ZA (Nigeria) & Anor, R (on the application of) v Secretary of State for the Home Department

These appeals are brought on behalf of ZA and SM from the decision of the Administrative Court (the President of the Queen’s Bench Division and Foskett J). The appeals raise the issue whether, as the Administrative Court decided, the Secretary of State is entitled to refrain from making an appealable immigration decision in response to an asylum claim or a human rights claim which he reasonably concludes is merely a repetition of an earlier claim whose rejection has been unsuccessfully challenged in a concluded appeal.

I can take the facts from the judgment of the Administrative Court – [2010] EWHC 718 (Admin), paragraphs 2-5:

ZA is a Nigerian national, who arrived illegally in the United Kingdom in April 2002. He sought asylum on 28^th May 2003 after he had been arrested for working illegally. The Secretary of State rejected his claim on 5^th June 2003, on which date the Secretary of State gave him written notice in compliance with the Immigration (Notices) Regulations 2003 of a decision to remove him as an illegal entrant or other immigration offender. On 13^th August 2003, his appeal was dismissed by an adjudicator. At some stage he absconded and he was recorded as an absconder on 22^nd June 2005.

On 20^th September 2008, ZA was arrested for suspected immigration offences and possession of drugs, although no charges were ultimately brought against him. On 23^rd September 2008, his representatives made further submissions based on Article 8 of the European Convention on Human Rights and claimed that he fell within the Secretary of State's Legacy Programme. The Secretary of State rejected these further submissions in a letter dated 24^th September 2009. Removal directions were set for 17^th October 2009, but these were cancelled when he began judicial review proceedings on 14^th October 2009. On 11^th December 2009, Dobbs J refused permission finding that the claim was hopeless. Further removal directions were set for 21^st December 2009, but ZA renewed his application for permission orally and an injunction was granted preventing his removal. We grant his renewed application for permission to bring these proceedings.

Each claimant contends that [he has] a right of appeal against the Secretary of State's rejection of their Article 8 claims. The Secretary of State contends that he has made no immigration decision which attracts a right of appeal and that he is not obliged to make one. He relies on the original decisions to remove the claimants.”

Immigration and asylum have been the subject of a large and increasing, almost bewildering, volume of legislation (both statutory and regulatory), and of litigation (both in tribunals and courts) over the past forty years. One of the problems that has had to be addressed is that of renewed claims, that is claims for asylum, leave to remain and the like, made by people who have already had their claims rejected. On the one hand, it is only fair that the opportunity to make such renewed claims should be available to those who have good reasons for making them – normally because of a significant and unforeseen change in circumstances since a previous claim was made and rejected. On the other hand, it must be right to shut out renewed purported or actual claims which either raise no new grounds or are hopeless.

In these two cases, it is the respondent Secretary of State’s contention that the purported renewed claims by SM on 24 July 2008 and on 26 May 2009 were in reality mere repetitions of the claim which ultimately failed on appeal on 28 November 2007, and that she was therefore entitled to reject them by virtue of rule 353 of the Immigration Rules (“rule 353”), without actually making a decision on them. The Secretary of State’s case as against ZA is that, on the same ground, she was entitled to reject, and did not need to decide, the purported renewed claim of 23 September 2008 as it relied on substantially the same facts as the claim which ultimately failed on 13 August 2003. If that is right, the only way of challenging those rejections would be by way of application for judicial review.

The contention of the appellants, SM and ZA, on the other hand, is that, irrespective of the weakness or repetitious nature of the renewed purported claims, the Secretary of State had to make a decision on them, and that her duties with regard to them were governed by the provisions of Part 5 of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) whose effect was either impliedly to repeal rule 353 or to render it of no further application.

These rival submissions obviously require one carefully to consider the terms of rule 353 and of certain of the sections in part 5 of the 2002 Act. However, they also require consideration of the decision of the House of Lords in ZT (Kosovo) v Home Secretary [2009] UKHL 6 ; [2009] 1 WLR 348 , and of the Supreme Court in BA (Nigeria) v Home Secretary [2009] UKSC 7 ; [2010] 1 AC 44 4, this latter decision providing the main plank for the appellants’ argument.

