A discourse on Paragraph 353 and the Certification procedure: The Supreme Court on Further Submissions and Rights of Appeal

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Thirty six pages and sixty six paragraphs encapsulate the Supreme Court’s considerations, reasoning and conclusions in Robinson (formerly JR (Jamaica)) v Secretary of State for the Home Department [2019] UKSC 11

Part 5 of the Act Nationality, Immigration and Asylum Act 2002 was substantially amended by the Immigration Act 2014 Act which restructured rights of appeal. Section 82 no longer restricts a right of appeal to an appeal against an “immigration decision” as formerly listed in section 82(2). In particular, there is no longer any right of appeal in respect of a decision to make a deportation order or a refusal to revoke such an order per se. Instead a person may appeal where the Secretary of State has decided to refuse a protection claim or a human rights claim made by that person or has decided to revoke that person’s protection status.

 

Authority is to the effect that if the Secretary of State decides that new representations in relation to some earlier decision (whether of his own or by the tribunal) which is now final and closed do not amount to a fresh claim under paragraph 353, he will reject the representations as matters which do not affect the position of the applicant within the regime of immigration law. In that sort of case, on the assessment of the Secretary of State the representations do not amount to a ‘claim’ by the applicant, so his decision is not a decision ‘to refuse a human rights claim’ (or any other sort of claim) within the scope of section 82(1) of the 2002 Act. No right of appeal arises in relation to his decision that the new representations do not amount to a fresh claim. Such a decision can only be challenged by way of judicial review.

 

The arguments advanced on behalf of the Appellant in Robinson were that the effect of the 2014 amendments to the 2002 Act was that Paragraph 353 no longer applied to the categorisation issue as to whether submissions were a “claim” within section 82 and was now relevant only to certification issues.

 

The submissions on behalf of the Appellant were the assertions that the abrogation of the role played by Paragraph 353 was intended to remove the Secretary of State’s “gatekeeper function” in deciding the prior question as to whether a second or subsequent submission constituted a claim at all: the argument was that a second or subsequent human rights claim is a “human rights claim” for the purpose of the statutory provisions regardless of whether the Secretary of State accepts or refuses to accept that the claim is a fresh claim within Paragraph 353.

 

On this basis, the submission was that any second or subsequent submission which is a “human rights claim” under section 113(1) of the 2002 Act attracts a right of appeal under section 82, notwithstanding that the individual has made a previous claim that removal would breach a relevant obligation, whether the same relevant obligation or a different one, whether on the same basis or a different one, whether with the same or different submissions and evidence, but subject however to the certification provisions in Sections 94 and 96 of the 2002 Act.

 

The Supreme Court’s conclusions however were that Paragraph 353 continues to perform a useful role notwithstanding the machinery introduced by Part 5 of the 2002 Act. The Court’s reasoning was that the features they referred to as applicable, strongly suggested that Paragraph 353 continues to perform an important function.

 

Applicable Immigration Rule:

 

Paragraph 353 of the Immigration Rules provides:

 

“353. When a human rights or protection claim 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:

 

(i) had not already been considered; and

 

(ii) 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”.

 

Statutory Provisions:

 

Part 5 of the 2002 Act was amended with effect from 20 October 2014 in a number of respects by the Immigration Act 2014:

 

Keeling Schedule, Nationality, Immigration and Asylum Act 2002, Part 5 Immigration and Asylum Appeals, and Part 6 Immigration Procedure

Section 82 – Right of appeal to Tribunal:

“(1) A person (‘P’) may appeal to the Tribunal where –

(a) the Secretary of State has decided to refuse a protection claim made by P,

(b) the Secretary of State has decided to refuse a human rights claim made by P, or

(c) the Secretary of State has decided to revoke P’s protection status.

…”

 

Section 84 – Grounds of appeal:

 

“(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought under one or more of the following grounds –

 

(a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;

 

(b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

 

(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

 

(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

 

…”

 

Section 92 – Place from which an appeal may be brought or continued:

 

“(1) This section applies to determine the place from which an appeal under section 82(1) may be brought or continued.

