Read my detailed analysis regarding the case of R (Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR  UKUT 169 (IAC)
Despite the Upper Tribunal’s decision last year in R (Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR  UKUT 169 (IAC), there has recently seen a resurrection of the argument that arose in that case, that following the Immigration Act 2014’s amendment to Part 5 of the Nationality Immigration and Asylum Act 2002 and placing reliance upon BA (Nigeria) v SSHD  UKSC 7, if a human rights claim is raised, there is no need for that claim to meet the considerations of paragraph 353 of the Immigration Rules and thus absent certification, the claim must attract a right of appeal, not being subject to a paragraph 353 Immigration Rules gateway.
Considered in Waqar was whether Paragraph 353 could co-exist with the legislative scheme. It had been submitted on behalf of the Applicant not, because the protections that exist in the statutory scheme meant that paragraph 353 was no longer required and thus the paragraph had been impliedly repealed or was of no effect and should not be utilised.
The relevant legislative certification scheme referred to was:
- 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.
- The power in section 96 of the 2002 Act 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.
BA (Nigeria) related to an appeal against a decision to refuse to revoke a deportation order and whether such appeal could be brought in country having regard to whether s92(4) 2004 Act applied. BA (Nigeria) was concerned with an appealable decision as defined by s82 of the 2002 Act then in force. The issue was whether the appeal was suspensive in operation. BA claimed that Sections 94 and 96 were sufficient safeguards against abusive or unmeritorious claims. BA’s claim was conceded not to fall within either of those categories. The court held that he should not be subject to a further hurdle to cross which is what would happen if paragraph 353 were to apply. Therefore in a case where there is a right of appeal ie an appealable immigration decision, where s94 or s96 do not apply then 353 does not apply.
The Upper Tribunal in Waqar, held that the current statutory appeal regime requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal.
Where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim. Paragraph 353 of the Immigration Rules provides the mechanism to determine whether they amount to a claim the refusal of which enables a right of appeal.
Most recently in Robinson, R (on the application of) v Secretary of State for the Home Department (paragraph 353 – Waqar applied) (IJR)  UKUT 133, the Upper Tribunal considered again by way of a judicial review claim whether in the statutory scheme, as amended by the Immigration Act 2014, paragraph 353 of continues to perform a gateway function to accessing the appeal rights now provided by Section 82 of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal in Robinson also considered whether Waqar was wrongly decided.
As per the Headnote in Robinson, the Upper Tribunal’s conclusions in summary are :
- Notwithstanding the amendments brought about by the Immigration Act 2014 to the types of decisions appealable under s82 of the Nationality, Immigration and Asylum Act 2002, para 353 of HC395 continues to perform a gateway function in respect of access to a right of appeal. Arguments to the contrary, founded upon dicta in BA (Nigeria) v SSHD  UKSC 7, are misconceived because, as explained in ZA (Nigeria) v SSHD  EWCA Civ 926, in BA (Nigeria) immigration decisions (of a type that no longer give rise to a right of appeal) had been made so that there was, on that account, a right of appeal.
- The argument now advanced, which was not considered by the Upper Tribunal in R (Waqar) v SSHD (statutory appeals/paragraph 353) IJR  00169 (IAC), founded upon the amendment to the definition of “a human rights claim” found at s113 of the 2002 Act, provided for by the Immigration, Asylum and Nationality Act 2006 but not yet implemented, is no basis for doubting that Waqar is correctly decided.
- Where the respondent rejects further submissions and goes on to conclude that they do not amount to a fresh claim for the purposes of para 353 of HC 395, it is not implicit that the respondent has made a decision to refuse a human rights claim. Properly understood, the respondent has done precisely the opposite and has declined to make a decision at all. To the extent that the respondent has embarked upon an examination of the merits of the further submissions, she is not making a decision but doing no more than equipping herself to follow the para 353 process.
