In that case, the UT held that the current statutory appeal regime requires a decision to be made on a human rights claim. Without a valid claim i.e. under paragraph 353 of the rules and without a decision, there is no appeal. If there was a recognized claim under paragraph 353, its refusal should attract a right of appeal.

Submissions by the Applicant’s counsel:

The following arguments were raised against the FtT:

  1. That there would be an appealable decision if there is a refusal of a protection claim. If there is no refusal of a protection claim, a preliminary ruling would have concluded that there is no such decision and that the FtT would have no jurisdiction.
  1. In understanding whether a protection claim had been made and refused, it is important to figure out whether the further representations are in fact a fresh claim. It is therefore necessary for the FtT to reach a view on that issue.
  1. Finally, whether or not the claim for protection is a fresh claim is a matter for determination by the FtT similarly as to whether a fee had been paid and accordingly whether a proper application had been made.

The UT’s comments:

The UT made a number of comments in response to the Applicant’s submissions.

It was noted that in the legislative amendments, there is no indication that it is intended for the FtT to have the responsibility to categorise a decision of whether it amounts to a fresh claim. The general purpose of the amendments to the legislative provisions was to reduce the FtT’s appellate jurisdiction.

The UT reiterated that it is the responsibility of the Secretary of State to make an assessment.

The UT also noted that they do not accept that the Secretary of State refused a protection claim when she had rationally concluded that the claim before her was not a fresh claim.

Conclusions of the UT:

In light of the above reasoning, the Applicant failed in his application for Judicial Review and it was deemed that the FtT had reached the correct conclusion of there being no right of appeal.