 

(2) In the case of an appeal under section 82(1)(a) (protection claim appeal), the appeal must be brought from outside the United Kingdom if –

 

(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country), or

 

(b) …

 

Otherwise the appeal must be brought from within the United Kingdom.

 

(3) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if –

 

(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country) or section 94B (certification of human rights claims made by persons liable to deportation), or …

 

Otherwise, the appeal must be brought from within the United Kingdom.

 

(4) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was outside the United Kingdom, the appeal must be brought from outside the United Kingdom.

 

…”

 

Section 94 – Appeal from within United Kingdom: unfounded human rights or protection claim:

 

“(1) The Secretary of State may certify a protection claim or a human rights claim as clearly unfounded.”

 

 

Section 96 – Earlier right of appeal:

 

“(1)   A person may not bring an appeal under section 82 against a decision (“the new decision”) if the Secretary of State or an immigration officer certifies—

 

(a)     that the person was notified of a right of appeal under that section against another decision (“the old decision”) (whether or not an appeal was brought and whether or not any appeal brought has been determined),

 

(b)   that the claim or application to which the new decision relates relies on a ground that could have been raised in an appeal against the old decision, and

 

(c)     that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in an appeal against the old decision.

 

(2) A person may not bring an appeal under section 82 if the Secretary of State or an immigration officer certifies—

 

(a)     that the person has received a notice under section 120(2), (b)     that the appeal relies on a ground that should have been, but has not been, raised in a statement made under section 120(2) or (5), and

 

(c)     that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in a statement under section 120(2) or (5).

 

…………………………”

 

Section 113 – Interpretation:

 

The definition of “human rights claim” in section 113 was amended by the 2014 Act and now provides as follows:

 

“‘human rights claim’ means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry to 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).”

 

 

Applicable Home Office Guidance:

 

 

 

Relevant caselaw:

 

Pre-2014 authority:

 

  • R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768

  • Cakabay v Secretary of State for the Home Department (Nos 2 and 3) [1999] Imm AR 176

  • WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; [2007] Imm AR 337

  • ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348

  • (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7; [2010] 1 AC 444

  • R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926; [2011] QB 722

 

Post-2014 authority:

 

  • Waqar v Secretary of State for the Home Department [2015] UKUT 169 (IAC)

  • R (MG) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 283 (IAC)

  • R (Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC); [2017] Imm AR 84

  • Secretary of State for the Home Department v VM (Jamaica) [2017] EWCA Civ 225; [2017] Imm AR 123

 

The Issue in Robinson:

 

The issue on Robinson was this : Where a person has already had a protection claim or a human rights claim refused and there is no pending appeal, do further submissions which rely on protection or human rights grounds have to be accepted by the Secretary of State 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 2002 Act.

 

The appeal therefore concerned the statutory right of appeal against decisions by the Secretary of State to refuse protection claims and human rights claims under Part 5 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) as amended.

 

Summary Background:

 

The Appellant, a Jamaican national who had a number of criminal convictions, became subject to deportation proceedings following which a deportation order was made. Having exhausted his rights of appeal, the Appellant subsequently made further submissions. In 2015, the Secretary of State treated the further representations as an application to revoke the deportation order on the basis that deportation would breach article 8 of the European Convention on Human Rights. It was concluded that deportation would not breach Article 8 and a refusal to revoke the deportation order was made. The conclusion was that his submissions did not amount to a fresh human rights claim under Rule 353 of the Immigration Rules. The Appellant challenged the decision not to accept the further representations as fresh claims by way of judicial review. Two years later, having followed protracted proceedings, in 2017 the appeal came before the Court of Appeal.

 

On 4 May 2017 the Court of Appeal dismissed the Appellant’s appeal and refused permission to appeal to the Supreme Court. The Appellant was granted a stay on removal pending final determination of his appeal. The Supreme Court granted permission to appeal by order dated 10 April 2018.

