Amin Sharif Hussein, R (on the application of) v First-Tier Tribunal

A person (“P”) may appeal to the Tribunal where –

For the purposes of this Part –

The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”

In this part, unless a contrary intention appears –

“ ’asylum claim’ –

means a claim made by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention, but

does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules”;

means a claim made by a person that to remove him from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights, but

does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules .”

“ Procedure and rights of appeal

Fresh claims

When a human rights or protection claim (Footnote: ⁵ ) has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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:

had not already been considered; and

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.”

R v Home Secretary ex p Onibiyo [1996] QB 768

“ The first issue argued in this court was whether, as a matter of law, a person may during a single uninterrupted stay in the United Kingdom make more than one ‘claim for asylum’. By ‘claim for asylum’ is meant a claim falling within the definition in section 1 of the Act of 1993. The applicant argued that after dismissal of a first claim, a fresh claim could in law be made. The Secretary of State took a different view: he argued that once a person had made a ‘claim for asylum’, been refused by the Secretary of State and unsuccessfully exercised his rights of appeal under section 8 of the Act of 1993, that exhausted his legal rights. He could lay new material before the Secretary of State and the latter, if so advised, could in the exercise of his discretion refer such material to a special adjudicator or the tribunal under section 21 of the Act of 1971 (applicable to asylum cases by virtue of paragraph 4(2)(d) of Schedule 2 to the Act of 1993) for consideration by that person or body. But once there had been one claim for asylum and one appeal, there could be no further ‘claim for asylum’ unless the claimant had left the United Kingdom and returned before making the fresh application.

The judge accepted the Secretary of State’s argument. After a careful review of the relevant provisions and authorities, and of the arguments addressed to him, he said:

I prefer the applicant’s argument on this point. The obligation of the United Kingdom under the Convention is not to return a refugee (as defined) to a country where his life or freedom would be threatened for any reason specified in the Convention. That obligation remains binding until the moment of return. A refugee (as defined) has a right not to be returned to such a country, and a further right not to be returned pending a decision whether he is a refugee (as defined) or not. It would in my judgment undermine the beneficial object of the Convention and the measures giving effect to it in this country if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh ‘claim for asylum’. It cannot in my view make any difference whether the person making the fresh ‘claim for asylum’ has left the country and returned or remained here throughout.

Any other construction would in my view be offensive to common sense. However rarely they may arise in practice, it is not hard to imagine cases in which an initial ‘claim for asylum’ might be made on insubstantial, or even bogus, grounds, and be rightly rejected, but in which circumstances would arise or come to light showing a clear and serious threat of a kind recognised by the Convention to the life or freedom of the formerly unsuccessful applicant. A scheme of legal protection which could not accommodate that possibility would in my view be seriously defective.”

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A fresh claim?

It was accepted for the applicant that a fresh 'claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it had to satisfy tests, analogous to Ladd v Marshall [1954] 1 WLR 1489, of previous unavailability, significance and credibility.

Stuart-Smith L.J. considered this matter in the Manvinder Singh case (unreported), 8 December 1995, where he said (with the agreement of Rose L.J. and Sir John Balcombe):

I agree with this passage, and with the propositions accepted by counsel for the applicant. There is danger in any form of words, which can too easily be regarded as a binding formula. In the Manvinder Singh case [1996] Imm A.R. 41, Carnwath J held that a change in the character of the application was required. I am content with that statement, provided it is not taken to mean that there must necessarily be a change in the nature of the persecution said to be feared. The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.

Who is to decide?

It is plain from rule 328 of Statement of Changes in Immigration Rules that all asylum applications will be determined by the Secretary of State in the first instance.

Procedural consequences

If the Secretary of State decides on a fresh claim to grant asylum, and the claimant is accordingly granted limited leave to enter, no procedural difficulty is likely to arise.

If the Secretary of State recognises a fresh claim as a 'claim for asylum', but nonetheless decides that asylum should not be granted, I see no reason why the same consequences should not follow as on refusal of an initial claim. The disappointed claimant can pursue his right of appeal under section 8.

