This is an appeal in the Supreme Court before Lady Hale (President), Lord Wilson, Lady Black, Lord Lloyd-Jones, Lady Arden and concerning the statutory right of appeal against decisions by the Secretary of State for the Home Department (“SSHD”) to refuse protection claims and human rights claims under Part 5 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) as amended by the Immigration Act 2014.
Facts and chronology
The appellant was a Jamaican national who arrived in the UK aged 7 on 09/10/98. He had several criminal convictions which triggered deportation proceedings against him. A deportation order was issued by the SSHD on 13/07/13. The appellant challenged this decision to the First-tier Tribunal (Immigration and Asylum Chamber) (‘FTT’) on the basis that any deportation would be in breach of his private life under both the Immigration Rules and his private life under Article 8 ECHR. It was accepted at the time that there was no established family life in the UK. His appeal was dismissed and the appellant exhausted all his rights of appeal on 01/05/15.
On 13/05/15 further submissions were made to the SSHD on the basis that the appellant’s partner at that time was pregnant with his child.
The SSHD treated those representations as an application to revoke the deportation order even though they did not specifically request it neither did they mention the appellant’s human rights. A decision by the SSHD on 23/06/15 concluded that the deportation order would not breach the appellant’s human rights, refused to revoke the deportation and decided not to treat the further submissions as a fresh claim for human rights attracting a right of appeal under paragraph 353 of the Immigration Rules (‘rule 353’).
The current rule 353 has been in force since February 2015 and 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 When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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.”
The appellant’s son was born on 26/07/15 and further submissions regarding this fact were made to the SSHD on 28/07/15. The SSHD refused the application on 31/07/15 for the same reasons as the earlier refusal.
The appellant appealed the decision of 31/07/15 to the FTT, however, the tribunal declined jurisdiction on the basis that there was no right of appeal against it. The Upper Tribunal (Immigration and Asylum Chamber) dismissed the appellant’s application for judicial review and on 04/05/17 the Court of Appeal also dismissed the appellant’s appeal.
The appellant appealed to Supreme Court arguing that although the case of R v Secretary of State for the Home Department Ex p Onibiyo  QB 768, had established that it was for the Secretary of State to decide whether further submissions constituted a fresh claim giving rise to a right of appeal this was inconsistent with the interpretation of Part 5 of the 2002 Act (as amended) and the Supreme Court’s own decision of BA (Nigeria) v Secretary of State for the Home Department  UKSC 7 .
In short, the appellant sought to argue that any second or subsequent submission which was a “human rights claim” attracted an in-country right of appeal whether or not the individual had made a previous claim on the same or different basis that removal would breach a relevant obligation.
Question of law
The question for the court was as follows: where a person has already had a human rights claim refused and there is no pending appeal, do further submissions that rely on human rights grounds have to be accepted by the Secretary of State as a fresh claim in accordance with rule 353 if a decision in response to those representations is to attract an in-country right of appeal?
The reasoning of the Supreme Court
The court held that Parliament did not intend the 2002 Act to provide a comprehensive code for dealing with repeat claims or for rule 353 to no longer to be effective.
R v Secretary of State for the Home Department Ex p Onibiyo  QB 768, established that it was for the Secretary of State to decide whether further submissions constituted a fresh claim giving rise to a right of appeal and was consistent with BA (Nigeria) v Secretary of State for the Home Department  UKSC 7 which established that, where the Secretary of State received further submissions on which she makes an immigration decision, in the absence of certification, there would be an in-country right of appeal. This was because both Onibiyo and rule 353, by contrast, addressed the prior issue of whether there was a claim requiring a decision at all.
There was nothing in the 2014 Immigration Act amendments to Part 5 of the Immigration Rules to suggest Parliament intended to enable repeated claims raising human rights issues to generate multiple appeals. Therefore, a “human rights claim” in section 82 of the amended 2002 Act meant original human rights claim or fresh human rights claim within rule 353. As a result, the Secretary of State’s rejection of the appellant’s further submissions did not attract a right of appeal.
The appellant’s appeal was dismissed.