On 13 March 2019, the Supreme Court concluded that the rejection of the Appellant’s further submissions did not attract a right of appeal after the Appellant sought for the Court to find that the Secretary of State for the Home Department’s (SSHD) approach to further submissions (and that of the Courts as well), since the amendments to the Nationality, Immigration and Asylum Act 2002, was incorrect. As a result, it follows that the status quo continues and if the SSHD finds that an Appellant’s further submissions do not satisfy the fresh claims test then their only remedy is to challenge that decision by way of judicial review.
Where a person has already had a human rights claim refused and there is no pending appeal, do further submissions that rely on human rights grounds have to be accepted by the SSHD as a fresh claim, in accordance with paragraph 353 of the Immigration Rules, if a decision in response to those representations is to attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (2002 Act)?
Background to the appeal
The Appellant is a Jamaican national who arrived in the United Kingdom on 9 October 1998 when he was seven years old. His immigration status was never regularised. He committed several criminal offences and the SSHD initiated deportation proceedings against him. On 17 July 2013, a deportation order was issued and he appealed to the First-tier Tribunal (FtT) that it would be a breach of Article 8 of the ECHR on the basis of his private life in the UK. It was accepted, at the time, that the Appellant was not relying on a breach based on his family life. His appeal was dismissed, and he was refused permission to appeal to the Upper Tribunal (UT). He exhausted his rights of appeal on 1 May 2015.
On 13 May 2015, the Appellant’s previous solicitors made further submissions to the SSHD, focusing on the fact that his partner at the time was pregnant. The SSHD treated the representations as an application to revoke the deportation order on the basis that it would breach Article 8 of the ECHR. In a letter dated 23 June 2015, the SSHD concluded that deportation would not breach Article 8, refused to revoke the deportation order and decided that the submissions did not amount to a fresh human rights claim under paragraph 353 of the Immigration Rules.
The Appellant’s son was born on 26 July 2015. The Appellant made further submissions to the SSHD on 28 July 2015 regarding the birth of his son and providing documentation from the hospital. In a letter dated 31 July 2015, the SSHD again concluded that deportation would not breach Article 8 and that the further submissions did not amount to a fresh claim.
The Appellant appealed against the decision of 31 July 2015 but the FtT declined jurisdiction on the basis that there was no right of appeal against the decision. The UT dismissed his application for judicial review of the SSHD’s decision that the further representations were not a fresh claim and the FtT’s decision that he had no right of appeal. On 4 May 2017, the Court of Appeal dismissed his appeal.
The Supreme Court dismissed the appeal. In summary, the Court found that a “human rights claim” in section 82 of the amended 2002 Act means an original human rights claim or a fresh human rights claim within paragraph 353. As a result, the SSHD’s response to the Appellant’s further submissions did not attract a right of appeal.
The Court rejected the Appellant’s submissions that the line of authority beginning with R v Secretary of State for the Home Department ex parte Onibiyo  QB 768, which established that it was for the SSHD to decide whether further submissions constituted a fresh claim giving rise to a right of appeal, did not survive the Supreme Court’s decision in BA (Nigeria) v Secretary of State for the Home Department  UKSC 7.
Following suit, the Court rejected the Appellant’s submissions that the amendments to the 2002 Act introduced by the Immigration Act 2014 fundamentally changed the operation of the statutory scheme, with the result that paragraph 353 no longer applies.
The Appellant was seeking for the Court to find that the SSHD’s approach to further submissions (and that of the Courts as well), since the amendments to the 2002 Act, was incorrect. The Court rejected those arguments and maintained the status quo, that is, the SSHD acts as a gatekeeper to further submissions; if the further submissions are rejected but the SSHD says that they satisfy the fresh claims test in paragraph 353 then the Appellant will have an in country right of appeal. If the SSHD says that they do not satisfy the fresh claims test then the Appellant’s only remedy is to challenge that decision by way of judicial review.
The Appellant was represented by Stefan Vnuk of Duncan Lewis with Michael Fordham QC, of Blackstone Chambers, Ronan Toal, of Garden Court Chambers, and Catherine Robinson, of One Pump Court Chambers, instructed as Counsel.