The problematical situation is that in which, as here, the Secretary of State does not recognise a claim as a fresh 'claim for asylum' and so declines to make any decision or to take or omit to take any action which would trigger a right of appeal under section 8. Neither party suggested that the asylum-seeker was without redress in this situation, and both accepted that redress could be obtained only by resort to the court. But there agreement ended. The applicant argued that whether or not a fresh 'claim for asylum' had been made was a matter of precedent fact to be decided, in case of dispute, by the court. The Secretary of State argued that the question was one for him and his decision, while not immune from challenge, could be challenged only on grounds of irrationality. The cases already referred to contain tentative expressions of opinion both ways.

The judge did not rule on this question, and it is not clear to what extent it was argued before him. It was not raised in the notice of appeal, and not explored in the applicant's skeleton argument in this court. No authority was cited to us. For reasons given in Section V below, I do not regard the answer to the question as determinative of this appeal. Since the issue is one of importance, and also in my opinion of considerable difficulty, I accordingly proffer a tentative answer only.

The role of the court in the immigration field varies, depending on the legislative and administrative context. Where an exercise of administrative power is dependent on the establishment of an objective precedent fact the court will, if called upon to do so in case of dispute, itself rule whether such fact is established to the requisite standard. Thus, for example, where power to detain and remove is dependent on a finding that the detainee is an illegal entrant, one who has entered clandestinely or by fraud and deceit, the court will itself rule whether the evidence is such as to justify that finding: Reg. v Secretary of State for the Home Department, EX.1 parte Khawaja [1984] A.C. 74. By contrast, the decision whether an asylum-seeker is a refugee is a question to be determined by the Secretary of State and the immigration appellate authorities, whose determinations are susceptible to challenge only on Wednesbury principles: Reg v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514. I am of opinion, although with some misgivings, that the judgment whether a fresh 'claim for asylum' has been made should be assimilated with the latter, and not the former, class of judgment. If the test propounded in (1) above is correct, the answer to the question whether or not a fresh 'claim for asylum' has been made, will depend not on the finding of any objective fact, nor even on a literal comparison of the earlier and the later claim, but on an exercise of judgment, and this is a field in which the initial judgments are very clearly entrusted to the Secretary of State. In giving effect, for example, to rule 346 of the Statement of Changes in Immigration Rules, it must be for the Secretary of State and not for the court to rule whether the applicant can demonstrate a relevant and substantial change in circumstances since his refusal of an earlier application. In a case such as the present, the judgment is not very different from that which the Secretary of State may make under section 21 of the 1971 Act.

I would accordingly incline to accept the Secretary of State's argument on this point, while observing that decisions reached by him are susceptible to challenge on any Wednesbury ground, of which irrationality is only one: see Associated Provincial Picture Houses Ltd. V Wednesbury Corporation [1948] 1 KB 223.”

A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

.....

This section also applies to an appeal against an immigration decision if the appellant –

For the Secretary of State Miss Laing QC did not dispute that a right of appeal arises under section 82(1) when a decision that is an immigration decision is taken. Nor does she dispute that the Secretary of State’s refusal in these cases not to revoke the deportation orders were immigration decisions within the meaning of section 82(2)(k) of the 2002 Act. What was in issue was whether the right of appeal against those decisions was to be exercised from within the United Kingdom. Her submission was that the words ‘an asylum claim, or a human rights claim’ in section 92(4)(a) mean a first asylum or human rights claim or a second or subsequent asylum or human rights claim which has been accepted as a fresh claim under rule 353 of the Immigration Rules.

She acknowledged that this was not the literal meaning of this provision, as the definitions of these expressions made no reference to the fact that the claims to which they referred had to be a first or a fresh claim. But she said that they had to be construed in the context of the scheme of the statute as a whole, and that they had to be read in the way she suggested to avoid an absurdity. She submitted that the authorities also showed that they had to be read subject to this qualification.”