 

The Court of Appeal’s decision:

 

In the Court of Appeal Jackson LJ, with whom the other members of the court agreed, rejected a submission on behalf of the Appellant that “human rights claim” in section 82(1)(b) of the 2002 Act as amended means any human rights claim and that its meaning is not confined to an original claim or a subsequent claim which constitutes a “fresh claim” within rule 353 of the Immigration Rules.

 

He also rejected a submission that the Supreme Court considered precisely the same question in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7; [2010] 1 AC 444 when construing the phrase “a human rights claim” in section 92(4)(a) of the 2002 Act as it then stood.

 

The decision of the Supreme Court on the meaning of “human rights claim” in BA (Nigeria) did not apply to statutory provisions which determine whether a right of appeal exists at all. In his view, it would be an absurd reading of section 82, in either its previous or current form, to interpret it as permitting an applicant to make the same human rights claim over and over again, each time appealing to the First Tier Tribunal against the rejection of that claim.

 

He concluded that “a human rights claim” in section 82(1)(b) of the 2002 Act must mean an original human rights claim or a fresh human rights claim which falls within rule 353 of the Immigration Rules.

 

The arguments before the Supreme Court:

 

The arguments on behalf of the Appellant were as follows:

 

  • The Onibiyo line of authority – which established that in the case of a second or successive submission it was for the Secretary of State to decide whether this constituted a fresh claim giving rise to a right to appeal – did not survive the decision of the Supreme Court in BA (Nigeria), and that, accordingly, there is no longer any role for rule 353 of the Immigration Rules. It was submitted that the Supreme Court should reject the reading of BA (Nigeria) favoured by Lord Neuberger of Abbotsbury MR in the Court of Appeal in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926; [2011] QB 722.

  • It was further submitted that the amendments to Part 5 of the 2002 Act effected by the 2014 Act abrogate the control mechanism established by the Onibiyo line of authority and rule 353 of the Immigration Rules and that the words “human rights claim” as they appear in section 82(1)(b) of the 2002 Act following amendment by the 2014 Act are to be interpreted without reference to rule 353.

  • On this basis, any second or subsequent submission which is a “human rights claim” under section 113(1) attracts a right of appeal under section 82, notwithstanding that the individual has made a previous claim that removal would breach a relevant obligation, whether the same relevant obligation or a different one, whether on the same basis or a different one, whether with the same or different submissions and evidence, but subject however to the certification provisions in sections 94 and 96.

 

The Secretary of State’s arguments were:

 

  • BA (Nigeria) does not establish that the words “human rights claim” as they appear in Part 5 of the 2002 Act are to be interpreted without reference to the Onibiyo line of authority or rule 353 of the Immigration Rules. The actual decision in BA (Nigeria) 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. It did not determine that the Secretary of State was no longer entitled to decide the prior question as to whether a second or subsequent submission constituted a claim at all. In his support the Secretary of State relied on the analysis of BA (Nigeria) by Lord Neuberger MR in ZA (Nigeria.

  • The amendments to the 2002 Act effected by the 2014 Act have not changed the position. It remains the case that there will only be an asylum or human rights claim to be determined if, in relevant cases, further submissions are considered to amount to a fresh claim.

 

Useful role performed by Paragraph 353 notwithstanding the machinery introduced by Part 5:

 

The Supreme Court in Robinson considered that in principle there is no conflict between Onibiyo and rule 353 on the one hand and the statutory scheme in Part 5 of the 2002 Act on the other.

 

When Onibiyo was decided in 1996 there was in force a system of certification under paragraph 5 of Schedule 2 to the 1993 Act which established special appeal procedures for claims without foundation. The Supreme Court in Robinson did not consider that there was any incompatibility between what “the two systems for excluding repeat claims”. They operate at different stages of the response to a purported renewed claim.

 

BA (Nigeria) establishes that, as the statutory provisions then stood, where the Secretary of State receives further submissions on which he makes an immigration decision within section 82 there will, in the absence of certification, be an in-country right of appeal. It decides that in those circumstances it is not then open to the Secretary of State to rely on the Onibiyo reasoning or rule 353 in order to contend that the submissions did not amount to a claim and that, as a result, there is no need for a decision and no entitlement to a statutory appeal. It is entirely understandable that in such a case there is no room for the operation of rule 353. Onibiyo and rule 353, by contrast, address a prior issue, namely whether there is a claim which requires a decision at all.

