R (on the Application of Akber) v Secretary of State for the Home Department (Paragraph 353; Tribunal's Role)
| Jurisdiction | UK Non-devolved |
| Judge | Smith,Lane J |
| Judgment Date | 27 September 2021 |
| Neutral Citation | [2021] UKUT 260 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 260 (IAC)
Lane J (President) and Smith UTJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Procedure and process — fresh application — paragraph 353 of the Immigration Rules — judicial review — Tribunal's role in fresh claim cases — rights of appeal — “decided” a “claim” — section 82 of the 2002 Act — Robinson[2019] UKSC 11 applied
The Claimant, a citizen of Pakistan, entered the United Kingdom as a student in 2006. He was subsequently granted leave to remain (“LTR”) as a Tier 1 General Migrant, which expired, following extension, in August 2016. The Claimant applied for indefinite leave to remain (“ILR”) based on ten years' lawful residence. The Secretary of State for the Home Department refused the application under paragraph 322(5) of the Immigration Rules HC 395 (as amended). She concluded that the Claimant had acted dishonestly by declaring a different income to Her Majesty's Revenue and Customs for tax purposes from the earnings declared in his Tier 1 applications. On appeal, the First-tier Tribunal (“FtT”) Judge did not accept that there was an earnings discrepancy, but he did find that the Claimant had acted dishonestly by not filing a tax return at all in 2010–11. The Claimant's explanation was that his accountants had been negligent. The FtT Judge concluded that the Secretary of State had been right to apply paragraph 322(5) and dismissed the Claimant's appeal. Shortly after the Upper Tribunal had refused permission to appeal against the FtT's decision, the Claimant made a further application for ILR based on long residence. For the first time, the Claimant said that no tax return was filed for 2010–11 because he was entitled to loss relief in relation to another business. The Secretary of State refused the application pursuant to paragraph 322(5) of the Immigration Rules. She also refused the Claimant LTR on human rights grounds, relying in large part on the FtT's decision. The Secretary of State decided that the Claimant's further submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules, because they had been considered by the FtT Judge and/or did not give rise to a realistic prospect of success on further appeal, with the effect that the Claimant could not challenge the decision by way of appeal.
On application for judicial review, the Claimant submitted first that, properly construed, the Secretary of State's decision did give rise to a right of appeal. He relied on the case of Sheidu (Further submissions; appealable decision)[2016] UKUT 412 (IAC), in which the Secretary of State had made a decision purportedly applying paragraph 353 but the Tribunal concluded that she had, on the face of the decision, refused protection and human rights claims and accordingly, there was a right of appeal. The Claimant also relied on R (on the application of Kamrul Islam) v Secretary of State for the Home Department (JR/8109/2018) in submitting that the guidance in Sheidu had survived the Supreme Court's judgment in Robinson v Secretary of State for the Home Department[2019] UKSC 11. The Secretary of State argued that the construction of paragraph 353 and its application to the appeals process, following the changes made by the Immigration Act 2014, was now put beyond doubt by Robinson. She also relied on the words “if rejected” in paragraph 353 as an indication that she was required to engage with the merits of further submissions and to reach conclusions on the substance prior to determining whether the further submissions amounted to a fresh claim. In his second ground, the Claimant submitted that the Secretary of State's decision breached his rights under Article 8 of the ECHR and sought permission to rely upon further evidence. The Claimant argued that the Tribunal's role when considering whether the decision breached his rights under Article 8 was one of fact-finder, whereas the Secretary of State's position was that the Tribunal's role was one of review.
Held, refusing the application:
(1) The importance of paragraph 353 of the Immigration Rules was as a “gate-keeping” function to shut out from the appeals system unmeritorious second or subsequent appeals. An appeal was generated under the current form of section 82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) whenever a protection or human rights “claim” was made and refused. The Secretary of State was not, however, obliged to treat repeat submissions as a “claim” leading to a “decision” generating a right of appeal in every case: Robinson applied. The words “if rejected” in paragraph 353 specifically contemplated that the Secretary of State must form a view on the merits of the further submissions, in the sense that she might decide the submissions were such as to warrant the grant of leave to enter or remain, and to recognise the person as a refugee or otherwise entitled to international protection. It was only if she did not do so that paragraph 353 required her to determine if the, ex hypothesis rejected submissions were a fresh claim, the refusal of which constituted a decision falling within section 82 of the 2002 Act. It was artificial to separate the underlying merits of what was put forward from the question whether something “significantly different” was being advanced for the purposes of paragraph 353. It was not the case, therefore, that the Secretary of State had “decided” a “claim” under section 82 of the 2002 Act in any case where she considered further submissions or a further application and concluded that the submissions or application did not merit the grant of leave (paras 37 – 52 and 56).