“ Discussion

I have set out the competing arguments at some length, partly out of respect for the excellent submissions that were advanced by counsel on either side in the Chamber of the House of Lords on the occasion of the last sitting of the House in its judicial capacity, and partly because they demonstrate very clearly the essence of the issue that we must decide. Miss Laing invites us to follow Sir Thomas Bingham MR’s analysis of the problem in R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768, to hold that the words ‘an asylum claim, or a human rights claim or a second or subsequent claim which has been accepted by the Secretary of State as a ‘fresh claim’, and that the procedure for determining whether or not a second or subsequent claim is a fresh claim is to be found in rule 353 of the Immigration Rules. Mr Husain on the other hand invites us to examine those words in the context of the current legislation read as a whole, taking full account of the progress of thinking since Ex p Onibiyo as to how the problem of repeat claims should be addressed. He submits that there is no justification, in the light of the provisions for dealing with repeat claims that the 2002 Act contains, for enlarging upon the plain words of the statute.

The strength of Miss Laing’s argument lies in the fact that the definition of the phrase ‘claim for asylum’ has remained, in substance, the same since its first appearance in section 1 of the 1993 Act where it was said to mean:

In R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768 the Secretary of State’s argument that once there had been a claim for asylum and one appeal there could be no further ‘claim for asylum’ unless the claimant had left the United Kingdom and returned before making the fresh application was rejected. It was held that there could be a fresh ‘claim for asylum’ with the same consequences as to the right of appeal as follow on the refusal of an initial claim, provided that the Secretary of State recognised the fresh claim as a ‘claim for asylum’. If one looks no further and applies what Bennion on Statutory Interpretation, 5^th ed (2008), section 201 and Part X1V described as ‘the informed interpretation rule’, there is plainly much to be said for the view that the definitions that are set out in section 113 of the 2002 Act should be read in the same way. The procedure for determining whether a repeat claim is or is not a ‘fresh claim’ is set out in rule 353 of the Immigration Rules, the effect of which I attempted to explain in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 33. It is a short step to conclude that a repeat claim which is not held under rule 353 to be a fresh claim falls to be disregarded as ‘an asylum claim’, or a ‘human rights claim’ for the purposes of section 92(4)(a). Like Lloyd LJ, I would not draw an inference either way from the amendment of section 113 by section 12 of the 2006 Act as it is not yet in force.

It is an elementary principle, however, that the words of a statute should be construed in the context of the scheme of the statute as a whole. And it is plain that the scheme of the 2002 Act is not the same as that of the 1993 Act to which Sir Thomas Bingham MR addressed himself in Ex p Onibiyo [1996] QB 768. The problem to which he addressed himself was created by the absence of any provision in the statute to prevent abuse. The question was how that gap might best be filled, having regard to the fact that the blunt solution that was proposed by the Secretary of State would, as the Master of the Rolls pointed out at p 781G, undermine the beneficial object of the Convention and the measures giving effect to it in this country.

Parliament might, of course, have stood still and left the matter to be dealt with under the Immigration Rules. But it has not stood still. The experience of the intervening years has been taken into account. First, there were the provisions against abuse in sections 73 to 77 of the 1999 Act. Now there is a set of entirely new provisions in the 2002 Act. As Lord Hoffmann said in A v Hoare [2008] AC 844, para 15, while there is a good deal of authority for having regard in the construction of a statute to the way a word or phrase has been construed by the court in earlier statues, the value of such previous interpretation as a guide to construction will vary with the circumstances. In this case the phrase in question has remained, in essence, unchanged. But the system in which it must be made to work is very different. This is a factor to which full weight must be given.

