Upper Tribunal (Immigration and asylum chamber), 2015-03-25, [2015] UKUT 169 (IAC) (R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Coker, Upper Tribunal Judge Kebede |
| Status | Reported |
| Date | 25 March 2015 |
| Published date | 20 April 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 10 February 2015 |
| Subject Matter | IJR |
| Appeal Number | [2015] UKUT 169 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 00169 (IAC)
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Heard at Field House |
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On 10th February 2015 |
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Before
UPPER TRIBUNAL JUDGE COKER
UPPER TRIBUNAL JUDGE KEBEDE
Between
THE QUEEN ON THE APPLICATION OF
HIKMAT WAQAR
Applicant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Ms S Akinbolu, counsel, for the applicant (instructed by M & K Solicitors)
Mr A Byass and Mr D Blundell, counsel, for the respondent (instructed by Treasury Solicitor)
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The current statutory appeal regime requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal.
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Where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim. Paragraph 353 of the Immigration Rules provides the mechanism to determine whether they amount to a claim the refusal of which enables a right of appeal.
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The Immigration Act 2014 (Transitional and Saving Provisions) Order 2014/2928 brings those whose deportation decision (which includes a decision to refuse to revoke a deportation order) was made after 10th November 2014 into the statutory scheme in the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014, irrespective of when they were convicted of a criminal offence.
JUDGMENT
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The applicant is a foreign national offender who entered the UK in 2007 at the age of 13. In 2008 he was convicted of five counts of rape involving some 30 to 40 separate incidents in which he repeatedly raped a 7 year old boy. He was sentenced to four years detention in a Young Offenders Institution and a two year extended period on licence.
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A deportation order was signed on 25th June 2014 subsequent to an unsuccessful appeal against a decision to make a deportation order. The applicant then made further submissions arguing that his deportation would result in a breach of his protected right to respect for family and private life. He relied, inter alia, upon the birth of two children since the date of the determination of the deportation appeal.
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The submissions were treated as an application to revoke the deportation order. That application was refused for reasons set out in a decision dated 14th November 2014, supplemented by a further decision on 28th November 2014. In those letters the respondent said that no right of appeal arose because the applicant’s submissions did not amount to a fresh claim.
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On 2nd December 2014 the respondent set directions for removal on 9th December 2014. The applicant commenced the instant proceedings on 5th December 2014 and also sought a stay on his removal. On 9th December 2014 UTJ Kebede ordered a stay on removal pending determination of the application for permission to bring a judicial review of the decisions of 14th and 28th November 2014, or until further order. On 22nd December 2014 UTJ Coker refused permission on the grounds asserting that the decision to refuse to revoke the deportation order was an appealable immigration decision because the Nationality Immigration and Asylum Act 2002 applied unamended by the Immigration Act 2014 (“2014 Act”); she granted permission on the limited ground that it was arguable that the Immigration Act 2014 as it amends the Nationality, Immigration and Asylum Act 2002 (“2002 Act”) may mean that if a human rights claim is raised it must, unless certified, attract a right of appeal and that paragraph 353 of the Immigration Rules does not operate as a gatekeeper preventing an appeal right. A copy of that decision is attached as Annex A.
Summary of the issue between the parties
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The applicant’s contention is that paragraph 353 of the Immigration Rules is now subsumed within the statutory provisions. The right of appeal that is now defined by s82 2002 Act enables all refused human rights claims to have an appeal, such appeal rights only being limited if the claim is certified under s94 or s96. There is, it is contended no requirement for a “categorisation” step because the statutory framework now provides all the necessary safeguards to prevent repetitious or unmeritorious claims being pursued through the appellate system either within the UK, outside the UK or at all. The applicant contends that the amendment to s82 results in the respondent not having to make a separate immigration decision but she is limited to consideration of whether the removal of the applicant would breach his rights under the ECHR; having made such a claim then statute determines that he is thus entitled to a right of appeal and the respondent retains control over the location from which the applicant may exercise such right of appeal as he may have. The applicant relies upon R (BA (Nigeria)) v SSHD [2010] 1 AC 444 and submits that ZT (Kosovo) v SSHD [2009] 1 W.L.R. 348 and R (ZA (Nigeria)) v SSHD [2011] QB 722 were predicated upon the “old” construction whereby a human rights claim did not give rise to a right of appeal per se but rather the respondent was required to consider whether or not to make an immigration decision which would then attract a right of appeal – limited by s94 or s96 if considered appropriate.
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The respondent contends that the 2014 Act has not altered the statutory appealable decision regime but, albeit radically, has significantly reduced the adverse decisions that have a right of appeal. Although the certification process (ss94 and 96) remains available to the SSHD that is only where there has been a claim that has been refused. The paragraph 353 process remains in force to enable the categorisation of submissions and it is only if the submissions are categorised as a claim that has been refused, is there an appeal. The SSHD disputes that the decisions of ZT Kosovo and ZA Nigeria, determined under legislation that has since been amended, support the contention that paragraph 353 is now no longer in force for cases such as the instant case. She contends that the history and purpose of paragraph 353 requires consideration in determining the various appeal rights that have been provided for over the years.
Legislative background
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The Immigration Act 2014 amended Part 5 of the Nationality Immigration and Asylum Act 2002. The whole of the 2014 Act has not been brought into force. We have described the legislation and Rules in force prior to the commencement of the relevant sections of the 2014 Act as “old” and those provisions as amended by the 2014 Act as “new” and set them out in columns in Appendix B.
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In R v SSHD, ex parte Onibayo [1996] QB 768, a decision made in relation to an appeal under the now repealed Asylum and Immigration Appeals Act 1993 (“1993 Act”), the SSHD contended that a person could only make one claim for asylum. This was rejected by the Court of Appeal, which held that a new or “fresh” claim for asylum could be made. This led to the introduction of paragraph 346 into the Immigration Rules. This was examined in by the Court of Appeal in Cakabay v SSHD (Cakabay No 2) [1988] Imm AR 176, [1998] EWCA Civ 1116 in which Schiemann LJ held:
THE NEED FOR CATEGORISATION
Before turning to consider these two questions [how a categorisation question is to be challenged] it is helpful to indicate why the need for categorisation arises. What follows is not substantially in dispute between the parties.
The background to the problem is the desire of the United Kingdom to abide by its obligations under the Geneva Convention.
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It is manifest that if a state acts in breach of its obligation the consequences to the individual can be disastrous. Parliament has therefore provided in s. 6 of the 1993 Act that
"During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."
Moreover Parliament has provided that the claimant may not be removed from or required to leave the United Kingdom whilst he is pursuing the appellate process.
The Statute makes no express provision as to what is to be done in the case of repeated claims for asylum by the same person. The second claim may be identical to the first ("a repetitious claim") or may be different ("a fresh claim"). It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim whereas a repetitious claim does not.
In the case of a repetitious claim no more is required to be done: the first decision has ensured that the United Kingdom has complied with its obligations under the Convention. S.6 of the...
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