Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA243892014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On Thursday 5 May 2016
On 17 June 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

N V
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Loughran, Counsel, instructed by Wilson solicitors LLP
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. As this is a protection based claim it is appropriate to continue that anonymity direction.

DECISION AND REASONS

1. The Appellant challenges the decision of First-tier Tribunal Judge Levin promulgated on 9 February 2015. Judge Levin dismissed the Appellant's appeal on a preliminary issue, finding that there was no valid in country right of appeal. Permission to appeal was granted by First-tier Tribunal Judge Zucker on the basis that it was arguable that certification or purported certification was of no effect for the reasons given in the Appellant's grounds. The matter comes before me to decide whether Judge Levin's decision contains a material error of law and, if it does, to either re-determine the appeal or remit it to the First-tier Tribunal for redetermination.
2. The hearing before me proceeded on the basis of legal submissions on the fundamental issue whether there is a valid in country right of appeal in this case. The issue is therefore one of law, applying the relevant statute and case law. As such, little is to be gained from an analysis of Judge Levin's decision. If he is right that there is no valid right of appeal in country in this case, then, even if there were an error in his reasoning, this could not be material. If he is wrong, then since he did not go on to determine the substantive issues in the appeal, the appeal should be remitted for re-hearing before the First-tier Tribunal. Both representatives agreed that this would be the appropriate course. Therefore, although Ms Loughran did make some limited submissions about what she says are errors in Judge Levin's reasoning, I do not need to deal with those.
3. The issue as formulated in discussions at the hearing is as follows. Is the certification contained in the original decision made by the Respondent overtaken by a later human rights claim which is however made prior to the lodging of the appeal?
Factual background
4. As this is an issue of law, I do not need to go into the factual background of the Appellant's case in detail. It is, however, necessary to deal with certain aspects of the Respondent's decision making process and the Appellant's claim(s) in order to deal with the way in which the relevant legal provisions apply.
5. The Appellant is a citizen of Iran. She arrived in the UK on the Eurostar on 14 June 2013 and claimed asylum. Enquiries carried out by the Respondent's officers ascertained that she had previously claimed asylum in Italy. Her case is therefore a so-called "Third Country" case.
6. On 14 August 2013, the Respondent served the Appellant with a decision refusing her leave to enter the UK and giving notice of her removal to Italy ("the First Immigration Decision"). The Appellant was not removed on that occasion as she attempted suicide. Another decision was made on 27 August 2013 again refusing her leave to enter and again directing her removal to Italy ("the Second Immigration Decision"). It is not entirely clear to me why the Respondent made the Second Immigration Decision but nothing turns on that. The First and Second Immigration Decisions both include a certificate under paragraph 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004 ("the 2004 Act") which I set out below in the section dealing with the legislative framework.
7. On 4 July 2013, the Appellant solicitors made a human rights claim (that is to say a claim that her removal to Italy would breach her human rights) ("the First Human Rights Claim"). The First Human Rights Claim was in brief form and simply asserted that removal to Italy would breach the Appellant's human rights under Article 3 ECHR due to the lack of appropriate support for asylum seekers in that country.
8. By letter wrongly dated 8 May 2013 but apparently served on 24 July 2013, the Respondent rejected the Appellant's First Human Rights Claim, finding that there would be no breach of Article 3 ECHR by removal to Italy and certified the First Human Rights Claim under paragraph 5(4) of Schedule 3 to the 2004 Act ("the First Certification Decision"). The Respondent relied in so doing on the Court of Appeal's judgment in EM (Eritrea) & others v SSHD [2012] EWCA Civ 1336 ("EM (Eritrea)"). At that time, there was an application for permission to appeal the Court of Appeal's judgment in that case pending in the Supreme Court.
9. The First Certification Decision preceded in time the First and Second Immigration Decisions. It is clear from the face of the First Certification Decision that what was there under consideration was a human rights claim that removal to Italy would breach the Appellant's human rights by virtue of the conditions in that country. It is also important to note that the certification contained in the First Certification Decision is under paragraph 5(4) of Schedule 3 to the 2004 Act (see in particular [23] to [24] of that letter).
10. On 11 September 2013, the Appellant's solicitors made another human rights claim this time in more detailed form as part of a letter before action ("the Second Human Rights Claim"). By the time of the Second Human Rights Claim, the Supreme Court had granted permission to appeal the Court of Appeal's judgment in EM Eritrea. By letter dated 11 September 2013, the Respondent rejected the Second Human Rights Claim and again certified that claim under paragraph 5(4) of Schedule 3 to the 2004 Act ("the Second Certification Decision").
11. On 12 September 2013, the Appellant lodged a judicial review claim challenging the First and Second Immigration Decisions. A further letter was sent on 3 October 2013 again rejecting the Appellant's human rights claim and certifying it under paragraph 5(4) of Schedule 3 to the 2004 Act ("the Third Certification Decision"). Both the Second and Third Human Rights Claims and the Second and Third Certification Decisions post-date the First and Second Immigration Decisions. The Appellant also challenged the Second and Third Certification Decisions in the judicial review.
