R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) ('fresh claim'; para 353: no appeal)
| Jurisdiction | UK Non-devolved |
| Judge | Hon Mr Justice Blake |
| Judgment Date | 13 April 2016 |
| Neutral Citation | [2016] UKUT 283 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 April 2016 |
[2016] UKUT 283 (IAC)
The Hon Mr Justice Blake
UPPER TRIBUNAL JUDGE Grubb
Upper Tribunal
(Immigration and Asylum Chamber)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) IJR
1. A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First-tier Tribunal under s.82 of the Nationality, Immigration and Asylum Act 2002 (as amended by s.15 of the Immigration Act 2014).
2. Whilst the First-tier Tribunal must determine whether it has jurisdiction to entertain an appeal, it cannot decide whether a decision that further submissions do not amount to a fresh claim under para 353 was lawful or correct. Such a decision can only be challenged on public law principles in judicial review proceedings.
For the Applicant: Mr A Mackenzie instructed by Duncan Lewis, Solicitors
For the Interested Party: Ms Lisa Busch QC and Mr A Byass instructed by Government Legal Department
We make an anonymity order in this case under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended), given the subject matter. The order requires that (i) any report of this decision shall refer to the applicant by initials; (ii) the parties to these proceedings shall not disclose the applicant's identity to any person unconnected with the proceedings. Any disclosure and breach of this order may amount to a contempt of court. This order shall remain in force unless revoked or varied by a Tribunal or Court.
The applicant is a citizen of Iran. In June 2012 he made a claim for asylum on the basis of his activities as a practising Christian. The claim was rejected and an appeal dismissed in August 2012 on the basis that his interest in Christianity was not sincere.
On 31 March 2015 his solicitors submitted further representations indicating that he had now been baptised into the Christian faith and he should now be granted asylum. It was contended that by reason of the fresh information this was a fresh claim for asylum within the meaning of rule 353 of the Immigration Rules.
Those representations were considered and rejected by the Secretary of State on 1 May 2015. It was concluded:
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i. The applicant did not qualify for leave to remain on any basis;
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ii. The previous decision should not be reversed and accordingly the applicant did not qualify for asylum;
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iii. There was no well-founded fear of persecution or serious harm;
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iv. The further representations were not a fresh claim as they would not lead to any different outcome.
The applicant lodged a notice of an appeal with the FtT IAC. He contended that he had made a protection claim that had been refused by the Secretary of State and as such he had a right of appeal to the Tribunal against such a decision by virtue of s.82(1)(a) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014.
The FtT judge considered this contention in a preliminary ruling and rejected it because no notice of an appealable decision had been issued. It is common ground before us that the reasons for this decision were insufficient to inquire into whether there had been an appealable decision made. The interested party nevertheless contended that the FtT judge came to the right conclusion because no appealable decision had been made.
Permission to challenge the decision by way of judicial review was granted by Dove J on 28 January 2016. This is the hearing of the substantive application.
Mr Mackenzie is conscious that the same subject matter was considered by the Upper Tribunal in the case of R (Waqar) v SSHD [2016] UKUT 133 (IAC). In that case it was contended that the changes made to s.82 of the 2002 Act meant that there was a right of appeal from any refusal of a protection claim, and the distinction made in para 353 of the Immigration Rules between a claim and a fresh claim no longer had any effect. The UT disagreed applying the judgment of Lord Neuberger MR in ...
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