SUMMARY: R( ON THE APPLICATION OF WAQAR ) v SECRETARY OF STATE FOR THE HOME DEPARTMENT ( STATUTORY APPEALS/PARAGRAPH 353) IJR (2015) UKUT 00169(IAC):
Following criminal convictions, the Applicant had a deportation order signed on 25th June 2014 subsequent to an unsuccessful appeal against a decision to make a deportation order. The Applicant then made further submissions arguing that his deportation would result in a breach of his protected right to respect for family and private life. He relied, inter alia, upon the birth of two children since the date of the determination of the deportation appeal. The submissions were treated as an application to revoke the deportation order. That application was refused for reasons set out in a decision dated 14th November 2014, supplemented by a further decision on 28th November 2014. In those letters the Secretary of State said that no right of appeal arose because the Applicant’s submissions did not amount to a fresh claim. The Applicant commenced judicial review proceedings.
Relevant Caselaw Considered:
- R (ZA (Nigeria)) v SSHD  QB 722
- R (BA (Nigeria)) v SSHD  1 AC 444
- ZT (Kosovo) v SSHD  1 W.L.R. 348
- R v SSHD, ex parte Onibayo  QB 768
- Cakabay v SSHD (Cakabay No 2)  Imm AR 176,  EWCA Civ 1116
The Applicant’s Arguments:
The Applicant’s contention was that paragraph 353 of the Immigration Rules was now subsumed within the statutory provisions. The right of appeal that is now defined by s82 2002 Act enabled all refused human rights claims to have an appeal, such appeal rights only being limited if the claim is certified under s94 or s96 of the 2002 Act. It was argued that there was no requirement for a “categorisation” step because the statutory framework now provided all the necessary safeguards to prevent repetitious or unmeritorious claims being pursued through the appellate system either within the UK, outside the UK or at all. The Applicant contended that the amendment to s82 resulted in the Secretary of State not having to make a separate immigration decision but she was limited to consideration of whether the removal of the applicant would breach his rights under the ECHR; having made such a claim then statute determined that he is thus entitled to a right of appeal and the Secretary of State retained control over the location from which the applicant may exercise such right of appeal as he may have. The Applicant relied upon R (BA (Nigeria)) v SSHD  1 AC 444 and submitted that ZT (Kosovo) v SSHD  1 W.L.R. 348 and R (ZA (Nigeria)) v SSHD  QB 722 were predicated upon the “old” construction whereby a human rights claim did not give rise to a right of appeal per se but rather the Secretary of State was required to consider whether or not to make an immigration decision which would then attract a right of appeal – limited by s94 or s96 if considered appropriate.
The Secretary of State’s Arguments:
The Secretary of State contended that the 2014 Act has not altered the statutory appealable decision regime but, albeit radically, has significantly reduced the adverse decisions that have a right of appeal. Although the certification process (ss94 and 96) remained available to the Secretary of State that is only where there has been a claim that has been refused. The paragraph 353 process remains in force to enable the categorisation of submissions and it is only if the submissions are categorised as a claim that has been refused, is there an appeal. The Secretary of Stated disputed that the decisions of ZT Kosovo and ZA Nigeria, determined under legislation that has since been amended, support the contention that paragraph 353 is now no longer in force for cases such as the instant case. She contends that the history and purpose of paragraph 353 requires consideration in determining the various appeal rights that have been provided for over the years.
Upper Tribunals Considerations and Conclusions:
The Upper Tribunal stated that Paragraph 353 of the Immigration Rues 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 20th October 2014 and despite there being amendments to the Rules since that date there has been no amendment to paragraph 353. 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.
The current appeal scheme enables an appeal against a decision by the Secretary of State refusing the applicant’s human rights claim. The Upper Tribunal stated that 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 Secretary of State 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 Upper Tribunal emphasized that BA (Nigeria) was concerned with a decision, not whether there had been a decision. ZT (Kosovo) concerned the continuing responsibility of the Secretary of State 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 Secretary of State was not obliged to issue an appealable immigration decision whenever further submissions were made.
The Upper Tribunal further stated that if the Applicant was 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 Upper Tribunal also made it clear that 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.
In the Upper Tribunal’s view, if an applicant is aggrieved by a decision not to categorise submissions as a claim, then 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 Applicant’s claim thus failed.
