R (on the Application of Robinson) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Hamblen,Lord Justice Flaux |
| Judgment Date | 04 May 2017 |
| Neutral Citation | [2017] EWCA Civ 316 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 2017 |
| Docket Number | Case No: C2/2016/1013 |
[2017] EWCA Civ 316
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
JR95692015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Hamblen
and
Lord Justice Flaux
Case No: C2/2016/1013
Ronan Toal & Catherine Robinson (instructed by Lawrence Lupin Solicitors) for the Appellant
David Blundell & Toby Fisher (instructed by Government Legal Department) for the Respondent
Hearing date: Tuesday 28th March 2017
Approved Judgment
This judgment is in seven parts, namely:
| Part 1 – Introduction | Paragraphs 2 – 13 |
| Part 2 – The facts | Paragraphs 14 – 24 |
| Part 3 – The judicial review proceedings | Paragraphs 25 – 28 |
| Part 4 – The appeal to the Court of Appeal | Paragraphs 29 – 32 |
| Part 5 – The Law | Paragraphs 33 – 45 |
| Part 6 – Decision | Paragraphs 46 – 59 |
| Part 7 – Executive Summary and Conclusion | Paragraphs 60 – 63 |
This is an appeal by a foreign criminal against a decision that his additional submissions were not "fresh claims" and that he had no right to a second appeal before the First-tier Tribunal.
The principal issue in this appeal is the correct interpretation of section 82 of the Nationality, Immigration and Asylum Act 2002 in the light of recent case law, in particular ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348, BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7; [2010] 1 AC 444 and ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926; [2011] QB 722.
In this judgment I shall refer to the UK Borders Act 2007 as "the 2007 Act". I shall refer to the European Convention on Human Rights as "ECHR". I shall refer to the Nationality, Immigration and Asylum Act 2002 as "the 2002 Act".
Part 5 of the 2002 Act until 19 th October 2014 provided:
"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 the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
( ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),
(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.
…
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
…
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
…
92 Appeal from within United Kingdom: general
(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.
…
(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
…
94 Appeal from within United Kingdom: unfounded human rights or asylum claim
(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
…
(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.
…
96 Earlier right of appeal
(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—
(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.
(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies—
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,
(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice.]
…
113 Interpretation
(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,
…
"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 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,"
Part 5 of the 2002 Act was amended with effect from 20 th October 2014 in a number of respects. Section 82(1) now provides:
"(1) A person ("P") may appeal to the Tribunal where –
i) the Secretary of State has decided to refuse a protection claim made by P,
ii) the Secretary of State has decided to refuse a human rights claim made by P, or
iii) the Secretary of State has decided to revoke P's protection status."
Section 84 of the 2002 Act now provides:
"(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds –
i) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention;
ii) that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
iii) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).
b) An appeal under section 82(1)((refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998."
There are consequential amendments to sections 92, 94 and 96 which I need not set out. The definition of "human rights claim" in section 113 is the same as before.
Paragraph 353 of the Immigration Rules formerly provided:
"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."
Since April 2015 paragraph 353 of the Immigration Rules has provided:
"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...
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