12. On 19 February 2014, the Supreme Court handed down judgment in EM (Eritrea) ([2014] UKSC 2) overturning the Court of Appeal's judgment and providing guidance about the correct approach to consideration of human rights claims in Third Country cases. As a result, a consent order was signed on 13 May 2014 providing that the judicial review be withdrawn on the following proviso:-
"UPON the Defendant having withdrawn the decisions dated 11 September and 3 October 2013 on the Claimant's human rights claim and agreeing to make a decision on the Claimant's human rights claim, including consideration of the material submitted by the Claimant in the course of these proceedings and any further material submitted by the Claimant within 28 days of signature of this order"
It is worth noting that the effect of the consent order was to withdraw the Second and Third Certification Decisions. There is no mention in the consent order of the First Certification Decision which does not appear to have been the subject of the judicial review challenge (see [2] of the Appellant's grounds of appeal).
13. This appeal was lodged on 13 June 2014. The appeal was said to be against the First and Second Immigration Decisions.
14. For completeness, I note that the Respondent issued a further letter dated 28 September 2014, in accordance with the consent order dated 13 May 2014, again certifying the Appellant's Second and Third Human Rights Claims under paragraph 5(4) of Schedule 3 to the 2004 Act.
Legislative Framework
15. The right of appeal in this case arises under the appeal provisions prior to the Immigration Act 2014. The right of appeal is therefore generated by an "immigration decision" of a kind set out in section 82(2) Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").
16. It is common ground that the First and Second Immigration Decisions, being a refusal of leave to enter are immigration decisions within section 82(2)(a) of the 2002 Act and the Appellant therefore has a right of appeal. There are however limitations on that right of appeal.
17. Section 89(1) of the 2002 Act provides as follows:-
"(1) A person may not appeal under section 82(1) against refusal of leave to enter the United Kingdom unless -
(a) On his arrival in the United Kingdom he had entry clearance, and
(b) The purpose of entry specified in the entry clearance is the same as that specified in his application for leave to enter.
(2) Subsection (1) does not prevent the bringing of an appeal on any or all of the grounds referred to in section 84(1)(b), (c) and (g)"
18. The grounds under section 84(1) (b), (c) and (g) are that the decision is contrary to the Race Relations Act 1976, the Human Rights Act 1998 or the Refugee Convention. However, there are further limitations in a Third Country case by schedule 3 to the 2004 Act as follows:-
"[paragraph 5]
(3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within the United Kingdom: asylum or human rights) in reliance on -
(a) an asylum claim which asserts that to remove the person to a specified State to which this part applies would breach the United Kingdom's obligations under the Refugee Convention, or
(b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State."
19. As a result of the foregoing, the only ground of appeal available to the Appellant (apart from one of racial discrimination which is not relied upon) is that her human rights would be breached by removal to Italy because of the treatment that she would receive in that country.
20. There is however a limitation also as to the forum of the appeal. Section 92 of the 2002 Act provides as follows:-
"(1) 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.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f), (ha) and (j). "
I pause there to note that a refusal of leave to enter is not one of those provisions and section 92(3) which does provide for an in country right of appeal against a refusal of leave to enter in certain circumstances does not apply in this case. In any event, by paragraph 5(2) of Schedule 3 to the 2004 Act, a person may not bring an immigration appeal relying on section 92(2) or section 92(3) of the 2002 Act in a Third Country case.
21. The Appellant does not dispute that she is not able to appeal on asylum grounds from within the UK and that the First and Second Immigration Decisions give her a right of appeal which, by combination of section 82 and section 92(1) read with paragraph 5 of schedule 3 to the 2004 Act, can only be exercised in general from outside the UK.
22. The central focus of the Appellant's claim to have an in country right of appeal arises from section 92(4)(a) of the 2002 Act (section 92(4)(a)") which provides as follows (so far as relevant):-
"This section also applies to an appeal against an immigration decision if the appellant -
(a) Has made an asylum claim, or a human rights claim, while in the United Kingdom, or
(b) ..."
23. The effect of that section is that a person who "has made" an asylum or human rights claim while in the UK can appeal from within the UK. Claim is defined in section 113 of the 2002 Act ("section 113") as follows (in relation to definition of a "human rights claim"):-
"'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 would be unlawful under section 6 of the Human Rights Act 1998 (c42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights"
24. That is however subject to the Respondent's right to certify such claims, either under section 94 of the 2002 Act ("section 94") or section 96 of the 2002 Act. A certification under section 94 that the claim is "clearly unfounded" has the effect of requiring the person to bring the appeal from outside the UK. A certificate under section 96 is issued by the Respondent where a person should have and could have raised the claim earlier either in an appeal or in response to a section 120 (one stop) notice. The effect of a section 96 certificate is that there is no right of appeal at all. Section 96 has no relevance to this case.