ANALYSIS; ROBINSON, R( ON THE APPLICATION OF ) v SECRETARY OF STATE FOR THE HOME DEPARTMENT ( PARAGRAPH 353- WAQAR APPLIED) (IJR) (2016) UKUT 133:
Summary of facts:
The case concerned a judicial review claim from a Jamaican national born on 14 May 1991, who had arrived in the UK when he was 7years old. Having arrived in the UK as a visitor, he had thereafter remained unlawful. He committed a number of offences, became subject to deportation proceedings, with a deportation order being issued, however his deportation appeal was dismissed in November 2015. His deportation appeal had been confined to private life issues in light of his length of residence in the UK.
A short letter dated 13 May 2015 had been sent on the Applicant’s behalf to the Home Office requesting that he be granted temporary admission so that he could support his pregnant partner who was imminently due to give birth. The Home Office however took the letter to raise an implied family life argument with his partner and provided a response dated 23 June 2015. For the reasons set out in that letter, the Home Office saw no basis to revisit the deportation decision but did go on to carry out a full assessment of whether what had been said amounted to a fresh claim for the purposes of paragraph 353 of HC 395 but concluded it did not, stating that as the Applicant’s submissions did not create a realistic prospect of success before an Immigration Judge they did not amount to a fresh claim.
When the Applicant’s son was born, he sent further submissions on 28 July 2015 informing the Home Office. By decision dated 31 July 2015, the Home Office refused to accept the further submissions as amounting to a fresh claim.
The issues raised on the Applicant’s behalf:
An issue raised in the judicial review claim was whether further human rights submissions have to meet the threshold set out in paragraph 353 in order to amount to a human rights claim for the purpose of Section 82 of the 2002 Act or will any further human rights submissions be sufficient to amount to a human rights claim for the purpose of Section 82 and therefore generate a right of appeal. It was contended that refusal of a human rights claim and indeed refusal of a protection claim regardless of whether it is a fresh claim or not must give rise to an in-country right of appeal unless certified. It was argued that this was because there is no requirement to be found within Section 82 that the human rights or protection claim be a fresh claim.
Another issue raised was that on the basis of the information before the Home Office, the refusal to accept that the further submissions made amounted to a fresh claim was irrational and so unlawful.
The Applicant relied upon paragraphs 29 and 32 of BA (Nigeria) v Secretary of State for the Home Department  UKSC 7, which also stated 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.
Relevant Caselaw Considered:
- HW v Secretary of State for the Home Department  EWCA Civ 1351.
- R (Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR  UKUT 169 (IAC)
- ZA (Nigeria) v Secretary of State for the Home Department  EWCA Civ 926
- BA (Nigeria) v Secretary of State for the Home Department  UKSC 7– paragraphs 29 and 32
- WM (DRC) v Secretary of State for the Home Department  EWCA Civ 1495
Upper Tribunal’s position:
The Upper Tribunal stated that the first ground could succeed only if they could be persuaded by those representing the Applicant that the reported decision of the Upper Tribunal in R (Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR  UKUT 169 (IAC) was wrongly decided.
Conclusions reached in Waqar have survived challenges:
It was noted by the Upper Tribunal that Section 82 of the 2002 Act has been amended by the 2014 Act and has been replaced by a new Section 82(2) providing for just three types of decision that can give rise to a right of appeal. In its amended form Section 82 provides so far as is relevant for the purposes of the present case that a person may appeal to the Tribunal where the Secretary of State has decided to refuse a human rights claim made by him.
The Upper Tribunal stated that in relation to the above comments in BA(Nigeria), the difficulty facing the Applicant in this case was that the submission founded upon those comments was an argument that had been advanced before the Upper Tribunal previously but had been rejected in Waqar.
It was also stated that the conclusions reached in Waqar have survived challenges similar to those being advanced in Robinson when considered by the Court of Appeal. In refusing permission to appeal on the papers in Waqar, Lord Justice Underhill said that he considered that the appeal had no realistic prospect of success: ZA (Nigeria) 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 previous unsuccessful claim and that if she did so there was no immigration decision within the meaning of Section 82. ZA (Nigeria) adopted a narrow reading of the ratio in BA (Nigeria) and that reading was binding on the court. Nothing in the changes introduced by the 2014 Act undermined that reasoning. If the rejection of a claim under rule 353 did not constitute an immigration decision for the purposes of the old section 82 there was no reason why it should constitute a decision for the purposes of the new rule.