 

The Supreme Court in Robinson did not consider that the effect of the machinery introduced by Part 5 of the 2002 Act, in particular the powers of certification under sections 94 and 96, is to render the Onibiyo reasoning and rule 353 redundant. As Lord Neuberger observed in ZA (Nigeria) (at para 24), the issue should not be decided simply by seeing whether sections 94 and 96 can be interpreted so as to cover every application falling within rule 353, as it is equally valid to consider whether they can be construed consistently with rule 353 having an independent effect.

 

The Supreme Court in Robinson considered that Rule 353 continues to perform a useful role notwithstanding the machinery introduced by Part 5 of the 2002 Act for the following reasons:

 

  • Section 94 applies to claims which are clearly unfounded, whether they are original claims or purported renewed claims. By contrast, rule 353 applies only to supplemental submissions which purport to be claims.

  • The effect of certification under section 94 is to limit an appeal to an out of country appeal. Certification under section 96 has the effect that an appeal under section 82(1) may not be brought. The effect of rule 353 is that no right of appeal ever arises.

  • Where it applies rule 353 operates at a prior stage to section 94. In the case of a purported renewed claim there is a legitimate preliminary issue as to whether it constitutes a claim requiring a decision on the merits at all. Rule 353 addresses that issue. Section 94, on the other hand, proceeds on the basis that there is a valid claim which requires consideration on the merits and a decision. It creates a machinery of certification of the claim as clearly unfounded so as to prevent an in-country appeal

  • The fact that section 94 applies to both original and purported renewed claims does not deprive rule 353 of its utility in relation to the latter category. In appropriate cases, rule 353 relieves the Secretary of State from taking a decision on the merits of the application and refusing it. It operates by enabling him to reject the submissions as not constituting a claim requiring decision. Section 94, however, comes into play only when the Secretary of State has considered a claim on its merits and refused it. At that stage, certification operates to block a right to an in-country appeal which would otherwise arise: “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.” (ZA (Nigeria) per Lord Neuberger MR at para 26).

  • Section 96(1) addresses a different aspect of renewed claims from rule 353. Section 96(1) applies where a person seeks to rely on a matter that could have been raised in an earlier appeal against an immigration decision and the Secretary of State or the immigration officer considers that there is no satisfactory reason for the failure to do so. It is, in a sense, the converse of the situation addressed by rule 353.

  • There are features of the regulatory scheme which are difficult to reconcile with an intention on the part of Parliament that provisions in Part 5 of the 2002 Act should provide a comprehensive and exclusive code for dealing with repeat claims and that rule 353 should no longer be effective; when the 2002 Act was enacted there was no attempt to repeal or amend rule 346, the predecessor to rule 353; Parliament has approved subsequent amendments to the Immigration Rules which have not included the deletion of rule 353 which remains in force; following the amendment of the 2002 Act by the 2014 Act, rule 353 was amended so as to ensure that it applies to human rights claims and protection claims (HC 1025). Once again, this is inconsistent with the suggestion that rule 353 had become ineffective; Section 53 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) amended section 31A of the Senior Courts Act 1981 to permit 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 a human rights claim … wholly or partly on the basis that they are not significantly different from material that has previously been considered …” As Lord Neuberger observed in ZA (Nigeria) (at para 19), here Parliament has plainly legislated on the basis that rule 353 is still in force and section 53 of the 2009 Act would have been positively meaningless if rule 353 had no further function.