In R v Secretary of State ex p Onibiyo [1996] QB 768 , in relation to an appeal under the now repealed Asylum and Immigration Appeals Act 1993, the Secretary of State contended that only one claim for asylum could be made by a person. The Court of Appeal rejected that contention, holding that a new or “fresh” claim could be mounted. Sir Thomas Bingham MR, giving the only reasoned judgment of this court, said this at [1996] QB 768 , 783B:

This proposition was (in September 1996) subsequently enshrined in the Immigration Rules (“the Rules”), initially in rule 346, but now, since October 2004, in rule 353, which is in these terms:

The Rules are provided for in section 1(4) of the Immigration Act 1971, which refers to them as “the rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode”. Section 3(2) of that Act requires the Secretary of State to “lay before Parliament” the proposed rules “or any [proposed] changes in the rules”, and, unless what is so laid before Parliament is disapproved within 42 days, the rules or changes so proposed should be implemented by the Secretary of State.

The 2002 Act effectively repealed and replaced the 1993 Act. Despite its relatively recent origin, the 2002 Act has been amended by a number of subsequent statutes, most notably the Asylum and Immigration (Treatment of Claimants etc) Act 2004, the Nationality Immigration and Asylum Act 2006, and the UK Borders Act 2007, and by many Regulations. Both parties addressed us on the basis of the legislation in its current form, and, with one exception, I shall adopt the same approach. All references to sections hereafter are, save where the contrary is stated, to sections of Part 5 of the 2002 Act, which is entitled “Immigration and Asylum Appeals”.

Section 82 is headed “Right of appeal: general”, and, so far as relevant, it is in these terms:

Section 84 sets out the possible grounds of appeal, and the following sections are concerned with other aspects of appeals. Section 92 is concerned with “Appeal[s] from within the United Kingdom: general”, and it provides, so far as relevant, as follows:

Section 94 is entitled “Appeal from within United Kingdom: unfounded human rights or asylum claim” and it is in these terms:

Section 95 is concerned with “Appeal[s] from outside United Kingdom: removal”. Finally, I should refer to section 96, which is headed “Earlier right of appeal”. “subsection (1)” is in these terms:

Rule 353 is concerned with a case where a person has already made “a human rights or an asylum claim” which has been determined, and in respect of which he makes “further submissions”; in such a case, the question for the Secretary of State is whether those submissions amount to “a fresh claim”: if it does not, she can refuse to treat it as a claim at all, so there is no decision which can be appealed under section 82. Section 94(1) and (2) are concerned with a case where a person makes “an asylum claim or a human rights claim (or both)”, and the question for the Secretary of State is whether the claim is “clearly unfounded”: if it is, then she will dismiss it, and can shut out an appeal under section 82 by so certifying.

It is rightly common ground that there is no difference between “a human rights or an asylum claim” and “an asylum claim or a human rights claim (or both)”, and that what are described in rule 353 as “further submissions” could, subject to the question of whether they raise a new point, amount to a fresh “claim” capable of falling within the ambit of the sections in Part 5 of the 2002 Act.

The Secretary of State’s case is that the two procedures under rule 353 and section 94(1) and (2) can and do co-exist perfectly satisfactorily; the appellants’ case is that they do not happily co-exist, and that, when Part 5 of the 2002 Act came into force, rule 353 became of no effect in practice, and therefore could not be relied on by the Secretary of State.

At the time when the 2002 Act was enacted, there was no attempt to repeal or amend rule 353, and it has stood unamended to this day. Further, in recent legislation (albeit not so far brought into force), Parliament appears to have assumed that rule 353 still has a part to play. Section 53 of the Borders Citizenship and Immigration Act 2009 will amend section 31A of the Senior Courts Act 1981 to enable transfer from the High Court to the Upper Tribunal of judicial review applications where “the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or human rights claim … wholly or partly on the basis that they are not significantly different from material that has previously been considered …”.