25. The position in Third Country cases is slightly different. The power of certification arises under paragraph 5(4) of Schedule 3 to the 2004 Act rather than section 94 of the 2002 Act. Paragraph 5(4) provides as follows (or did at the time of the First, Second and Third Certification Decisions in this case):-
"(4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.
(5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b)"
26. In cases where a claim has been certified and a further claim is made, the Supreme Court decided (in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6) that paragraph 353 of the Immigration Rules applies so that the further claim is treated as further submissions. That was not the way in which the Second and Third Human Rights Claims were treated in this case and the Respondent does not submit that paragraph 353 should have been applied to those claims. I assume that this arises from the different source of the certification power and the slightly different definition of a "human rights claim" in Schedule 3 to the 2004 Act. Certification however appears to have the same effect.
27. Finally, for completeness, paragraph 5(6) of Schedule 3 to the 2004 Act provides as follows:-
"(6) A person who is outside the United Kingdom may not bring an immigration appeal on any ground that is inconsistent with treating a State to which this Part applies as a place -
(a) Where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
(b) From which a person will not be sent to another State in contravention of his Convention rights, and
(c) From which a person will not be sent to another State otherwise than in accordance with the Refugee Convention."
28. The effect of the foregoing provisions is that in a Third Country case, a person may appeal from within the UK if he/she makes a human rights claim concerning the impact on his/her human rights by removal to the third country which claim is not certified as clearly unfounded. If the human rights claim is certified, the person may judicially review the decision as to certification but may not appeal from within the UK.
The Appellant's grounds
29. The Appellant asserts that she has an in country right of appeal on human rights grounds. The factual and legal premise for this assertion is that the right of appeal arose from the First and Second Immigration Decisions. She says that she "has made" a human rights claim while she is in the UK which has not been certified. The human rights claims on which she relies are the Second and Third Human Rights Claims. The reason she asserts that certification has not taken place is because the Second and Third Certification Decisions were withdrawn by the terms of the consent order dated 13 May 2014.
30. I note that the First Certification Decision was not withdrawn by the consent order. It appears to be the Appellant's contention that the Respondent must accept that the First Certification Decision no longer remains valid as otherwise she would not have made the Second and Third Certification Decisions. The First Certification Decision preceded the First and Second Immigration Decisions. The Second and Third Certification Decisions post-date the First and Second Immigration Decisions. The Appellant submits that the First Certification Decision cannot apply to the Second and Third Human Rights Claims. Thus, she says that she has both an immigration decision (giving rise to an out of country right of appeal) and has made a human rights claim which has not been certified. Those are she says the essential ingredients for an in country right of appeal against the decision to refuse her leave to enter.
31. The Respondent has not issued any immigration decision subsequent to the First and Second Immigration Decisions (at least not prior to the lodging of this appeal; a further decision may have been made following the later certification in September 2014). The First and Second Immigration Decisions on their face give rise only to an out of country right of appeal. The Appellant says that this does not matter. Whether there is a right of appeal and the forum of that right of appeal is governed by statute and is not conferred by the actions of the Respondent. She says that she can waive due notice of a right of appeal and the fact that there is no immigration decision conferring an in country right of appeal is, she says, therefore of no relevance.
32. In the course of discussions at the hearing, I pointed out to Ms Loughran the potential impact of her submissions if she were correct. As she submitted, and I accept, however, even if the effect of the Appellant's arguments is as far reaching as might be the case that cannot undermine her case if that is what the plain words of the statute require. If there is any ambiguity of meaning, however, if the impact of the construction for which she contends has consequences which appear illogical in the context of the statutory scheme, this may suggest that the construction which she advances is incorrect.
Relevant case law
33. At the hearing before me, the representatives drew attention to a number of cases which are potentially relevant to the issue. I also drew the representatives' attention to several other cases which it seemed to me were of potential relevance and I received submissions in relation to those.
34. I can deal quite shortly with some of the cases. The case of BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7 on which Ms Loughran relied is of no relevance (at least insofar as she relies on the Supreme Court's judgment). The issue in the Supreme Court was whether certification or paragraph 353 applies in the case of further submissions made after the exercise of an in country right of appeal in circumstances where the Secretary of State is obliged to make a further immigration decision (there a decision refusing to revoke a deportation order). That much is clear from [14] to [15] of the Supreme Court's judgment and [1] to [2] of the Court of Appeal's judgment there under appeal (see [2009] EWCA Civ 119). It is common ground in this case that paragraph 353 has no application.
35. Equally, it is not disputed that the Appellant can waive her entitlement to notice of a right of appeal by lodging the appeal if by law she has such a right (and the right of appeal is one which she can exercise from within the UK) (see R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354 and Abiyat and others (rights of appeal) Iran [2012] UKUT 314 (IAC); see also BJ (Singh explained) Sri Lanka [2016] UKUT 00184 (IAC)). The issue cannot therefore be determined by the fact that the Respondent has not issued notice of a decision conferring an in-country right of appeal.