  • The Supreme Court in Robinson was persuaded that the broad reading of BA (Nigeria) for which the appellant contended was inconsistent with ZT (Kosovo) where the House of Lords held (Lord Hope dissenting) that the Secretary of State had erred in applying section 94(2) of the 2002 Act rather than rule 353 in considering the applicant’s further submissions. By contrast, there was no difficulty in reconciling the two decisions if the ratio decidendi of BA (Nigeria) is merely that rule 353 has no part to play where there is an appealable immigration decision. If the Supreme Court did decide in BA (Nigeria) that rule 353 is entirely redundant following the introduction of Part 5 of the 2002 Act, it must have intended to overrule or to depart from the decision of the House of Lords some nine months earlier in ZT (Kosovo). However, BA (Nigeria) contains no express statement to that effect. Moreover, while an earlier decision may be impliedly overruled, it is extremely improbable that this was the intention here, for reasons summarised by Lord Neuberger in ZA (Nigeria) as follows (at para 53): “… 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.”

  • For these reasons the Supreme Court in Robinson agreed with the Court of Appeal in ZA (Nigeria) that what was said in BA (Nigeria) was limited to cases where there is an appealable decision. As Lord Neuberger explained: “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’.” (ZA (Nigeria) at para 59).

  • For these reasons, the Court in Robinson considered that the Appellant’s primary case was not made out.

 

Supreme Courts’ conclusions:

 

The Supreme Court reasoned and concluded as follows:

 

  • The Court in Robinson stated that in BA (Nigeria) the Supreme Court considered that there was, in each of the cases, a “human rights claim” within section 92(4)(a) and, therefore, an appeal would be an in-country right of appeal, subject to the possibility of certification which did not arise in that case. However, the reason there was an entitlement to appeal there was because the human rights claims had resulted, in each case, in a refusal to revoke a deportation order which was a qualifying immigration decision under section 82(2)(k). It was this which excluded the operation of rule 353. Consequently, the present issue is not the same issue that previously arose for consideration in BA (Nigeria). The issue in the present case, is the prior question of whether there is a claim at all.

  • The Appellant was not assisted by the fact that under the amended section 82 there is no longer a requirement to establish an “immigration decision” within the list previously set out in section 82(2). In fact, the contrary is the case. A decision to refuse to revoke a deportation order was formerly an “immigration decision” under section 82(2)(k) and therefore gave rise to an in-country right of appeal, subject to the possibility of certification, but this is no longer the case. The 2014 amendments limit immigration appeals to circumstances in which there has been a refusal of a protection claim or a human rights claim, or where protection status has been revoked. However, the structure and operation of section 82 remain unchanged. Under the amended section 82(1) a person may appeal to the tribunal where the Secretary of State has decided to refuse a human rights claim made by him, but this does not relieve that person of the burden of establishing that the refusal was in response to a valid claim. The definitions in Part 5 do not address this question and the answer will depend on the application of the Onibiyo line of authority. Onibiyo, Cakabay, ZA (Nigeria) and VM (Jamaica) establish that there will only be a human rights claim to be determined if further submissions are considered to amount to a fresh claim. Rule 353, in turn, is directed at the manner in which a court should approach that prior question. Under the post-2014 provisions it remains the case that if there is no claim, there is no appealable decision.

  • Parliament is normally presumed to legislate in the knowledge of and having regard to relevant judicial decisions. In the present context, the Court of Appeal in ZA (Nigeria) had provided an authoritative explanation of the effect of BA (Nigeria). As Sir James Eadie put it in his submissions, Parliament can therefore be assumed to have legislated in the light of a consistent line of authority which established that a purported human rights claim that did not meet the threshold of a fresh claim under rule 353 was not a claim at all. Had Parliament intended to depart from this approach, it would surely have made express provision to that effect. On the contrary, there is nothing in the amendments made in 2014 which supports the view that Parliament intended to open the door so as to enable repeated claims raising human rights issues to generate multiple appeals.

  • The Supreme Court in Robinson considered that the Court of Appeal was correct to conclude that “a human rights claim” in section 82(1)(b) of the 2002 Act as amended means an original human rights claim or a fresh human rights claim within Paragraph 353. More generally, where a person has already had a protection claim or a human rights claim refused and there is no pending appeal, further submissions which rely on protection or human rights grounds must first be accepted by the Secretary of State 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 2002 Act.

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