The new system contains a range of powers that enable the Secretary of State or, as the case may be, an immigration officer to deal with the problem of repeat claims. The Secretary of State’s power in section 94(2) of the 2002 Act to certify that a claim is clearly unfounded, if exercised, has the effect that the person may not bring his appeal in-country in reliance on section 92(4). The power in section 96 enables the Secretary of State or an immigration officer to certify that a person who is subject to a new immigration decision has raised an issue which has been dealt with, or ought to have been dealt with, in an earlier appeal against a previous immigration decision, which has the effect that the person will have no right of appeal against the new decision. It is common ground that the present cases are not certifiable under either of these two sections. Why then should they be subjected to a further requirement which is not mentioned anywhere in the 2002 Act? It can only be read into the Act by, as Sedley LJ in the Court of Appeal put it, glossing the meaning of the words ‘a.....claim’ so as to exclude a further claim which has not been held under rule 353 to be a fresh claim: [2009] QB 686, paras 20, 30. The court had to do this in Ex p Onibiyo [1996] QB 768. But there is no need to do this now.

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.... There is obviously a balance to be struck. The immigration appeals system must not be burdened with worthless repeat claims. On the other hand, procedures that are put in place to address this problem must respect the United Kingdom’s international obligations. That is what the legislative scheme does, when section 95 is read together with section 94(9). It preserves the right to maintain in an out of country appeal that the decision in question has breached international obligations. I would hold that claims which are not certified under section 94 or excluded under section 96, if rejected, should be allowed to proceed to appeal in-country under sections 82 and 92, whether or not they are accepted by the Secretary of State as fresh claims.

There is no doubt, as I indicated in Z T (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 33, that rule 353 was drafted on the assumption that a claimant who made further submissions would be at risk of being removed or required to leave immediately if he does not have a ‘fresh claim’. That was indeed the case when this rule was originally drafted, as there was no equivalent of section 92(4) of the 2002 Act. But Mr Husain’s analysis has persuaded me that the legislative scheme that Parliament has now put in place does not have that effect. Its carefully interlocking provisions, when read as a whole, set out the complete code for dealing with repeat claims. Rule 353, as presently drafted, has no part to play in the legislative scheme. As an expression of the will of Parliament, it must take priority over the rules formulated by the executive. Rule 353A on the other hand remains in place as necessary protection against premature removal until the further submissions have been considered by the Secretary of State.”

“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 repetition of an earlier claim whose rejection has been unsuccessfully challenged in a concluded appeal”.

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The contention of the claimants, 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 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 Secretary of State for the Home Department [2009] 1 WLR 348, and of the Supreme Court in R (BA (Nigeria)) v Secretary of State for the Home Department [2010] 1 AC 444, this latter decision providing the main plank for the claimant’s argument.

.....

Rule 353 of the Statement of Changes in Immigration Rules (1994) (HC 395), as inserted and amended, 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)(2) is 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)(2) can and do co-exist perfectly satisfactorily; the claimants’ 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 –

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 claimants 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 claimants’ 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.

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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 claimants 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 claimants’ 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, ie 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. None the less 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.

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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.”

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 claimants 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 the BA (Nigeria) case is not inconsistent with the ZT (Kosovo) case or is not determinative of the present appeals in favour of the claimants. The actual decision was that rule 353 had no further part to play for the purposes of section 92(4) 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 DPSC relied on by the claimants, we should, as Mr Gill and Mr Jacobs contend, conclude that a wider interpretation of the reasoning in the BA (Nigeria) case 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 the ZT (Kosovo) case [2009] 1 WLR 348.

There is no statement in the judgments of the BA (Nigeria) case [2010] 1 AC 444 which says in terms that the reasoning in the ZT (Kosovo) case is being effectively overruled or departed from, but that is the effect of the claimants’ 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 claimants overruled the earlier case. (i) Both decisions relate to a much litigated issue, and the earlier decision was given less than a year before the later decision; (ii) 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; (iii) 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; (iv) 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; (v) 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; (vi) 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.

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… If the wider interpretation of the 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 DPSC 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 claimants, at paras 29-33, in the judgment of Lord Hope DPSC, 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 claimants’ 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’.”

Paragraph 353 does not appear and is not alluded to in the legislative framework. It and its predecessor have never been alluded to. The two systems exist alongside each other. It remains in the Rules and, despite the amendment of s82 of the 2002 Act from 20^th October 2014 and despite there being amendments to the Rules since that date there has been no amendment to paragraph 353. Although Ms Akinbolu submitted that the paragraph 353 process still applied in for example asylum cases and therefore the Rules could not be amended, this is not the case. Had there been an intention that the paragraph 353 process would cease to apply in certain categories of cases this could and would have been set out in amendments to the Immigration Rules. 