A rule, indeed even primary legislation, can be impliedly repealed or rendered nugatory by later legislation, and the neutering of a rule by subsequent legislation can be overlooked by a Government Department, even when promoting subsequent legislation. However, it seems to me that, where the rule remains unamended, then, at least where the rule and the subsequent legislation are in pari materia and are promoted or promulgated by the same Government Department, there must be a presumption that the rule was intended to survive and have effect. While this is not, I accept, a particularly strong presumption, it is strengthened in a case such as this, where, in a more recent statute, Parliament has plainly legislated on the basis that the rule or regulation is in force; indeed section 53 of the 2009 Act would be positively meaningless if rule 353 has no further function.

Having said that, the two important questions on these appeals, as it seems to me, are, first, whether, in the absence of authority, on a fair reading of the relevant provisions of Part 5 of the 2002 Act, rule 353 has no function, at least in cases such as those of SM and ZA. The second question is whether the conclusion one would otherwise reach on the first question is undermined, or indeed supported, by binding authority. If the effect of the two relevant authorities was clear, it might be inappropriate to consider the first question, but as there is a sharp difference of view as to the effect of the authorities, it is better to take the questions in the order which I have indicated.

The first argument raised by the appellants SM and ZA is that rule 353 can no longer apply, because a decision to reject a claim under the rule would be a decision falling within section 82, and could therefore be appealed. That will not do, in my opinion. If rule 353 can be relied on, then, on receipt of a purported renewed claim (which I shall refer to hereafter as “further submissions”), the Secretary of State can decide that it is not a “fresh claim”, and then decline to make a decision on whether or not to refuse leave to enter etc; in that event, there would be no decision which could give rise to a right of appeal under section 82, as explained in Cakabay v Secretary of State for the Home Department (Nos 2 and 3) [1999] Imm AR 176, 180-181, per Schiemann LJ. A decision under rule 353 is not a decision to refuse the relief which the further submissions seek: it is a decision that the further submissions do not amount to a fresh claim – i.e. that it is not a claim at all. The appellants’ further argument that it is inherent in section 82 that the Secretary of State must decide whether to grant or refuse the relief sought in such further submissions involves circular reasoning: there can be no such duty if rule 353 applies.

The principal argument advanced in support of the appellants’ case is that rule 353 simply has no further part to play as a result of the provisions of sections 94 and 96. In effect, the argument is that all the claims, including all further submissions, whether or not they would amount to fresh claims, which would have been covered by rule 353 are now capable of being covered by sections 94 and 96, so that to invoke rule 353 would, in effect, involve subverting the will of Parliament, because a claim, or purported claim, falling within section 94 or 96 should be disposed of as the statute provides, not as a rule provides.

I accept that it is obviously right to consider whether sections 94 and 96 render rule 353 valueless: that, indeed, is the central point on the first issue. However, I consider that SM and ZA put their case on the point too high. First, it overlooks the fact that Parliament has, albeit in a negative sense, approved subsequent amendments to the Rules, which do not include the deletion of rule 353. Further, it is rather paradoxical for the appellants to invoke the will of Parliament when the most recent relevant statute clearly proceeds on the basis that rule 353 is in force and has practical effect: on the appellants’ case, when Parliament enacted section 53 of the 2009 Act, it was simply beating the air.

Perhaps more importantly, the issue between the parties should not be determined simply by seeing whether sections 94 and 96 can be interpreted so as to cover every application and purported application falling within rule 353. It is equally valid to consider whether they can be construed consistently with rule 353 continuing to have an independent effect.

