Sheidu (Further Submissions; Appealable Decision)
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Dawson,Dawson UTJ,Ockelton |
| Judgment Date | 07 September 2016 |
| Neutral Citation | [2016] UKUT 412 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 07 September 2016 |
[2016] UKUT 412 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Dawson
For the Appellant: Mr P Deller, Senior Home Office Presenting Officer.
For the Respondent: Ms A Radford, instructed by Wilson Solicitors.
Sheidu (Further submissions; appealable decision)
If the SSHD makes a decision that is one of those specified in s 82(1), it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim.
When is a decision not to treat submissions as a fresh claim not (or not merely) a decision not to treat submissions as a fresh claim? The question is one of many difficult issues arising from the amendment of the Nationality, Immigration and Asylum Act 2002 by the Immigration Act 2014, the implementation of those amendments, and the context in which they occur.
By s. 82(1)(a), as amended by the 2014 Act, and as in force essentially for all purposes from 6 April 2015, there is a right of appeal where the Secretary of State has “decided to refuse” a “protection claim” or a “human rights claim”. Sub-section (2) provides the definitions relevant to the first:
“(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.”
The definition of “human rights claim” is in s. 113(1):
“‘human rights claim’ means a claim made by a person to the Secretary of State … that to remove the person from or require him to leave the United Kingdom would be unlawful… as being incompatible with his Convention rights.”
Alongside those provisions, although without specific reference in either direction, are paragraphs 353–353A of the Immigration Rules, which, together with paragraph 353B, are found between paragraphs 361 and A362 of the Statement of Changes in Immigration Rules, HC 395 (as amended).
“ Procedure and rights of appeal
Fresh claims
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 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.”
In the appeals regime from 1993 until the amendments introduced by the 2014 Act, there was no specific right of appeal against the refusal of an asylum or human rights claim. The right of appeal was against the consequent decision, for example to refuse the individual leave, or to remove him. In a line of cases beginning with R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768, it was established that there was no statutory right of appeal against the Secretary of State's decision, under paragraph 353 and its predecessors, not to treat submissions as a “fresh claim”, and therefore to make no new appealable immigration decision. Following the amendments introduced by the 2014 Act, a number of decisions, including R (Waqar) v SSHD [2015] UKUT 00169 (permission to appeal to Court of Appeal refused by Beatson LJ on 17 November 2015), R (Robinson) v SSHD [2016] UKUT 00133, R (MG) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 00283 and R (Amin Sharif Hussein) v First-tier Tribunal and SSHD [2016] UKUT 00409 (IAC) have considered whether there is still a clear dichotomy between a decision carrying a right of appeal and a decision merely not to treat submissions as a “fresh claim”.
On the one hand, it appears clear that the procedure under paragraph 353 was intended to continue, despite the change to the appeals regime. If it were otherwise, the removal of any successful claimant could readily be hindered by a succession of repeat claims: even if the resulting decisions were certified, the administrative tasks imposed by a statutory invitation to resist removal in this way would no doubt be insuperable. On the other hand, as is, we think, clear from the decision of the Supreme Court in R (BA (Nigeria)) v SSHD and another [2009] UKSC 7, if the Secretary of State makes a decision which is an appealable decision, paragraph 353 has no further part to play. In that case, the claimant was subject to a deportation order; his further submissions therefore necessarily amounted to a request for revocation of the deportation order, the refusal of which, however expressed, carried a right of appeal under the (then) appeals regime. The decision was primarily concerned with where the right of appeal could be exercised. BA (Nigeria) was examined by the Court of Appeal in R (ZA (Nigeria)) v SSHD [2010] EWCA Civ 926, where Lord Neuberger MR, having examined the competing arguments before him, reasserted the proposition, derived from ZT (Kosovo) v SSHD [2009] UKHL 6, that paragraph 353 has no part to play where there has been an appealable immigration decision.
In this context, this Tribunal has, in the cases to which we have referred above, had to determine whether the Onibiyo regime continues to apply in any meaningful sense when, after an unsuccessful asylum claim, an individual again submits to the Secretary of State that his removal would breach the Refugee Convention. In Waqar the Tribunal concluded that, in the present context, further submissions by an unsuccessful applicant would only be a “claim” within the meaning of s. 82(2)(a) if they were a “fresh claim” within the meaning of paragraph 353. As we have said, permission to appeal was...
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