Lord Justice Underhill’s reasoning was specifically approved by Lord Justice Beatson after he had heard argument at an oral renewal of the application for permission to appeal(see: HW v Secretary of State for the Home Department  EWCA Civ 1351). Lord Justice Beatson examined the submission that BA (Nigeria) was authority for the proposition that there was a right of appeal even where the Secretary of State decided that further submissions did not amount to a fresh claim for the purposes of paragraph 353 and explained why that was misconceived. BA (Nigeria) was distinguishable because in that case there was an immigration decision or, more accurately, there were immigration decisions, under the former version of section 82, that being refusal to revoke a deportation order. Thus a right of appeal had arisen and the question was whether the appeal could be brought from within the United Kingdom. The importance of ZA (Nigeria ) was that it was held that BA (Nigeria) only applied where there was an appealable decision so that one was within the statutory framework. It was clearly held in ZA (Nigeria) that the Secretary of State is not required to make a further appealable decision whenever further submissions are made. 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 not to revoke a deportation order generated a right to an in-country appeal unless it was certified under Section 94. Accordingly, it was 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. BA (Nigeria) did not require the Secretary of State to issue an appealable decision whenever further submissions were made. The Secretary of State can decide that it is not a fresh claim and then decide 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.
The Upper Tribunal in Robinson stated at paragraph 24 of their decision that they had no doubt at all that they should follow the approach to Waqar taken by Lord Justices Underhill and Beatson. The Upper Tribunal could not say that Waqar wrongly decided but was in fact confident that it was correctly decided and so would follow it in determining the judicial review application. In any event, the Upper Tribunal was bound by the decision of the Court of Appeal in ZA (Nigeria) and so must accept the narrow reading of the ratio in BA (Nigeria).
The Upper Tribunal in Robinson stated that in the case before them that the Secretary of State had looked at the further submissions but had concluded that they did not amount to a fresh claim and so declined to treat them as a claim at all. That meant that there was no decision taken and so it could not be said in the language of the amended Section 82 that the Secretary of State had decided to refuse the applicant’s human rights claim. The Secretary of State had refused to make a decision because, applying the paragraph 353 test, she had concluded that the further submissions did not amount to a fresh claim so that no decision on the human rights claim was required. To the extent that the Secretary of State embarked upon an examination of the merits of the submissions and explained why the earlier decision was maintained, that was not a decision on a human rights claim but the operation of the process engaged by paragraph 353 of the Immigration Rules. Similarly where the Secretary of State said in both decisions that having fully considered all that had been said there were no grounds on which to revoke the deportation order, that was not, as has been submitted on behalf of the Applicant a decision not to revoke the deportation order but an explanation that there was no need to make such a decision.
The Upper Tribunal stated that paragraph 353 has survived not just the arrival of the certification process with the 2002 Act but the frequent and continual amendments to the legislative framework but which have left paragraph 353 intact plainly indicating that it continues to have a role to play. That in the Upper Tribunal’s judgment was sufficient to dispose of the ground that related to the right of appeal.
The Secretary of State had asked herself the correct questions:
It was out forward on behalf of the Applicant that as a matter of rationality, the Secretary of State should have accepted that a fresh claim had been made out such as to require a fresh decision on the Applicant’s human rights claim. It was properly considered a fresh claim because the previous refusal of his claim under Article 8 of the ECHR was based only on private life whereas the further submissions were concerned with family life, first with his pregnant partner, and then with both her and their newly born son. That meant, that the human rights claim being advanced was of a different nature than previously relied upon and so it was legally incorrect for the Secretary of State to refuse to consider it and to refuse to produce a decision.