Section 94(2) differs from rule 353 in that it is concerned with hopeless, or “clearly unfounded” claims, whether original or renewed, whereas rule 353 covers only purported renewed claims, i.e. further submissions, which merely repeat previous rejected claims by the same claimant. So section 94(2), unlike rule 353, can apply not only to a renewed claim (or purported renewed claim) but also to the original claim made by a particular claimant. That, no doubt, is the reason why section 94(2) envisages a claim to which it applies being treated as a valid, albeit hopeless, claim, which has to be considered on its merits: hence its machinery involves the Secretary of State certifying that it is clearly unfounded, so as to prevent an appeal. On the other hand, as rule 353 is concerned with purported claims which repeat earlier, rejected, claims, it envisages that such purported claims are not to be considered or treated as claims at all.

Section 94(2) therefore does not relieve the Secretary of State from making a decision to refuse leave to enter or entry clearance in respect of a claim which she considers to be “clearly unfounded”: she must consider it on its merits, and, having no doubt refused it, she is then entitled, by virtue of section 94(2), to prevent the claimant raising an appeal under section 82 by issuing a certificate. If she could rely on rule 353, however, and she considered that the further submissions she has received raise no issues other than those already raised by an earlier, rejected, claim, she would neither have to consider its merits nor formally refuse it: she could merely reject the submissions. Thus, rule 353 can be operated as a sort of gatekeeper by the Secretary of State to prevent further submissions amounting to, or being treated as, a claim, thereby not getting into Part 5 territory at all.

If further submissions on analysis merely repeat a claim which has already been made, it is a perfectly normal use of language to say that they do not really amount to a new claim, but should be treated as being no more than an attempt to revive a previous unsuccessful claim. Nonetheless, I accept that the description of a “clearly unfounded” claim in section 94(2) is capable, as a matter of language, of being applied to such further submissions which, on analysis, raise no new points over and above a previous, rejected, claim. However, given that the 2002 Act was passed at a time when rule 353 existed, I would incline to the view that it was not intended to apply to such further submissions which do not amount to a fresh claim.

Further, there appears to me to be some force in the contention that section 94(2) is unlikely to have been directed to further submissions which do not raise new issues over an earlier claim, when a claim which relies on evidence which should have been produced to support an earlier claim is expressly covered in the 2002 Act in section 96(1) (and claims which included, but extended further than, previous unsuccessful claims, were expressly covered in section 96(3)). However, I also accept that there is force in the point that Part 5 of the 2002 Act was intended to be a complete code.

As for section 96 itself, subsection (1) is clearly concerned with different territory from rule 353: the section is directed to new points which could and should have been raised in the claimant’s original, rejected, claim – an administrative procedural equivalent of Ladd v Marshall [1954] 1 WLR 1489 – whereas rule 353 is directed to points which were raised in the claimant’s original, rejected, claim – an administrative procedural equivalent of res judicata . As for the original section 96(3), it is of some interest, because it dealt expressly with renewed claims which included a ground which was identical to that raised in a previous claim which had already been considered. It was complementary to rule 353 as it concerned renewed claims which included such a ground, but, as I see it, also included other grounds which had not been raised in a previous claim. Section 96(3) operated by requiring such a renewed claim to be considered as a fresh claim, while enabling the Secretary of State to prevent an appeal on the previously raised ground. As mentioned, it tends to support the view that section 96, unlike section 94, is and was concerned with renewed claims which are defective because of the existence and contents of a previous claim by the same claimant.

Accordingly, while there is plainly a substantial argument to the effect that the words of section 94(2) are wide enough to catch further submissions which do not amount to a fresh claim within rule 353, I would hold, at least in the absence of binding authority to the contrary, that it does not do so. Section 94(2) is concerned to prevent appeals in relation to any claim (whether original or renewed) which has been considered and refused by the Secretary of State on its merits, where she concludes that the merits are so weak that the claim was “clearly unfounded”. Rule 353 is concerned to prevent a purported renewed claim having to be considered on its merits and refused, where the Secretary of State considers that it is merely a repetition of a claim which has already been made and refused. As for section 96(1), it is concerned with a different aspect of renewed claims from rule 353.