Can paragraph 353 co-exist with the legislative scheme? Ms Akinbolu submits not, because the protections that exist in the statutory scheme mean that paragraph 353 is no longer required and thus the paragraph has been impliedly repealed or is of no effect and should not be utilised.

The current appeal scheme enables an appeal against a decision by the SSHD refusing the applicant’s human rights claim. There has to be a claim and then a decision in order to enable an appeal. The current scheme no longer enables an appeal against a decision refusing to revoke a deportation order. The SSHD may, having decided to refuse a human rights claim, thereafter decide whether to invoke the certification process. Without a claim (and without a decision) there is no appeal.  

The history of paragraph 353 and the jurisprudence is set out above. BA (Nigeria) was concerned with a decision, not whether there had been a decision. ZT (Kosovo) concerned the continuing responsibility of the respondent to consider representations made whilst an applicant remained in the UK even though the initial claim had been refused and certified – again there had been a decision and the issue was what to do with submissions. ZA (Nigeria) confirmed that the respondent was not obliged to issue an appealable immigration decision whenever further submissions were made.  

If the applicant is correct and any submission made amounts to a claim, the response to which is an appealable decision, this would result in an applicant being able to make numerous consecutive claims that would result in numerous consecutive appeals. Although each of those could be certified, the mere existence of such a scenario would result in it being virtually impossible to reach finality. BA (Nigeria) is not authority for the proposition that submissions amount to a claim and that the response to those submissions is a decision within the meaning of Part 5. The current statutory framework continues to provide for unmeritorious claims to be certified. There is nothing in this framework that precludes the making of a categorisation decision; paragraph 353 remains in force.

The current statutory appeal context requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal. Submissions that purport to be a human rights claim do not without more trigger a right of appeal. There has to be an intermediate step, a categorisation, namely ‘do the submissions amount to a claim at all’. Paragraph 353 of the Rules provides the mechanism to determine whether they amount to a claim; if not then the decision does not amount to a decision to refuse a human rights claim.

If an applicant is aggrieved by a decision not to categorise submissions as a claim, then s/he has a remedy in judicial review proceedings. Where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim. If determined to be a claim the decision to refuse that claim will trigger a right of appeal, subject to certification. If the submissions are determined not to be a claim, as here, there is no decision and thus no right of appeal.”

The Court of Appeal’s decision on the renewal application for permission to appeal against the Tribunal’s decision in Waqar

The Secretary of State in the submissions before the Tribunal, which were accepted, maintains that paragraph 353 continues to act as a gateway and relies on the decision of ZA (Nigeria) for this.

Miss Akinbolu submits first, that ZA (Nigeria) was dealing with the previous statutory regime. Secondly, she submits that its approach contradicts that of the Supreme Court in BA (Nigeria) that paragraph 353 has no bearing. She maintains that if paragraph 353 is added as a gloss to the statutory scheme, it removes cases from the control of an independent court. That matter was a matter which concerned, for example, Lord Brown and Lord Hope in BA (Nigeria).

......

Permission to appeal was refused by Underhill LJ on 31^st July, essentially on the grounds that ZA (Nigeria) had confirmed that under the pre-2014 regime, rule 353 permitted the Secretary of State to decide that a purported human rights claim was not in fact such a claim but was no more than an attempt to revive a previously unsuccessful claim (see paragraph 27). Underhill LJ stated that if she did that, there was no immigration decision within the meaning of section 82 and that nothing in the changes introduced by the 2014 Act undermined that reasoning. He also stated that:

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There is no longer a right of appeal against a decision about deportation unless the decision refuses a protection claim or revokes a protection status. The case advanced on behalf of HW below and today is that if a person makes a human rights claim, then that person has a right of appeal against the refusal of that claim and that the definition of human rights claim is that in section 113. As amended by the 2014 Act, section 113 provides that:

In this case the Upper Tribunal decided (see paragraphs 14 and following of its decision) that the regime in paragraph 353 co-exists with the legislative scheme. The amendments to section 82 do not refer to it and there is no indication in the statute that paragraph 353 would cease to apply. The legislation is concerned with circumstances in which an appeal will lie against a refusal of a claim to protection. Part V of the 2002 Act does not affect what constitutes ‘a claim’, a prior question to whether there is a decision refusing what is ‘a claim’. The tribunal held that for that reason the decision in BA (Nigeria) was not of assistance.

