Upper Tribunal (Immigration and asylum chamber), 2016-02-16, [2016] UKUT 133 (IAC) (R (on the application of Robinson) v Secretary of State for the Home Department (paragraph 353 – Waqar applied) (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Southern |
| Status | Reported |
| Date | 16 February 2016 |
| Published date | 11 March 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 16 February 2016 |
| Subject Matter | paragraph 353 – Waqar applied) (IJR |
| Appeal Number | [2016] UKUT 133 (IAC) |
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
R (on the application of Robinson) v Secretary of State for the Home Department (paragraph 353 – Waqar applied) IJR [2016] UKUT 00133(IAC)
Field House
London
16 February 2016
The QUEEN
(ON The application OF)
Jamar Christoff robinson
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
First Respondent
and
THE FIRST-TIER TRIBUNAL
Second Respondent
Before
UPPER TRIBUNAL JUDGE southern
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Ms C Robinson, instructed by Lawrence Lupin Solicitors appeared on behalf of the Applicant.
Mr T Fisher, instructed by the Government Legal Department appeared on behalf of the first Respondent. There was no representative on behalf of the second Respondent.
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Notwithstanding the amendments brought about by the Immigration Act 2014 to the types of decisions appealable under s82 of the Nationality, Immigration and Asylum Act 2002, para 353 of HC395 continues to perform a gateway function in respect of access to a right of appeal. Arguments to the contrary, founded upon dicta in BA (Nigeria) v SSHD [2009] UKSC 7, are misconceived because, as explained in ZA (Nigeria) v SSHD [2010] EWCA Civ 926, in BA (Nigeria) immigration decisions (of a type that no longer give rise to a right of appeal) had been made so that there was, on that account, a right of appeal.
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The argument now advanced, which was not considered by the Upper Tribunal in R (Waqar) v SSHD (statutory appeals/paragraph 353) IJR [2015] 00169 (IAC), founded upon the amendment to the definition of “a human rights claim” found at s113 of the 2002 Act, provided for by the Immigration, Asylum and Nationality Act 2006 but not yet implemented, is no basis for doubting that Waqar is correctly decided.
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Where the respondent rejects further submissions and goes on to conclude that they do not amount to a fresh claim for the purposes of para 353 of HC 395, it is not implicit that the respondent has made a decision to refuse a human rights claim. Properly understood, the respondent has done precisely the opposite and has declined to make a decision at all. To the extent that the respondent has embarked upon an examination of the merits of the further submissions, she is not making a decision but doing no more than equipping herself to follow the para 353 process.
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ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
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UPPER TRIBUNAL JUDGE southern:
1. The applicant has been granted permission to bring a judicial review against decisions of the first respondent made on 23 June 2015 and 31 July 2015 to refuse to treat further submissions made by the applicant’s solicitors on 13 May 2015 and by the applicant himself on 28 July 2015 as amounting to fresh claims such as to give rise to a fresh right of appeal and also against the decision of the second respondent made on 7 August 2015 to refuse to accept that the applicant had a right of appeal against a fresh refusal of his human rights claim.
2. The applicant, who is a citizen of Jamaica born on 14 May 1991, arrived in the United Kingdom in October 1998, then aged just 7 years old. He was admitted as a visitor and having overstayed that leave has remained unlawfully in the United Kingdom ever since. He is now 24 years old. Unfortunately, he has committed a number of serious criminal offences in respect of which, as the respondent has pointed out, he has been sentenced to custodial sentences of a combined total of about seven years.
3. In April 2011 he was sentenced to a term of eighteen months for two counts of robbery and, in August 2011, 56 months for theft from the person and two further counts of robbery. On that occasion he was also made subject to an antisocial behaviour order for a period of five years. While serving that sentence he received a consecutive term of twelve months’ custody for violent disorder, an offence committed whilst detained.
4. The applicant’s appeal against the deportation order that was signed in July 2013 was dismissed following a hearing on 17 October 2014 by a decision of the First-tier Tribunal promulgated on 19 November 2015. In that appeal the applicant relied upon a human rights claim founded upon his right to respect for private life due to his length of residence in the United Kingdom, it being accepted at that time that there was no protected family life in play.
5. The decision letter of 23 June 2015 is a response to a letter dated 13 May 2015 sent by the applicant’s solicitors. In that letter they ask the respondent to grant the applicant temporary admission so that he could support his partner who was imminently due to give birth. This was a short letter making no other request but the respondent took it to be implicit from what was said that the applicant was now advancing a claim that he had established family life with his partner, Ms Tyrena Godson-Charles who is said to be pregnant with his child. The response from the Secretary of State dated 23 June 2015 was a detailed one from which it can be seen that the respondent recognised that the applicant was in fact asserting that he now had a claim to advance on that basis. However, for the reasons set out in that letter, the respondent saw no basis to revisit the deportation decision but did go on to carry out a full assessment of whether what had been said amounted to a fresh claim for the purposes of paragraph 353 of HC 395 but concluded it did not, saying at paragraph 55 of that letter “as your client’s submissions do not create a realistic prospect of success before an Immigration Judge they do not amount to a fresh claim”.
6. Shortly afterwards the applicant himself submitted further submissions on 28 July 2015, this time informing the respondent that his son had now been born. Once again the first respondent refused to accept that to amount to a fresh claim. We do not have a copy of that letter but it can be seen from the response it generated from the respondent that the same documents as accompanied the letter previously sent by his solicitors evidencing the arrival of the child were included and so discussed.
7. Although these two decisions were drawn up as refusals to accept that the further submissions amounted to a fresh claim for the purposes of paragraph 353, the applicant categorises these decisions also as decisions to refuse to revoke the deportation order that had been made in respect of him. In both decisions the respondent said that she saw no grounds on which to revoke the deportation order. I shall say something more about that a little later but it might be observed that, in the context of the revised framework of Section 82 of the 2002 Act, whether or not there had been a decision to refuse to revoke a deportation order did not have the same significance that it previously did have.
8. These proceedings were first brought in challenge to the two decisions of the first respondent but the applicant was subsequently granted leave to expand the scope of his claim to include a challenge to the refusal of the second respondent to accept his appeal. It is, however, today common ground and agreed between the parties that it is not necessary to address the claim that relates to both the first and second respondent separately because the outcome will be the same for both whether the claim succeeds or falls.
9. There are in effect two grounds upon which the applicant now relies. The first of those has been neatly summarised by Mr Fisher in his skeleton argument and I do not see that Ms Robinson expresses any disagreement with how he puts it. In the statutory scheme, as amended by the Immigration Act 2014, does paragraph 353 of the Immigration Rules continue to perform a gateway function to accessing the appeal rights now provided by Section 82 of the Nationality, Immigration and Asylum Act 2002. Put another way, do further human rights submissions have to meet the threshold set out in paragraph 353 in order to amount to a human rights claim for the purpose of Section 82 or will any further human rights submissions be sufficient to amount to a human rights claim for the purpose of Section 82 and therefore generate a right of appeal.
10. The second ground is that on the basis of the...
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