36. Ms Loughran relies on the case of R (AM (Somalia)) v Secretary of State for the Home Department [2009] EWCA Civ 114 ("AM (Somalia)"). That is a Third Country case as here and is helpful as providing a very succinct synopsis of how appeal rights and certification operate in the third country context (albeit in the context of earlier statutory provisions) as follows:-
"[5] In short, what was the Dublin Convention and is now known as the Dublin Regulation (EC343/2003) seeks to prevent forum-shopping among EU states by requiring the country of first arrival, if asked to do so, to process an asylum-seeker's claim. Because removal for this purpose is capable in some cases of undercutting individuals' Convention rights, the combined effect of s.11 of the Immigration and Asylum Act 1999 and s.93 of the 2002 Act was to bar in-country appeals once a third country certificate has been issued save where a human rights claim has been made and has not been certified by the Home Secretary as clearly unfounded. Absent such a certificate, s.82 of the 2002 Act gave a right of appeal against removal without requiring the appellant first to leave the United Kingdom. It followed that a "clearly unfounded" certificate was a necessary accompaniment to a third country certificate if an in-country appeal was to be prevented.
[6] The 2004 Act repealed and replaced these provisions, though without altering their substantial effect, from a date which was in due course fixed by statutory instrument as 1 October 2004. The same instrument made transitional provision for the continuance in effect of s.11 certificates "issued" before that date.
37. Ms Loughran apparently relies on this case in support of her submission that a certification decision made after an immigration decision cannot operate to take away the in-country right of appeal generated by the immigration decision. As a general proposition, I accept that submission. As such, it can make no difference that the Respondent in this case has, after the lodging of the appeal, in September 2014, made a further decision certifying the Second and Third Human Rights Claims. However, the case of AM (Somalia) can be distinguished from the present case. Crucially in that case, the original certification decision which preceded the immigration decision under appeal had been declared a nullity. That is because the certification decision preceding the immigration decision had been issued under the wrong statutory provision (see [7] of the judgment). Therefore, it is unsurprising that the Court of Appeal held that there was a valid in country right of appeal.
38. A case which is of greater potential relevance is SS & ors (Ankara Agreement - no in-country right of appeal) Turkey [2006] UKAIT 00074 ("SS (Turkey)"). The main issue in that case was whether the human rights claim had been made to the Secretary of State. That is not in dispute in this case. All of the First, Second and Third Human Rights Claims were made to the Secretary of State. However, what is said by the Tribunal at [72] to [84] of the judgment may be of some relevance to the Appellant's case and I therefore set out that extract in full:-
"[72] Mr Chatwin's second main submission was that human rights claims under s92(4)(a) had in any event been raised by the appellants in the grounds of appeal?That, he said, was sufficient to bring all but the first appellant within the scope of s92(4)(a). For there to have been a human rights claim within the meaning of s92(4)(a), he submitted, the only prerequisite was that a human rights question had been raised at any time prior to the hearing of the appeal or at least by the time of receipt of notice of appeal: a human rights claim did not, he said, need to be made prior to the immigration decision.
[73] In our view this line of argument has some unsatisfactory features. Firstly, it appears to conflate the concept of a human rights claim with the concept of a human rights ground. It also clouds the apparent logical distinction made in Part 5 of the 2002 Act between s92 (whose function is solely to determine whether there is an in-country right of appeal against the s82 decision) and s84 (which is solely concerned with the grounds the appellant may rely upon in any type of appeal, in-country or out-of-country). Furthermore, the logical sequence embodied for the most part in Part 5 of the Act appears to be: (1) claim, (2) immigration decision and (3) appeal/grounds of appeal: see s83, 83(1)(a), s94(2), s96 (and also paragraph 353 of the Immigration Rules?.
[74] However, whilst we think that the drafters of the 2002 Act intended for the most part to employ the logical sequence we have just described, we do not think that they fully completed the job. Here it is important to bear in mind first of all that the previous legislation, in the form of the Immigration and Asylum Act 1999, did provide by s65 that a person could make a "human rights allegation" and that was something which could be made after the decision in the form of an additional statement of grounds: see ss74, 75 of the 1999 Act. Under this Act a human rights claim could take the form of a human rights allegation.
[75] We can find nothing in the 2002 Act that expressly says that it is no longer possible for a human rights claim to be made post-decision in the form of human rights grounds of appeal.
[76] Regard must also be had to s120 of the 2002 Act. Although this is concerned with the requirement to state additional grounds for an application, it clearly contemplates that where an immigration decision within the meaning of s82 has already been taken, the Secretary of State or an immigration officer may by notice in writing require a person to state additional grounds. Subsection (3) states that:
"A statement under subsection (2) need not repeat reasons or grounds set out in - (a) the application mentioned in subsection (1)(a), or (b) an application to which the immigration decision mentioned in subsection (1)(b) relates."