......

… My starting point is that it is not legitimate to take isolated statements from BA (Nigeria) out of context. In that case the context was a situation which, by section 82(2)(k), a decision to revoke a deportation order generated a right to an in-country appeal unless it was certified under section 94. Accordingly, it was not in issue that there was an appealable decision, only the locus of the appeal. The right to that appeal existed, whether or not it was repetitious. BA (Nigeria) was not concerned with whether a right of appeal should arise at all. That was what ZA (Nigeria) was concerned with. This court, in a judgment given by the Master of the Rolls, Lord Neuberger, held that BA (Nigeria) did not require the Secretary of State to issue an appealable immigration decision whenever further submissions were made. He gave BA (Nigeria) a narrow reading: see Lord Neuberger at 21:

Secondly, ZA (Nigeria), which binds this court, recognised that the public interest in not affording scope for repetitive and abusive claims with a second right of appeal, which is reflected in paragraph 353, applies notwithstanding sections 94 and 96. Those provisions do not have the same function of limiting access to a second right of appeal.

Thirdly, I respectfully agree with Underhill LJ that the difference between the term ‘immigration decision’ in the old section 82 Act and ‘decided’ in the new section 82 is a matter of drafting technique, rather than reflecting a fundamental difference in the nature of the decision. I do not consider that the use of the word ‘decision’ in the letter assists Miss Akinbolu: it refers to not reversing the rejection of a previous decision which had been the subject of appeal.

Fourthly, on the applicant’s submission, as Miss Akinbolu accepted, any person who makes an entirely repetitive second claim the day after appeal rights in relation to a first claim are exhausted will be entitled to a further right of appeal. I accept the argument that the process of leaving this matter to a process of certification would not only impose a higher administrative burden on the Home Office, but would also completely forestall the ability of the Secretary of State to decide whether some communication between a person in this country without status and the Secretary of State qualifies or does not quality as a relevant decision. Although Miss Akinbolu’s submissions about BA (Nigeria) would apply where a submission purporting to be a protection claim or a human rights claim are in fact such, I do not consider that it is arguable that the Secretary of State was precluded from deciding that submissions do not constitute such a claim. In short, I do not consider that BA (Nigeria) precludes the Secretary of State from making a categorisation decision about a communication from an individual.”

At this point I must address Ms Robinson’s submissions concerning the amendment to Section 113 of the 2002 Act. In short she argues that it is implicit in the fact that the new unimplemented version of the definition of what is a human rights claim specifically excludes from that definition a claim that fails to meet the fresh claims test of paragraph 353 that the original version did not do so, otherwise there would have been no reason to provide for the exclusion in the new version.

Mr Fisher contends that that is not correct. In his submission the new version of the definition does no more than to clarify the position that pertained before. For reasons that will be clear from the judgment, I do not accept the analysis urged upon me by Ms Robinson. I have no doubt at all that I should follow the approach to Waqar taken by Lord Justices Underhill and Beatson. I cannot say that Waqar is wrongly decided and in fact I am confident that it is correctly decided and so will follow it in determining this application. In any event, as Mr Fisher has submitted, I am bound by the decision of the Court of Appeal in ZA (Nigeria) and so must accept the narrow reading of the ration in BA (Nigeria).”