Unless, as the appellants contend, there is a decision of the Supreme Court which precludes such a conclusion, I would therefore, in agreement with the Administrative Court, hold that it was, as a matter of principle, open to the Secretary of State to rely on rule 353 in relation to a purported renewed claim. The appellants say that there is such a case, namely BA (Nigeria) [2010] 1 AC 444.

Before turning to the case relied on by the appellants, it is right to begin with the decision of the House of Lords in ZT (Kosovo) [2009] 1 WLR 348 . In that case, ZT had applied for asylum and his application was rejected by the Secretary of State in December 2005, in a letter which also certified that the claim was clearly unfounded: accordingly, ZT had no in-country right of appeal under section 92. Despite that, ZT appealed, but the AIT promptly struck out his appeal. Shortly thereafter, in January 2006, he made further submissions to the Secretary of State, with some new material, effectively purporting to renew his application for asylum. In May 2006, the Secretary of State rejected those submissions, saying that the certification that the claim was “clearly unfounded” was maintained. Collins J refused ZT’s application for permission to mount an application for judicial review of that decision.

When that application came before the House of Lords, one, indeed the first, of the three issues identified by Lord Phillips of Worth Matravers in his speech at [2009] 1 WLR 348, paragraph 12 , was whether the further submissions made by ZT in January 2006 should have been dealt with by the Secretary of State under rule 353 rather than, as the Secretary of Sate had actually dealt with them, under section 94(2).

After considering the wording of rule 353, Lord Phillips “reached the conclusion that the Court of Appeal was correct to proceed upon the basis that rule 353 applied to the further submissions that were made by ZT to the Secretary of State” – [2009] 1 WLR 348, paragraph 16. He also said at [2009] 1 WLR 348, paragraph 20, that he considered that in a case such as that of ZT “the Secretary of State should apply the rule 353 procedure in respect of cases that have been certified under section 94 and should, in all cases, treat a claim as having a realistic prospect of success unless it is clearly unfounded.”

Lord Carswell agreed with Lord Phillips, and said this at [2009] 1 WLR 348, paragraph 59:

Lord Brown of Eaton-under-Heywood also agreed with Lord Phillips on the applicability of rule 353 and its interrelationship with section 94, saying, at [2009] 1 WLR 348, paragraph 70, that “rule 353 only applies when ‘any appeal relating to [the refused] claim is no longer pending’ … and … [it] accordingly applies to any ‘further ‘submissions advanced in respect of… a claim”. I agreed with Lord Phillips, Lord Carswell and Lord Brown that “the Secretary of State … should have considered ZT’s further submissions … under rule 353” – [2009] 1 WLR 348, paragraph 84.

Lord Hope of Craighead, although agreeing in the ultimate result, took a different view as to the applicability of rule 353 in relation to ZT’s renewed claim. He concluded that the Secretary of State was right to deal with the further submissions under section 94, and that “the need for rule 353 arises only where, because, the claim is no longer alive and an appeal is no longer pending, a determination that this is a fresh claim is required for the person to appeal” – [2009] 1 WLR 348, paragraph 37.

These passages in the judgments in ZT (Kosovo) [2009] 1 WLR 348 make it quite plain that at least four of the five members of the Committee took a view of rule 353 which was wholly consistent with the conclusion reached by the Administrative Court, and the argument advanced by the Secretary of State, in this case. Accordingly, subject to the case to which I now turn, the conclusion I would have reached in the absence of recent authority is actually supported by a decision of the House of Lords. However, it is only fair to add that the contention that rule 353 had been impliedly revoked, or at least neutered, by Part 5 of the 2002 Act was not advanced in ZT (Kosovo) [2009] 1 WLR 348.

As in this case, there were two separate appellants, BA and PE. Having previously been granted indefinite leave to remain, BA was served with a decision that he was to be deported following his release from prison. His appeal against this decision to the AIT on human rights grounds failed, and he was served with a deportation order. BA then made further submissions as to why he should not be deported. The Secretary of State then reconsidered the deportation order, but refused to revoke it. As for PE, following her rejection of his application for asylum and her directing his removal, the Secretary of State decided to make a deportation order against him. PE’s appeal against this decision on asylum and human rights grounds was dismissed. Following service of the deportation order, PE made further submissions for the decision to be reconsidered. The Secretary of State refused to do so on the grounds that these further representations did not amount to a fresh claim within rule 353. BA and PE sought judicial review of the refusal of the further submissions.