[77] This wording suggests that there is a degree of interchangeability about the concepts of claiming/applying and stating grounds, since it is contemplated here that grounds can be stated either at the application/claim stage or at a post-decision stage.
[78] Then there is s8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Subsection (1) states:
"In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies."
[79] Subsection (5) states:
"This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification (emphasis added)"
[80] It is difficult to see how subsection (5) would have application in an AIT appeal if an asylum or human rights claim could only be made before the person was notified of an immigration decision.
[81] There is also the contents of paragraph 5(7) of the Immigration (Notices) Regulations 2003. Although this arguably deals with the situation of what is to happen where a notice of decision is served which need not comply with requirements, inter alia, to advise of a right of appeal, it nevertheless, allows, at least in respect of a particular sub-set of immigration decisions, for a claim to be made post-decision.
[82] To adopt the view that in all cases a claim had to be made prior to the decision would also conflict with existing case law. As was pointed out in the additional written submission made by the appellants' representatives in response to our concerns about the relevance of the Mehmet Parmak case, the recent starred AIT determination, JM (Rule 62(7): human rights unarguable) Liberia [2006] UKAIT 00009 states at para [33] that:
"The human rights position is different. The Appellant does not claim to have a status: he simply claims that he should not be removed. It is important to appreciate that, in any case in which this issue arises and to which the transitional appeal provisions apply, the Appellant is a person who, by asserting human rights grounds in his notice of appeal or one-stop notice to the Secretary of State, has made a "human rights claim" within the meaning of s113(1) and hence also s92(4) of the 2002 Act. He thus has an in-country right of appeal against the decision to issue removal directions against him under s10 of the 1999 Act as an overstayer if such a removal decision is ever made? For all these reasons, if there are human rights issues to be raised, they should be raised at the moment when removal is threatened, not simply at the moment when it becomes theoretically possible."
[83] This case (which was of course a transitional case) does confirm that a human rights claim could in principle be raised in a notice of appeal. What was being considered in JM was whether a human rights claim which had been made in the course of an appeal against a decision refusing to vary leave could be raised in subsequent proceedings (involving a removal decision). We need say no more about this, since the historic claim argument was not relied on by Mr Chatwin in any of the appeals before us.
[84] We conclude that (subject to a further requirement we shall come to in a moment) a claim can qualify as an asylum or human rights claim under s113 even though made post-decision even if not made until (but no later than) the time of lodging of the notice (and grounds) of appeal. We say no later than because although a human rights claim may be made to the Secretary of State at any time, including after the decision, that claim can have no effect on the validity of an existing appeal. An appeal is either valid or invalid at the point in time when the notice of appeal is served, or it is not. No subsequent human rights claim can affect that."
39. This decision is not binding on me. It has to some extent been overtaken by later case law to which I refer below. In any event, insofar as the Tribunal relied on section 65 of the 1999 Act, I would decline to follow the decision as it seems to me that the appeal scheme which preceded the coming into force of the 2002 Act (which introduced the concept of appeals generated by immigration decisions) is very different to that in force at the time of section 65. Whilst it is true that section 120 of the 2002 Act and section 8 of the 2004 Act both permit of a claim which post-dates an immigration decision, the fact that such a claim can be made to the Secretary of State does not, with respect to the Tribunal, answer the question of whether the making of the claim at that time operates to change the forum of the appeal by reference to section 92(4)(a). The decision in JM (Liberia) was overturned by the Court of Appeal (see [2006] EWCA Civ 1402). In any event, as the Tribunal points out at [83] of SS (Turkey) (above) that case was concerned with the justiciability of a human rights claim in the context of an in-country appeal where removal was not threatened. As such, it is of no relevance in the present context.
40. In the case of ST (s92(4)(a): meaning of "has made") Turkey [2007] UKAIT 00085 ("ST (Turkey)"), the Tribunal had yet again to grapple with the issue of the timing of the human rights claim. In that case, the issue arose (as in SS (Turkey)) in the context of an appeal against a decision refusing leave to enter as a businessman under the 1963 EC Turkish Association Agreement (there referred to as the Ankara Agreement). In ST (Turkey) the Appellant was a failed asylum seeker. He sought to rely on further submissions which he had made on asylum and human rights grounds which were rejected by the Respondent applying paragraph 353 of the Immigration Rules at the same time but in a separate decision to that refusing leave to enter under the Ankara Agreement. He argued that those submissions were a claim for the purposes of section 113 and that therefore the appeal conferred by the immigration decision which was only an out of country right of appeal should proceed in country. The Tribunal dealt with the competing arguments regarding timing as follows:-
"[10] Put broadly, the burden of the appellant's case is that he has an in-country right of appeal because he had an undetermined human rights claim, based on the May 2004 representations, at the time of the present decision: or, precisely, that the present decision is a response to representations in May 2004 that had not previously been dealt with. The respondent's position, as set out in the documents to which we have made reference, is that the appellant has no in-country right of appeal because the representations of May 2004 do not amount to a human rights claim for these purposes. In our judgment, neither of those positions is correct.