The Upper Tribunal referred to the legal tests in play. It was stated where as was the case in Robinson, the Secretary of State does not accept the further representations and so declines for that reason to grant a period of leave she must consider whether they constitute a fresh claim by reference to paragraph 353 of the Immigration Rules. It was noted that Court of Appeal in WM (DRC) v Secretary of State for the Home Department  EWCA Civ 1495 made clear that the Secretary of State must treat further submissions as a fresh claim if there is a realistic prospect of success in an application before an Immigration Judge but no more than that referring to this as a somewhat modest test. The Tribunal’s function is one of review of the decision of the Secretary of State but the Tribunal will intervene if the Secretary of State has not demonstrated the anxious scrutiny demanded of her in reaching her decision or has committed some other public law error such as failing to take into account relevant considerations.
The Upper Tribunal was unable to accept the submission that the two fresh claim decisions were unlawful because the Secretary of State had asked herself the wrong questions, predicating her conclusions impermissibly on her own assessment rather than her assessment of how the claim would be assessed by a hypothetical Immigration Judge. That was because, the two letters were carefully structured so that the Secretary of State first reached her own view and then directed herself in terms at paragraph 353 and specifically addressed the quite separate question, and the correct question, of whether there was a realistic prospect of success before an Immigration Judge. In that respect the approach of the Secretary of State could not be faulted.
It was noted that the second refusal letter stated the Applicant had not provided any details or documentary evidence either to the Home Office or during the appeal process to support his claim that he was in a relationship with his partner or that she was pregnant with his child. The Applicant had not produced a birth certificate of the child showing parentage or any other documentary evidence which confirmed that he was the father of the child. In addition, prior to his detention on 1 July 2015, and the child’s birth on 26 July 2015, the Applicant and his Partner were not living at the same address. Although the birth of the Applicant’s son was a change of circumstances, they did not amount to a fresh claim because they were not significantly different from material which has been previously considered.
Impact of the Applicant’s Past Offending:
It was argued on behalf of the Secretary of State that, the Applicant being a foreign criminal liable to deportation especially in view of the nature and extent of his offending, he faced a formidable obstacle in terms of proportionality. It was noted by the Upper Tribunal that the Judge who dismissed the Applicant’s appeal also stated that he was a recidivist who was of medium risk of reoffending and of medium risk to the public as highlighted in the NOMS Report and was of particular risk to young vulnerable people and young vulnerable women who he had robbed in the past.
The Upper Tribunal noted that as pointed out on behalf of the Secretary of State, in the context of a foreign criminal facing deportation that would not in itself be a sufficient basis to meet the requirements of paragraph 399A of the Immigration Rules and so it could not possibly be enough in itself to demand as a matter of rationality an acceptance that there was a realistic prospect of success before a judge, but there was no more than that to be considered. Therefore, in the Upper Tribunals judgment, it was impossible to see what more could reasonably be expected of the Secretary of State in discharging her duty under Section 55 of the 2009 Act in respect of the welfare or the best interests of the child about whom so little was known.
What Further Counted Against the Appellant:
The Upper Tribunal stated that given the paucity of information before the decision-maker about the family life now being asserted, in their judgment the outcome was inevitably that which resulted.
The asserted relationship with the Applicant’s partner had been entered into relatively recently at a time when, on any view his immigration status was precarious. There was no evidence of prior cohabitation, there was no prospect at all of the Article 8 claim succeeding on the basis of the relationship.
The conclusion that the Applicant did not meet the requirements of 399A or 399B was plainly a rational one and even now there was nothing to identify the very compelling circumstances over and above those required to succeed under those provisions such as to outweigh the public interest in the deportation of a foreign criminal convicted with a history of offending especially as the probation report of June 2014 spoke of the Applicant representing a medium risk of re-offending.
Upper Tribunal’s conclusion:
The Upper Tribunal concluded that the decisions under challenge were plainly rational and lawful ones. It was impossible to see on the evidence now available that the outcome before a Judge of the First-tier Tribunal could be any different.
The application for judicial review was refused.
In light of the fact that Waqar was only decided last year, yet the same arguments have cropped up in the Upper Tribunal again within a short time, it remains to be seen whether Robinson has finally laid to rest the arguments and issues in relation to the continued relevance and applicability of Paragraph 353 of the Immigration Rules.