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R (on The Application of Sharif Hussein) v First-Tier Tribunal (Para 353: Present Scope and Effect) (IJR)

Judgment Immigration Appeal Reports Cited authorities 50 Cited in 10 Precedent Map Related
JurisdictionUK Non-devolved
JudgePeter Lane,JUDGE
Judgment Date08 August 2016
Neutral Citation[2016] UKUT 409 (IAC)
Date08 August 2016
CourtUpper Tribunal (Immigration and Asylum Chamber)
Categories

The Queen (On the Application of)

Amin Sharif Hussein
Applicant
and
First-Tier Tribunal
Respondent
Secretary of State for the Home Department
Interested Party

[2016] UKUT 409 IAC

Before

THE HON. Mr Justice Dove (SITTING AS A JUDGE OF THE UPPER TRIBUNAL)

UPPER TRIBUNAL JUDGE Peter Lane

Upper Tribunal

(Immigration and Asylum Chamber)

Field House,

Breams Buildings

London

EC4A 1WR

R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR

(1) Lord Neuberger's judgment in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 is an authoritative pronouncement on the scope of the Supreme Court's judgments in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7 .

(2) Parliament's actions in amending paragraph 353 (fresh claims) of the immigration rules in the light of the changes to the appeal regime made by the Immigration Act 2014, together with its decisions:-

(i) to amend, but without bringing into force, the prospective amendments made in 2006 to the definition of “human rights claim” in section 113 of the Nationality, Immigration and Asylum Act 2002; and

(ii) to amend the existing definition of “human rights claim” in the light of the 2014 Act,

show that Parliament intends paragraph 353 to be used to determine whether further submissions constitute a fresh human rights claim for the purpose of “new” section 82 of the 2002 Act.

(3) If, in the post-2014 Act world, Parliament had intended paragraph 353 to apply only to the Secretary of State's certification decisions, then Parliament would have made this plain. If the applicant were correct that paragraph 353 currently has only such a limited ambit, commencing the 2006 amendments to section 113 of the 2002 Act would not enable the Secretary of State to make any significantly greater and/or coherent use of paragraph 353.

(4) Parliament's decision to leave in place the expressions “submissions” and “if rejected” in paragraph 353 are indicative that they continue to serve the function of permitting the Secretary of State to categorise cases as between those that do not amount to a claim at all and those which, though rejected, amount to a fresh human rights claim for the purposes of “new” section 82.

(5) The Secretary of State is not the sole arbiter of whether, in any particular case, she has made a decision to refuse a human rights claim, as opposed to refusing to treat submissions as amounting to a fresh claim.

For the applicant: Mr R Toal, Counsel, instructed by Wilsons Solicitors

For the interested party: Mr T Fisher, Counsel, instructed by the Government Legal Department

The respondent was not represented

(8 August 2016)

Peter Lane JUDGE
A. Introduction
1

As a result of the amendments made by the Immigration Act 2014 to the Nationality, Immigration and Asylum Act 2002, Parliament reduced from 14 to 3 the number of rights of appeal under the 2002 Act against decisions of the Secretary of State in the immigration field. Section 82 (right of appeal to the Tribunal) now reads as follows:

  • “(1) A person (“P”) may appeal to the Tribunal where –

    • (a) the Secretary of State has decided to refuse a protection claim made by P;

    • (b) the Secretary of State has decided to refuse a human rights claim made by P, or

    • (c) the Secretary of State has decided to revoke P's protection status.

  • (2) For the purposes of this Part –

    • (a) a ‘protection claim’ is a claim made by a person (“P”) that removal of P from the United Kingdom –

      • (i) would breach the United Kingdom's obligations under the Refugee Convention, or

      • (ii) would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

    • (b) P's protection claim is refused if the Secretary of State makes one or more of the following decisions –

      • (i) that removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;

      • (ii) that removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

    • (c) a person has ‘protection status’ if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;

    • (d) ‘humanitarian protection’ is to be construed in accordance with the immigration rules;

    • (e) ‘refugee’ has the same meaning as in the Refugee Convention.

  • (3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”

2

Section 113 (interpretation) of the 2002 Act contains the following definitions:-

“(1) In this part, unless a contrary intention appears –

‘asylum claim’ means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;

‘humanitarian protection’ has the meaning given in section 82(2);

‘human rights claim’ means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse himentry into the United Kingdom1 would be unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention);

‘the Human Rights Convention’ has the same meaning as ‘the Convention’ in the Human Rights Act 1998 and ‘Convention rights’ shall be construed in accordance with section 1 of that Act;

‘immigration rules’ means rules under section 1(4) of the Immigration Act 1971 (general immigration rules);

‘protection claim’ has the meaning given in section 82(2); 2

‘protection status’ has the meaning given in section 82(2); 3

‘the Refugee Convention’ means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol.”

3

Section 12 of the Immigration, Asylum and Nationality Act 2006 (asylum and human rights claims: definition) prospectively amended section 113(1) of the 2002 Act. If section 12 had been brought into force by a relevant Commencement Order, the definitions of “asylum claim” and “human rights claim” would have read as follows:-

“‘asylum claim’ –

  • (a) means a claim made by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention, but

  • (b) does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules”;

‘human rights claim’ –

  • (a) means a claim made by a person that to remove him from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights, but

  • (b) does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules.”

4

The amendments contained in section 12 of the 2006 Act have not been brought into force. Instead, the 2014 Act has amended the existing definition of “human rights claim” in section 113 by inserting the words “or to refuse him entry into the United Kingdom” (see footnote 1 to paragraph 2 above) and deleting the words “as being

incompatible with his Convention rights”. The 2014 Act also made a corresponding change to the prospective definition of “human rights claim” in the 2006 Act. 4
5

The following are the immigration rules that are relevant to these proceedings:

“ Procedure and rights of appeal

Fresh claims

353. When a human rights or protection claim5 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.

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.”

6

Although both Counsel had prepared for the hearing on 20 May by reference to the wording of paragraph 353, as it appeared at that time on the Home Office's website, that wording was incorrect. As a result of the approval by Parliament of the Statement of Changes in Immigration Rules (HC 1025), the word “asylum” in paragraph 353 was replaced with effect from 6 April 2015 by the word “protection”.

7

As can be seen from paragraphs 1 and 2 above, the purpose of the amendment is to reflect the introduction by the 2014 Act into the 2002 Act of the expression “protection claim”. The amended paragraph 353 was the version in force on 26 June 2015, when the Secretary of State issued her letter, declining to treat the applicant's further submissions as a fresh claim.

B. The issue
8

With that necessarily elaborate legislative exegesis, we can state the issue in these proceedings as follows: to what extent, if at all, can the Secretary of State utilise paragraph 353 of the Rules so as to preclude P from appealing to the First-tier...

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