R (BA (Nigeria) and another) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LADY HALE,LORD HOPE,LORD BROWN,LORD RODGER,LORD SCOTT |
| Judgment Date | 26 November 2009 |
| Neutral Citation | [2009] UKSC 7 |
| Date | 26 November 2009 |
| Court | Supreme Court |
and others
[2009] UKSC 7
Lord Hope, Deputy President
Lord Scott
Lord Rodger
Lady Hale
Lord Brown
Appellant
Elisabeth Laing QC
Deok Joo Rhee
(Instructed by Treasury Solicitors)
Respondent (BA)
Raza Husain
Ronan Toal
(Instructed by Turpin and Miller Solicitors)
Respondent (PE)
Raza Husain
Ronan Toal
(Instructed by Wilson and Co.)
The ability of asylum seekers who make unsuccessful claims to be allowed to remain to discover further reasons why they should not be removed from the country where they seek refuge is an inescapable feature of any system that is put in place to meet a State's obligations under the Geneva Convention on the Status of Refugees and article 3 of the European Convention on Human Rights. The opportunity for further reasons to be put forward is enhanced by the fact that a series of decisions may need to be taken before a person's immigration status is resolved. Various measures have been put in place by the United Kingdom to deal with this phenomenon. Some of these measures are to be found in the Immigration Rules, and on occasion the meaning that is to be given to them is the subject of controversy: see ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348.
In this case however we are concerned with meaning and effect of the statute. The relevant provisions are to be found in Part 5 of the Nationality, Immigration and Asylum Act 2002, which deals with immigration and asylum appeals. 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 Immigration Rules.
The facts
The first respondent BA is a citizen of Nigeria. He is married to a British citizen, by whom he has four children. He entered the United Kingdom in 1988 as a visitor. Initially he was given six months leave to enter. Later he was granted leave to remain as a student until the end of August 1991. He was granted indefinite leave to remain on 25 May 1994 on the basis of his marriage. On 20 May 2005, however, he was served with a decision by the Secretary of State that he was to be deported following his release on licence from a 10 year sentence of imprisonment for conspiracy to import class A drugs. His appeal against this decision to the asylum and immigration tribunal on human rights grounds failed. On 25 May 2007 he was served with a deportation order. On 25 June 2007 and 8 August 2007 further submissions were made on his behalf 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 she declined to revoke it. Directions were then given for him to be removed from this country on 29 December 2007.
The respondent PE is a citizen of Cameroon. He entered the United Kingdom clandestinely in August 2004. On 19 May 2005 he applied for asylum. The Secretary of State refused his application on 5 July 2005. On 9 July 2005 it was decided that directions were to be given for his removal to Cameroon. He did not appeal against this decision. Before it was put into effect however he was sentenced to twelve months imprisonment for having a forged passport and using it to obtain work, to which he had pleaded guilty. As a result of this conviction the Secretary of State decided to make a deportation order against him. He appealed against this decision on asylum and human rights grounds, but his appeal was dismissed. The deportation order was signed, and it was served on him on 10 January 2007. On various dates thereafter his representatives made written representations on his behalf for the decision to be reconsidered. They claimed that he had been and would be persecuted in Cameroon on account of his homosexuality. The Secretary of State declined to reconsider her decision, as in her view his further representations did not amount to a fresh claim within the meaning of rule 353 of the Immigration Rules. He appealed to the tribunal against the Secretary of State's refusal to revoke her decision to make the order. The tribunal held that this decision was not an appealable decision.
On 27 December 2007 BA applied for judicial review of the directions for his removal. He contended that he had a further in-country right of appeal. It was no part of his case that his further representations amounted to a fresh claim under rule 353 of the Immigration Rules. PE had already applied for judicial review of the decisions that had been made against him. He claimed that he had a right of appeal against a refusal to revoke the deportation order, that this right was exercisable in-country and that in any event the representations amounted to a fresh claim under rule 353. Permission was given in each case, and the applications were heard together by Blake J: [2008] EWHC 1140 (Admin); [2008] 4 All ER 798. The judge held that what determined whether there was an in-country right of appeal was whether or not the Secretary of State was satisfied under rule 353 there was a fresh claim: para 62. In his opinion neither claimant had an in-country right of appeal simply by virtue of having made a protection claim or having made fresh representations supported by different material: para 74. In PE's case he quashed the decision that his was not a fresh claim and remitted it for redetermination by the Secretary of State. He said that if the Secretary of State were to conclude that the claim is a fresh one but it was still refused, PE would have access to a right of appeal in-country before removal. But if it was not a fresh claim, his right to appeal would have to be exercised from abroad. As Sedley LJ observed in the Court of Appeal, this conclusion raises the same issue as that raised by BA's appeal: [2009] EWCA Civ 119; [2009] 2 WLR 1370, para 4.
Rule 353 of the Immigration Rules, on which the Secretary of State relies, is headed "Fresh claims". It provides:
"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."
Rule 353A, which needs to be read together with rule 353 to complete the picture, provides:
"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."
This Act was passed in the light of strong pressure to streamline appeals against immigration decisions in the light of objections that were taken to the large number of repeat claims. Part 5 of the Act provides a general right of appeal against an immigration decision to an adjudicator: section 82(1). The expression "immigration decision" is defined in section 82(2). It includes, among other things, a decision that a person is to be removed from the United Kingdom who is here unlawfully, a decision to make a deportation order under section 5(1) of the Act and a refusal to revoke a deportation order under section 5(2): sections 82(2)(g), (j) and (k). Having defined this expression, the statute proceeds to lay down an elaborate system for the handling of appeals.
Section 84(1) provides that an appeal under section 82(1) against an immigration decision must be brought under one or more of the grounds specified in that subsection. They include the following ground, with a view to ensuring that the United Kingdom complies with its international obligations:
"(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."
This is the ground on which both BA and PE rely.
Section 92, as amended, provides:
"(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.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d),(e), (f)… and (j).
(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if –
(a) at the time of the refusal the appellant is in the United Kingdom, and
(b) on his arrival in the United Kingdom the appellant had entry clearance. …
(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
(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
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