Upper Tribunal (Immigration and asylum chamber), 2016-12-13, IA/45899/2014
| Jurisdiction | UK Non-devolved |
| Date | 13 December 2016 |
| Published date | 05 February 2021 |
| Hearing Date | 05 October 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/45899/2014 |
Appeal Number: IA/45899/2014
IAC-FH-AR-V3
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45899/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 5 October 2016 |
On 13 December 2016 |
Before
UPPER TRIBUNAL JUDGE ALLEN
Between
TAMARA FYFFE-ROBINSON
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms M Knorr, instructed by Islington Law Centre
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant is a national of Jamaica. She appealed to a Judge of the First-tier Tribunal against the respondent’s decision of 10 November 2014 that further submissions she had made could have been made either before or during her previous appeal against a deportation order made against her on 6 November 2013 or that the application she had made did not meet the test set out at paragraph 353 of HC 395 or that they constituted a fresh human rights claim and as a consequence there was no appealable decision. This decision was endorsed by the First-tier Tribunal Judge, taking into account what had been said by the Supreme Court in BA (Nigeria) [2009] UKSC 7, and following the decision in Waqar [2015] UKUT 00169 (IAC). In effect her conclusion was that the decision was not one “to refuse a human rights claim” under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014.
2. The appellant sought and was granted permission to appeal against this decision. It was said that all grounds might be argued.
3. In her submissions Ms Knorr argued that in essence the issue before the Tribunal came down to whether the decision in Hussain [2016] UKUT 409 (IAC) or that in Sheidu [2016] UKUT 412 (IAC) was correct. The facts of this case were more on a par with those in Hussain. It was a question of whether the decision in BA (Nigeria) defining what a human rights claim was had not been determined by any decision binding on the Upper Tribunal. She sought an adjournment on the basis that permission to appeal the decision in Hussain to the Court of Appeal had been sought.
4. Mr Tufan opposed this application on the basis that there was no decision yet from the Court of Appeal and in the meantime there were the decisions upon which he relied which all went the other way.
5. Ms Knorr placed weight on what had been said in Sheidu and argued that although it was not ideal for cases to sit around for a long time it was such a fundamental matter that a decision was needed one way or another.
6. I ruled that it would not be appropriate to adjourn since it was entirely unclear how long it would take for a decision on the permission application in Hussain to come through, it was also unclear whether that decision would be one to grant permission, it was also unclear what the basis of the challenge was and it was equally unclear to what extent if at all the actual decision reached ultimately if there were one would address the specific issue before me. Submissions proceeded.
7. Ms Knorr argued that in order to understand the appellant’s position it was necessary to look at the statutory framework. At the time of BA (Nigeria) this was the old rights of appeal scheme. There had to be an immigration decision for there to be a right of appeal. Also section 113 of the 2002 Act defined what a human rights claim was. That definition was identical to the current definition. Section 92(4) defined whether the right of appeal was in-country or out of country. That was still the case.
8. In the new appeal provisions there was a definition of a human rights claim which is identical except that it added in “or refuse him entry to the United Kingdom” which ensured there would be an appeal where both removal and refusal of leave to enter breached a person’s human rights.
9. The question in BA (Nigeria) had been what a human rights claim meant in the context of part 5 of the 2002 Act. It concerned the decision as to whether there was a requirement that the fresh claim test was met for there to be a human rights claim. This was in the context of understanding the situation where the claim was not certified and the Secretary of State did not accept there had been a human rights claim. In essence the question was whether within section 92(4) the Secretary of State had to have accepted it was a human rights claim and that this met the fresh claims test. It was said for the purposes of part 5 and in turn interpreting the human rights claim as set out in section 113 it was irrelevant whether the Secretary of State considered whether there was a claim or not and this was because the statutory scheme as a whole provided for unfounded claims and it was necessary to use the mechanism in the statute if it was not intended that the person should have a claim. So the issue decided in BA (Nigeria) was the meaning of the phrase “human rights claim” and whether it was affected by the Immigration Rules and the Secretary of State’s decision on whether a fresh claim had been made or not. It had been held that no fresh claim test was imported into the statute as to whether or not there was a fresh claim. The test was binding if the changes in the Act did not change things. If that was right then the Upper Tribunal decisions, which were not binding, were wrong.
10. At paragraph 2 of BA (Nigeria) could be seen the same test as that which the Tribunal had to decide today, that being whether a human rights claim under section 82 was any human rights claim or only one if the Secretary of State decided it was a fresh claim. At paragraph 14 in BA (Nigeria) it was the Secretary of State’s view that that was what had been held in Hussain. It could be seen subsequently at paragraphs 15 and then 29, 32 and 33 that the ability to certify claims remained. The Secretary of State could still do that. It was pretty much a minor provision to paragraph 353 that the Secretary of State should certify if she thought it was a hopeless claim. It was argued that BA (Nigeria) established that before part 5 a human rights claim was to be interpreted without reference to paragraph 353 and the phrase “human rights claim” did not mean different things in different parts of the Act. The amendment proposed had not been put in force with regard to section 113 and the definition of “human rights claim”. The ratio of BA (Nigeria) was clear.
11. In Hussain the Upper Tribunal had regarded itself as bound by what was said by the Court of Appeal in ZA (Nigeria). That was a different context but concerned whether the Secretary of State had to make an immigration decision thus giving rise to a right of appeal as required under the old section 82. ZA (Nigeria) said that that was outside whether or not to make an immigration decision so it did not get within part 5 so the Secretary of State was free to apply paragraph 353. BA (Nigeria) was different in that it had decided what a human rights claim was for the purposes of part 5 and that was the issue before the Tribunal today. Therefore the Upper Tribunal in Hussain had misunderstood ZA (Nigeria) and the consequences of the findings in it as it was not concerned with the interpretation of the statute. The issue is that set out at paragraph 1 at page 34 in ZA (Nigeria). The question was not one that could occur any longer under the new section 82 as it did not require the Secretary of State to make immigration decisions giving rise to rights of appeal. The case concerned whether they had to issue a decision and then removal directions which was what a failed asylum seeker would get in order to have a right of appeal. The Immigration Rules told the Secretary of State when she had to do that and that was what had been found in ZA (Nigeria).
12. The point was that the Tribunal in this case was not in BA (Nigeria) territory but already in part 5 territory as it had been amended and the time when a person got a right of appeal was when a human rights claim had been refused. It was necessary to look at the Act to see if there was a right of appeal so therefore the Tribunal was in part 5 territory and not ZA (Nigeria) territory. So unless one changes the meaning of “human rights claim” and there were no good reasons to do so, BA (Nigeria) made it necessary to read in the words and you still had the provisions to deal with repeat claims or they would have to appeal from outside the United Kingdom and therefore the mischief was cured. There was an argument about anomalies as to why a person submitting a fresh claim got a right of appeal but that was what the Act said and there had always been anomalies, for example deportees automatically got a right of appeal because the Act said so, in contrast to human rights claims where there was no deportation order where there was no appeal unless the Secretary of State said that it was a fresh claim and this was a consequence of ZA (Nigeria). The law was clear.
13. Also BA (Nigeria) was relevant on how the scheme had changed, as the definition of a human rights claim defined the right of appeal. It was not longer a question of whether a person had an immigration decision but whether they had made a human...
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