[11] We must start with the wording of the Act itself. Looking first at s113, we note that the definition is surprisingly rich. As the Tribunal pointed out in SS & Others (Turkey) [2006] UKAIT 00074, the requirement that the claim be made to the Secretary of State means that if the only claim is in grounds of appeal, the requirements of s113 are met if the appeal was to an Adjudicator before 4 May 2005 because the appeals process was then that an in-country right of appeal had to be lodged with the Secretary of State. A claim made only in grounds of appeal to this Tribunal, however, is not lodged with the Secretary of State and cannot therefore meet the requirements of s113. Further, as has been observed on a number of occasions, there do not appear to be any places formally designated for the purposes of s113: it seems clear, however, that the various addresses that the Secretary of State makes available for those intending to lodge asylum or human rights claims must be considered as designated for these purposes. (The requirement that the claim be to the Secretary of State or at any particular place is removed by the prospective amendments to s113.) In the present appeal there is no doubt that any asylum or human rights claims made by the appellant fall within the definitions of such claims in s113.
[12] We turn then to s92(4)(a). Is the appellant to be treated as a person who "has made an asylum claim, or a human rights claim while in the United Kingdom"? The literal meaning of those words would appear to be absolutely clear. The literal meaning would, however, encompass not only a person whose asylum or human rights claim is the subject of the appeal, but also (1) a person who, having made such a claim, chooses now not to pursue it but to appeal on other grounds; (2) a person who has made such a claim in the past, had it dealt with, and makes it again; (3) a person who, having made such a claim in the past, does not make it again, but raises completely different reasons for being allowed to stay in the United Kingdom, and appeals against a refusal without raising asylum or human rights issues at all; and even (4) a person who makes such a claim, leaves the United Kingdom, returns and repeats this or makes any other claim. It may well be said that a restriction on in-country rights of appeal must have been intended to have an effect narrower than the literal meaning of the words in s92(4)(a) would suggest. Circumstance (4) is a particularly glaring example of the type of case that might be regarded as not justifying a right of appeal from within the United Kingdom.
[13] In SS & Others, the Tribunal, having concluded that, on their true construction, s113(1) and s92(4)(a) attributed an in-country right of appeal to a person making a human rights claim only in a notice of appeal to an Adjudicator, after a refusal of claims made on a completely different basis said [at 91]: "We are bound to say that we have reservations ?Whilst that seems to us a wholly unintended consequence of the 2002 Act, we have applied the law as it seems to us to be."
[14] We must do the same. There is no doubt that s92(4)(a) could have taken a different form. It could have provided that s92 applies to an appeal made on asylum, or human rights grounds by a person in the United Kingdom. It could have provided that the section applied to an appeal against an immigration decision if the appeal related, in whole or in part, to an asylum claim (for the meaning of these words see HH [2007] UKAIT 00036). It could have provided that s92 did not apply to a person who had made no asylum or human rights claims since he last entered the United Kingdom. It does none of these things. In the circumstances, despite the breadth that the literal meaning of the words has, we see little reason to import into them a meaning which would require substantial re-writing, and which would have the effect of restricting an appellant's rights of appeal in a manner not clearly authorised by the Statute."
41. The Tribunal went on to analyse the Secretary of State's arguments in relation to paragraph 353 (the point which subsequently became the central focus in the Supreme Court in BA (Nigeria) - see [34] above) before concluding as follows:-
[18] It does not appear to us that the Secretary of State has established any basis for restricting the meaning of s92(4)(a) to a narrower compass than that of the clear literal meaning of the words used. It follows that a person has, because of that section, an in-country right of an appeal against an immigration decision if he is a person who has, at any time in the past, made an asylum or human rights claim within the meaning of that section whilst in the United Kingdom.
[19] The position put by the appellant emphasises the strength of the appellant's claim to have an in-country right of appeal in the present case, but is, in our judgment unnecessary. He has an in-country right of appeal not because the immigration decision against which he appeals is a response to the further representations, but because he is a person who has made a human rights claim whilst he is in the United Kingdom."