At [2010] 1 AC 444, paragraph 14, Lord Hope, who gave the leading judgment observed that

In each of the two cases, in agreement with the Court of Appeal, the majority of the Supreme Court (Lady Hale dissenting) held that it was not open to the Secretary of State to rely on rule 353. It is thus clear that in BA (Nigeria) [2010] 1 AC 444, the Supreme Court decided that, where the Secretary of State receives further submissions, on which she proceeds to make an immigration decision within section 82, there will be an in-country right to appeal under section 92(4) (unless the Secretary of State has certified under section 94(2) or section 96) and it is not then open to the Secretary of State to invoke rule 353 in order to contend that the further submissions did not amount to a claim at all. So, once further submissions are treated as amounting to a claim and the claim is decided by the Secretary of State, the statutory code contained in the 2002 Act leaves no room for rule 353.

Mr Tam QC for the Secretary of State says that that decision has no bearing on the issue in either of the present cases, where there has been no appealable immigration decision in relation to further submissions which the Secretary of State has decided do not amount to a fresh claim. There is, he says, no right of appeal against such a decision (save, of course, that it is susceptible to judicial review on rationality grounds).

For the appellants, however, it is argued by Mr Gill QC and Mr Jacobs, that the reasoning of Lord Hope clearly goes wider, and ineluctably leads to the conclusion that the Supreme Court has held that, following the enactment of Part 5 of the 2002 Act, rule 353 has no further part to play, on the basis that there is now a complete statutory code, which leaves no room for a further extra-statutory gloss, which is what invocation of rule 353 in the present two cases would involve.

The leading judgment was given by Lord Hope, with whom Lord Scott, Lord Rodger, and Lord Brown (who added a few words of his own) agreed; Lady Hale dissented. The appellants’ contention in this case is that, whatever may be the view that we would otherwise have formed as to the scope of rule 353, Lord Hope concluded that the rule has effectively been replaced and neutered by part 5 of the 2002 Act, and, in particular, section 94(2), and that that conclusion is binding on this court.

There are a number of observations in the speech of Lord Hope, which, at any rate if taken at face value, can fairly be said to support that proposition. Three passages in particular stand out. At [2010] 1 AC 443, paragraphs 29-30, Lord Hope said this:

A little later at [2010] 1 AC 443, paragraph 31, Lord Hope observed:

The final passage in the reasoning of Lord Hope which the appellants rely on is in the penultimate paragraph of his judgment, where there is this:

It is accepted by Mr Tam that this last passage in particular, if read literally and, he would add, out of context, supports the appellants’ case on this appeal. But, he argues, these passages have to be considered in the context of the actual point at issue before the Supreme Court, and bearing in mind that no member of the Supreme Court suggested or implied that they were overruling or even departing from the recent House of Lords decision in ZT (Kosovo) [2009] 1 WLR 348.

As to the specific issues involved in BA (Nigeria) [2010] 1 AC 444, Mr Tam says that the two appellants in that case “were the subject of deportation orders[, who] made [further] submissions to the Secretary of State that the deportation orders should be revoked on asylum or human rights grounds, but the Secretary of State refused to revoke them.” Accordingly, he argues, the decision in each case “was undoubtedly an ‘immigration decision’ under section 82(2)(k), against which section 82(1) afforded a right to appeal.”, and, as neither set of further submissions had been certified as “clearly unfounded” (see per Lord Hope at [2010] 1 AC 444, paragraph 13), the issue before the Supreme Court was the narrow question whether the appellants’ right of appeal against the immigration decisions could be exercised only out-of-country, or whether their appeals fell within section 92(4)(a), giving them an in-country right of appeal because their further submissions were asylum or human rights claims even though they had not been accepted as fresh claims for the purposes of rule 353. That, he rightly argues, is not the point in the present appeals.

