R (on the Application of Robinson) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lady Hale,Lord Wilson,Lady Black,Lady Arden |
| Judgment Date | 13 March 2019 |
| Neutral Citation | [2019] UKSC 11 |
| Date | 13 March 2019 |
| Court | Supreme Court |
[2019] UKSC 11
Lady Hale, President
Lord Wilson
Lady Black
Lord Lloyd-Jones
Lady Arden
Appellant
Michael Fordham QC
Ronan Toal
Catherine Robinson
(Instructed by Duncan Lewis Solicitors)
Respondent
Sir James Eadie QC
David Blundell
Toby Fisher
(Instructed by The Government Legal Department)
Heard on 15 November 2018
( with whom Lady Hale, Lord Wilson, Lady Black and Lady Arden agree)
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?
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.
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.
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.
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.
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.
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.
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.
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.
On 18 July 2015 the Secretary of State gave directions for the appellant's removal to Jamaica on 9 August 2015.
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.
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.
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.
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.
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.
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.
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.
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.
(2) In this Part ‘immigration decision’ means —
(a) refusal of leave to enter...
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