42. ST (Turkey) is of limited relevance because it concerns historic claims ie those which pre-date the immigration decision. Furthermore, the arguments raised in ST (Turkey) were re-considered by Blake J in the cases of Etame v Secretary of State for the Home Department and AIT; Anirah v Secretary of State for the Home Department [2008] EWHC 1140 (Admin) ("Etame and Anirah"). One of the central arguments in that case surrounded the application of paragraph 353 to second or subsequent claims and formed the basis for what became the central issue in the Supreme Court in BA (Nigeria). However, the starting point for the Claimants' argument was whether they had made claims for the purpose of section 113. The factual basis for their argument was the making of further submissions prior to the immigration decision in question (there the decision refusing to revoke the deportation order). The Judge therefore considered the issue of the timing of the claim prior to considering the argument concerning paragraph 353 as follows:-
"Has made a claim"
[31] It is clear that on the literal meaning of the words in s92(4)(a) any historic claim to asylum or human rights protection would generate a right of appeal to be determined before removal where an immigration decision is taken. Mr Husain submits that the literal meaning of the statutory language is to be deployed and he relies on recent Tribunal authority to that effect."
43. Having canvassed the parties' competing submissions on ST (Turkey) and the principles of statutory construction which the Judge considered applied, he concluded as follows:-
"[41] On this first issue I prefer the submissions of the defendant. Parliament has carefully defined the cases where there is a right of appeal; the grounds of an appeal that may be advanced and the circumstances when the right of appeal may be exercised in the United Kingdom prior to removal. It is obviously important that there is an in-country appeal in asylum and human rights claims at least engaging Article 3 ECHR. A claimant with a current well-founded fear of persecution may face irreparable harm on return if his or her claim is dismissed and the appeal can only be exercised from abroad but there is no reason why a purely historic protection claim should require or deserve an in country appeal.
[42] Whilst there may be cases where the process of admission and removal may give rise to two immigration decisions and potentially two occasions for an appeal, this is no indication that in every case Parliament concluded that every subsequent appeal should be heard in country. If two claimants seek to revoke a deportation order purely on the basis of compassionate circumstances personal to them that do not engage a protection claim too it is entirely illogical that they should be treated differently as to whether their appeal should be heard in country by the irrelevant happenstance of whether one of them had made a protection claim in the past that has no bearing on their present predicament or claim to remain.
[43] I have no difficulty in concluding that the consequences of the literal construction of s.92(4)(a) would indeed be absurd and give rise to arbitrary distinctions between individuals similarly placed for all relevant purposes. Parliament must have intended that the in-country right of appeal was to be given only where there was a nexus between the immigration decision formally generating the appeal and the representations or application that the immigration decision was responding to. Such a construction is consistent with the requirements of an effective remedy where an important right is concerned and consistent with the minimum procedural rights the UK is required to afford asylum seekers whether by extrapolation from the binding international obligation of non refoulement reflected in Article 33(1) of the Refugee Convention or the Procedures Directive promulgated by the European Union to which further consideration will be given later in this judgment. Further this construction is not inconsistent with or unduly restrictive of rights of appeal afforded by statute. In the immigration context it is not unusual to find appeal rights exercisable only from abroad. People who have no recognised right to enter or remain are not generally entitled to enter or remain for the purpose of appealing an adverse decision affecting such rights. In particular it would not be surprising that appeals against a refusal to revoke a deportation order would be heard abroad following removal as consideration of such revocation would normally follow after the decision has been implemented and the person removed in accordance with the deportation order."
44. The judgment of Blake J was appealed to the Court of Appeal ([2009] EWCA Civ 119). Permission was granted on the issue in which the Claimants succeeded in the Court of Appeal and the Supreme Court relating to the application of paragraph 353 to second and subsequent claims. However, in relation to the issue concerning the timing of the claim in relation to the immigration decision, permission to appeal was refused. Sedley LJ at [10] of the Court of Appeal's judgment observed as follows in relation to that issue:-
"[10] Blake J, in a full and careful judgment, [2008] EWHC 1140 (Admin) concluded that the first argument advanced by the claimants - that on a purely literal construction of s.92(4)(a), any historic asylum or human rights claim gave an in-country or suspensive right of appeal - failed because it would lead to an inexplicable and arbitrary distinction between individuals who were similarly placed. It followed that, although not spelt out, there had to be a nexus between the immigration decision against which the appeal was directed and the content of the initial claim for protection. Keene LJ refused permission to appeal against this much of the decision, and the application in this regard has not been renewed."
45. The judgment of Blake J in Etame and Anirah is of assistance in relation to the timing issue. As I observe, however, its relevance is somewhat limited because the claim relied upon in that case was an historic one which had been made prior to the immigration decision. The final case to which I make reference is perhaps the most relevant. In R (on the application of) Nirula v First-tier Tribunal (Asylum and Immigration Chamber) & Anor [2011] EWHC 3336 (Admin) and [2012] EWCA Civ 1436 ("Nirula") the issue was whether the Mr Nirula could appeal a decision to remove him on grounds of deception whilst in the UK because he also had an Article 8 claim. In that case, Mr Nirula raised the human rights claim after the immigration decision against which he appealed. However, he made the claim only in the grounds with his notice of appeal and not by way of a claim to the Secretary of State (in accordance with section 113).