Mr Tam further relies on the fact that nowhere in the judgments in BA (Nigeria) [2010] 1 AC 444 is it stated that the whole or any part of reasoning, conclusions, or assumptions, in ZT (Kosovo) [2009] 1 WLR 348 was being departed from, or should not be relied on. If that had been the effect of the Supreme Court’s reasoning in the later case, one would have expected them to have said so, particularly as the earlier case was such a recent decision.

Like the Administrative Court, I have not found it entirely easy to resolve the issue of whether the Supreme Court was saying (a) as the appellants contend, that rule 353 has no part to play at all following the introduction of Part 5 of the 2002 Act, or (b) as the Secretary of State argues, that rule 353 has no part to play where there has been an appealable immigration decision and the only issue is whether the appeal is of a kind to which section 92 applies. Ultimately, however, again like the Administrative Court, I have come to the conclusion that the Secretary of State’s more limited interpretation is to be preferred.

Mr Tam is plainly right in his argument that the actual decision in BA (Nigeria) [2010] 1 AC 444 is not inconsistent with ZT (Kosovo) [2009] 1 WLR 348 or is not determinative of the present appeals in favour of the appellants. The actual decision was that rule 353 had no further part to play for the purposes of section 92 (4)(a) once there was an appeal against an immigration decision. The question therefore is whether, in the light of the passages in the judgment of Lord Hope relied on by the appellants, we should, as Mr Gill and Mr Jacobs contend, conclude that a wider interpretation of the reasoning in BA (Nigeria) [2010] 1 AC 444 is appropriate, so that the binding ratio is that rule 353 is effectively a dead letter. In my opinion, that contention, which I might very well otherwise have accepted, is one which should be rejected on the ground that it is plainly inconsistent with the reasoning and conclusion of the House of Lords in ZT (Kosovo) [2009] 1 WLR 348.

There is no statement in the judgments of BA (Nigeria) [2010] 1 AC 444 which says in terms that the reasoning in ZT (Kosovo) [2009] 1 WLR 348 is being effectively overruled or departed from, but that is the effect of the appellants’ contention on the present appeals. I accept, of course, that the Supreme Court (an expression which for present purposes includes the House of Lords) can impliedly, as well as expressly, depart from and effectively overrule its previous decisions. However, in this case, I have great difficulty with the notion that the later case relied on by the appellants overruled the earlier case:

Both decisions relate to a much litigated issue, and the earlier decision was given less than a year before the later decision;

The point at issue was directly addressed and decided in all five reasoned judgments in the earlier decision, and even the reasoning of the dissenter would have to be treated as overruled;

The earlier decision is expressly referred to three times in the leading judgment, and once in the only other reasoned judgment, in the later decision without apparent disapproval, and both judgments were given by judges involved in the earlier decision;

The actual outcome in the later decision can perfectly easily be reconciled with the earlier decision, namely on the basis that the later decision is limited to further submissions which have been treated as a fresh claim;

This more limited interpretation of the later decision is consistent with the Court of Appeal’s reasoning and conclusion in that case, which was specifically approved by the Supreme Court;

This more limited interpretation of the later decision is also consistent with a recent statute, whereas the wider interpretation, which would involve overruling the earlier decision, is not.

Most of these points are either self-explanatory or have already been discussed, but a few further words may be appropriate. As to point (i), where a court is departing from an earlier decision it had reached, one would expect it to say so in clear and express terms. All the more so where the two decisions are in an area which is much litigated, and where it is therefore obvious that very clear guidance is needed. This is even more true where the earlier decision had been made less than a year before the subsequent decision. One would expect to see an explanation as to why the earlier decision was being repudiated (point not argued, statutory provision overlooked, for example). Further, it is not as if the issue was in any way peripheral in the earlier case – hence point (ii). The issue was addressed as the primary point in the leading opinion in the earlier case, and the other four members of the court in the earlier case fully addressed the issue.

