Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08188/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 August 2016
On 01 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

Joseph [T]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mackenzie, Counsel for Kesar & Co Solicitors, Bromley
For the Respondent: Mr Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Cameroon born on 30 August 1957. He appealed against the decision of the Respondent dated 5 May 2015 which stated that the Appellant's further representations of 9 April 2015 did not meet the requirements of paragraph 353 of the Immigration Rules and did not amount to a fresh claim. His appeal was heard by First Tier Tribunal Hanes on 25 November 2015. The First-tier Tribunal Judge found that there is no valid appeal on asylum or humanitarian protection or human rights grounds or alternatively if there is a valid appeal pursuant to Article 3 (on health grounds) and/or Article 8 of ECHR it is dismissed on human rights grounds. The First Tier Judge`s decision was promulgated on 14 December 2015.
2. An application for permission to appeal was made and on 19 January 2016 Judge of the First Tier Tribunal Zucker found there to be no error of law in the decision. An application for permission to appeal was made to the Upper Tribunal. Permission to appeal was granted by Upper Tribunal Judge Plimmer on 16 February 2016. Her reasons for finding there to be an arguable error of law are that although R (Waqar) v SSHD (Statutory appeals/paragraph 353) IJR [2015] UKUT 00169 appears to address the point made in the Grounds of Appeal regarding paragraph 353, the issue as to who makes the categorisation decision needs to be further explored.
3. On the day of the hearing Counsel for the Appellant handed to me a judicial review decision between R (on the application of MG) and First Tier Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department IJR [2016] UKUT 00283 (IAC) and the Presenting Officer handed to me written submissions together with that same decision and a judgment by the Honorary Mr Justice Dove sitting as a Judge of the Upper Tribunal and Upper Tribunal Judge Peter Lane in the judicial review between R (on the application of Amin Sharif Hussein) and First Tier Tribunal (IAC) and Secretary of State for the Home Department IJR/11225/2015. That judgment was made on 9 June 2016.
The Hearing
4. Counsel for the Appellant submitted that the argument is the same as the argument in the said case of R (on the application of MG). He submitted that the Appellant in the case of MG did not succeed. The issue being decided was whether further submissions made by an Appellant amount to a fresh claim and whether under paragraph 353 of the Immigration Rules the First Tier Tribunal should decide whether they amount to a fresh claim or the Secretary of State should decide this. In the case of R (on the application of MG) the Upper Tribunal held:
"(1) A decision that further submissions do not amount to a fresh claim under paragraph 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First Tier Tribunal under Section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended by Section 15 of the Immigration Act 2014).
(2) Whilst the First-tier Tribunal must determine whether it has jurisdiction to entertain an appeal, it cannot decide whether a decision that further submissions do not amount to a fresh claim under paragraph 353 was lawful or correct. Such a decision can only be challenged on public law principles in judicial review proceedings."
5. Counsel submitted that at present this is the case law which has to be followed although an application for permission to appeal has been made against that decision.
6. The Presenting Officer submitted that based on Counsel's submissions and the decision in R (on the application of MG) the First Tier Judge's decision in the present case, when he found that there was no valid appeal on asylum or humanitarian protection or human rights grounds before him was correct.
Notice of Decision
7. Based on the judicial review decision between R (on the application of MG) and First Tier Tribunal (Immigration and Asylum Chamber) and Secretary of State for the Home Department IJR [2016] UKUT 283 (IAC) and based on the submissions made at this hearing I find that there is no material error of law in the decision by First Tier Tribunal Judge Hanes promulgated on 14 December 2015 and his decision must stand.

No anonymity direction is made.

Signed Date 1st September 2016

Deputy Upper Tribunal Judge I A M Murray