(2) The end-to-end process where paragraph 353 applied was as follows: i) the applicant made a human rights or protection claim; ii) that claim was refused by the Secretary of State giving rise to a right of appeal under section 82 of the 2002 Act; iii) the applicant's appeal was unsuccessful, or the applicant did not appeal or withdrew his appeal, or the refusal was certified under section 94 of the 2002 Act; iv) the applicant made second or subsequent submissions by way of written submissions or application; v) the Secretary of State considered whether to accept or reject the further submissions on their merits; vi) if the further submissions were accepted on their merits, the Secretary of State granted leave/recognised the applicant's status; vii) if the further submissions were rejected, the Secretary of State went on to consider whether they nonetheless amounted to a fresh protection or human rights claim; viii) if the Secretary of State determined that the further submissions did not amount to a fresh claim, she rejected them as such. No refusal of a human rights or protection claim arose, within the meaning of section 82(1)(a) or (b) of the 2002 Act. If, however, she determined that they did amount to a fresh claim, then a “decision” had been made to refuse a “claim” for the purposes of section 82(1)(a) or (b) of the 2002 Act and a right of appeal arose against that decision (para 53).
(3) The guidance given in Sheidu turned on questions of interpretation of the decision letter there under challenge. Guidance on the application of paragraph 353 of the Immigration Rules was now authoritatively given by the Supreme Court in Robinson. Islam was not a reported case and did not offer guidance for other cases. Whether a decision of the Secretary of State was a decision to refuse to treat submissions as a fresh claim, or the refusal of what was accepted to be a fresh claim, was a matter of substance and not form. The nature of the decision did not depend on where in the decision letter paragraph 353 was raised. It was necessary to look at a paragraph 353 decision under challenge as a whole. It must be interpreted objectively, considered fairly in the round and in substance. A decision letter might contain a number of different elements, but it was the refusal of the human rights or protection element of the further submissions which, if recognised as a “claim”, generated the right of appeal. Whilst in the instant case the application for ILR formed part of the human rights case because long residence was part of the Claimant's private life, that did not alter the fact that any appeal would be against the refusal of the human rights claim itself. When searching for the intention of the decision letter, one had to look at it holistically. The Secretary of State was not the sole or ultimate arbiter of how her decisions were to be interpreted. In some, albeit extreme, cases such as Sheidu, the Tribunal might conclude, in the context of a judicial review challenge, that what the Secretary of State actually did was not what she intended to do. Such cases were nevertheless likely to be rare (paras 58 – 62, 65 – 68 and 78).
(4) In the instant case, the Secretary of State concluded that the Claimant was not entitled to ILR within the Immigration Rules because he was considered to have exercised deception, and nothing in the further application led to a different conclusion. The Tribunal did not need to consider the substance of that conclusion because the Claimant was refused permission to challenge the substance of the decision on rationality grounds. It was precisely the kind of decision which Parliament had decided should no longer be subject to a right of appeal. The second part of the Secretary of State's consideration related to the human rights case under Article 8. It was the Claimant's case that, by the time paragraph 353 was raised, the Secretary of State had already made a “decision” amounting to the refusal of a “human rights claim” and therefore generating a right of appeal, because the application for ILR was an implied human rights claim. It made sense, however, for the Secretary of State to refer to paragraph 353 at the point where she had to consider...
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Upper Tribunal (Immigration and asylum chamber), 2021-09-27, [2021] UKUT 260 (IAC) (R (on the application of Akber) v Secretary of State for the Home Department (paragraph 353, Tribunal’s role))
...AND ASYLUM CHAMBER) R (on the application of Akber) v Secretary of State for the Home Department (paragraph 353; Tribunal’s role) [2021] UKUT 00260 (IAC) Field House, Breams Buildings London, EC4A 1WR 27 September 2021 Before: THE HON. MR JUSTICE LANE, PRESIDENT UPPER TRIBUNAL JUDGE SMITH _......