Point (iii) underlines the fact that there is no express disapproval of ZT (Kosovo) [2009] 1 WLR 348 in BA (Nigeria) [2010] 1 AC 444: it is not as if it was ignored, and therefore disapproved because it was simply not addressed. It was mentioned by Lord Hope no less than three times in the course of his concise judgment, and each time either with implied approval (albeit on a limited aspect) or without implied, let alone express, disapproval. It is hard to accept that the Supreme Court believed that they were departing from, effectively overruling, an earlier decision if they not only failed to say so in terms, but actually referred to it more than once without apparent disagreement. Even if it was open to this court to consider that whether the Supreme Court in a later case could have overlooked the fact that they were overruling an earlier decision they had made, that cannot be true where the two judges who gave reasoned judgments in the later case also gave reasoned judgments in the earlier case.

Point (iv) has already been explored: see paragraphs 49 and 52 above. So far as point (v) is concerned, at [2010] 1 AC 444, paragraphs 29 and 32 Lord Hope expressly approved observations of Sedley and Lloyd LJJ respectively in the Court of Appeal, whose decision the Supreme Court upheld. The Court of Appeal would, of course, have been bound to follow ZT (Kosovo) [2009] 1 WLR 348, and they therefore must have distinguished it; accordingly, although it is, I accept, little more than a straw in the wind, Lord Hope’s express approval of parts of their reasoning provides some support for the notion that the same approach was being adopted by the Supreme Court.

Point (vi) also relies on a factor which has been mentioned. If the wider interpretation of BA (Nigeria) [2010] 1 AC 444, overruling ZT (Kosovo) [2009] 1 WLR 348, is adopted, rule 353 has had no role to play since the 2002 Act came into force; on that basis, section 53 of the Borders Citizenship and Immigration Act 2009 would have been misconceived and pointless legislation. That would not be so if the narrower interpretation is adopted. That factor was not considered in BA (Nigeria) [2010] 1 AC 444, nor should it have been given the point actually at issue. However, it should have been considered, and presumably would have been considered, if the Supreme Court was deciding that rule 353 was a dead letter. It is true that, in BA (Nigeria) [2010] 1 AC 444, paragraph 26, Lord Hope rejected an argument relating to rule 353 based on Section 12 of the Immigration, Asylum and Nationality Act 2006 on the ground that that section had not been brought into force. However, the argument was far less clear, as it is much less apparent from section 12 of the 2006 Act than it is from section 53 of the 2009 Act that rule 353 was assumed by Parliament to be effective. Further, with all due respect, it seems to me that, where one is dealing with an issue of statutory interpretation, one is considering what the legislature intended or understood, so legislation as enacted is relevant, whereas the question whether the executive has chosen to bring that legislation into force is not relevant.

In all these circumstances, unless it is pellucidly clear from the judgments in BA (Nigeria) [2010] 1 AC 444, and in particular the passages relied on by the appellants in paragraphs 29-33 in the judgment of Lord Hope, as set out above, that the reasoning and conclusion in ZT (Kosovo) [2009] 1 WLR 348 was being overruled it seems to me that we should dismiss this appeal. Those passages (and in particular the words I have emphasised) undoubtedly give support to the appellants’ argument, if read on their own.

However, as with any observations contained in a judgment, one cannot properly interpret the passages other than in their factual and juridical context. Given all the factors I have mentioned, I have reached the conclusion that what was said in those passages can, and therefore should at any rate in this court, be read as being confined to cases where there is an appealable immigration decision. Once there is such a decision, the complete code contained in the legislative scheme applies and rule 353 has no part to play. However, as decided in ZT (Kosovo) [2009] 1 WLR 348, rule 353 still has “a part to play”: the Secretary of State can decide that the further submissions are not a “fresh claim”, in which case one does not enter the territory governed by the “complete code” of “the legislative scheme”.

Accordingly, I would dismiss these appeals.

I agree.