In fact Mr Mackenzie was at pains to submit that his client took no issue with the decision of the UT in Waqar and therefore accepted that for present purposes s.82(2)(a) of the 2002 Act should be read as meaning ‘a person may appeal to the tribunal where (a) the Secretary of State has decided to refuse a protection claim (that is a fresh claim within the meaning of para 353) made by P’. He submits that the issue in the present application is who decides whether the claim is a fresh claim.

Whereas the previous case law is clear that this is a question for the Secretary of State subject to the supervision of judicial review (see R v SSHD, ex parte Onibiyo [1996] QB 768; Cakabay v SSHD (No 2) [1998] Imm AR 623; and ZA (Nigeria) itself), Mr Mackenzie contends that as a result of Parliament’s decision to grant a right of appeal from a refusal of a protection claim, then the FtT judge has jurisdiction to decide whether there had been a decision to refuse a protection claim.

His argument proceeds as follows:-

Attractively as Mr Mackenzie has presented his submissions to us, we are unable to agree with them.

In our view, notwithstanding the significant change in s.82 from a right of appeal against an immigration decision on a protection ground to a right of appeal against a protection decision itself, Parliament can be presumed to have legislated against the background of satisfaction with the previous law as declared in ZA (Nigeria). There is no indication in the amendments made, that it was intended to transfer responsibility for the categorisation decision of whether a claim is a fresh claim to the FtT. Indeed the general purpose of the 2014 amendments was to reduce the appellate jurisdiction of the FtT.

Second, we do not agree that an assessment of whether a protection claim is a fresh claim is a question of jurisdictional fact to be determined by the FtT judge. In our judgment it remains a matter of assessment and evaluation by the SSHD subject to supervision in judicial review. Both the High Court and the Court of Appeal decisions in Cakabay are to this effect and nothing in the legislative changes suggests that a new approach must now be taken. We do not accept that these decisions are explained merely because the judicial review court does not apply the approach of jurisdictional fact rather than public law review on nationality grounds.

Third, we do not accept that the Secretary of State refused a protection claim when she rationally concludes that the claim before her is not a fresh claim. Mr Mackenzie’s reliance on the decisions in Basnet and Khan does not avail him. The UT subsequently decided in the case of VED [2014] UKUT 150 (IAC) that a decision that no valid application has been made and no immigration decision is required to respond to it is not itself an appealable decision, and there is no jurisdiction in the FtT judge to examine the facts for himself and conclude that as a valid application had in fact been made there ought to have been an immigration decision in response to it.

Here, the rationality of the Secretary of State’s decision is not in issue. Mr Mackenzie does not in addition to the challenge to the FtT decision contend that the SSHD’s assessment was flawed; the application rests on the proposition that a new decision can be made by the FtT judge on this issue. We consider that this case falls on the VED side as opposed to the Basnet side of the line as regards the limits of the FtT’s ability to determine whether it has jurisdiction to determine an appeal. In our view there can be no decision to refuse a protection claim where the representations are not recognised (rationally) to be a protection claim.”

“I would hold that claims which are not certified under section 94 or excluded under section 96, if rejected, should be allowed to proceed to appeal in-country under sections 82 and 92, whether or not they are accepted by the Secretary of State as fresh claims.”

...I have reached the conclusion that what was said in [BA (Nigeria)] 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) ....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.”

“Stage 1: further submissions are provided to the Secretary of State.

Stage 2: the Secretary of State considers whether the submissions warrant a grant of leave. No decision is or needs to be made at this stage as to whether those submissions amount to a ‘fresh claim’.

Stage 3: if the submissions are accepted, leave is granted. If the submissions are rejected, however, the Secretary of State will go on to consider whether those submissions amount to a ‘fresh claim’. There are then two options:

if, as here, the Secretary of State determines that submissions do not amount to a fresh claim, per ZA (Nigeria), then the further submissions are ‘not a claim at all’. Accordingly, there is no ‘claim’ to refuse. In these circumstances, because there has been no refusal of a protection/human rights claim, no appeal right arises;

if, however, the Secretary of State determines that the further submissions do constitute a ‘fresh claim’, she will refuse the claim. In these circumstances, an appeal right arises under section 82(1) of the 2002 Act.”