46. At first instance ([2011] EWHC 3336 (Admin) the timing issue was dealt with by the Deputy High Court Judge (Mr C M G Ockelton) in the following terms:-
"[21] The issues: 1: "has made"
[22] The first is whether, in the circumstances of this case, the claimant is to be regarded at the relevant time as a person who "has made" a human rights claim within the meaning of section 92(4)(a). That is important because, as his appeal is not against one of the kinds of decision mentioned in s92(4)(a), he will otherwise have no statutory right of appeal while he remains in the United Kingdom.
[23] The position is, as I have indicated, that the claimant made his human rights claim for the first time in his Notice of Appeal, and the question is, broadly speaking, whether that was too late. Mr Malik, on behalf of the claimant, submits that the claimant has, by the ordinary use of language, made a human rights claim, and by the time the Tribunal comes to consider the issue, that claim is in the past. It must be, because it was in the Notice of Appeal.
[24] In response, Mr Dunlop on behalf of the Secretary of State points out that "human rights claim" is defined in section 113 as "made by a person to the Secretary of State in a designated place", and that whatever might be said of the claim made in the grounds of appeal, it was not to the Secretary of State. He refers, amongst other cases, to the decision of the Asylum and Immigration Tribunal in SS (Turkey) v Secretary of State [2006] UKAIT 74.
[25] In response to that, Mr Malik argues that, first, the provisions of section 113 are applicable, as the section itself makes clear, only if no contrary intention appears , and that it may be that a contrary intention appears by the circumstances of a case such as this.
[26] Secondly, he argues that the definition does not work in any event. There has never been a place formally designated by the Secretary of State for the purposes of receiving asylum and human rights claims.
[27] Thirdly, he points out that under the rules of the First-tier Tribunal, Rule 12 provides for the Notice of Appeal, with its grounds, to be forwarded to the Secretary of State on receipt, by the Tribunal. That means, he says, that a claim made in the grounds of appeal is necessarily made to the Secretary of State.
[28] In my judgment, none of these arguments has merit. There is no contrary intention apparent in any section of Part 5 of the Act. Specifically, I see no sign of any contrary intention in section 92. The lack of a specially designated place for an asylum or human rights claim does not mean that there are no places, nor does it mean that an asylum or human rights claim cannot be made within the meaning of the Act, and of section 113 in particular. The fact that a valid appeal is to be passed on by the First-tier Tribunal to the Secretary of State does not mean that the claim is made to the Secretary of State. Nor, incidentally, does it mean that the appeal is made to the Secretary of State. It is made to the Tribunal. That was the conclusion also reached by Silber J in R (Rainford) v Secretary of State [2008] EWHC 2474 (Admin).
[29] But, in any event, Mr Malik's submissions ignore the tense of "has made" in section 92(4)(a). The provision is that a person may appeal from within the United Kingdom only if he "has made" an asylum or human rights claim. It is perfectly clear that the making of the claim - a human rights claim in this case - must precede, at any rate, the Notice of Appeal. The provision makes no sense at all if a right of appeal is granted by appealing. No authority, in my judgment, is needed for that conclusion. It is the simple meaning of the words.
[30] It is worth adding that this was not the issue before this court in R (Jisha) v Secretary of State [2010] EWHC 2043 (Admin) on which Mr Malik relied. That was a decision on the interpretation of paragraph 353 of the Statement of Changes in Immigration Rules, HC 395, which, unlike the appeals provisions of the 2002 Act, is an important fail-safe provision to ensure that human rights and asylum claims are properly considered before a final decision to remove a claimant, which may well be after an unsuccessful appeal. The interpretation of the words of paragraph 353 is therefore likely to be rather wider than is necessitated by the construction of the appeal rights themselves in Part 5 of the Act.
[31] Having said that, in my judgment, the sense of the provision of the words "has made" stretches, if I may so put it, further back than the need to have made a claim before the Notice of Appeal.
[32] The scheme of Part 5 of the 2002 Act is of decisions carrying rights of appeal. That scheme is also implemented by the Regulations made under the Act.
[33] At the hearing, I mentioned Rule 7 of the First-tier Tribunal Rules, which set out the time for appealing to the First-tier Tribunal under the Act??
[34] In Rules 7(2)(a), a specific time limit is fixed for cases in which the person (i) was in the United Kingdom when the decision against which he is appealing was made; and (ii) may not appeal while he is in the United Kingdom by reason of a provision of the 2002 Act. That is obviously apposite to a case such as the claimant's, and appears to indicate a structure in which the rights of appeal derive from the decision itself.
[35] I would naturally be cautious before using delegated legislation as a means of interpreting a statute. But I do not need to. Section 105 is as follows:
'(1) The Secretary of State may make Regulations requiring a person to be given written notice where an immigration decision is taken in respect of him.
(2) The regulations may, in particular, provide that a notice under subsection (1) of a decision against which the person is entitled to appeal under section 82(1) must state-
(a) that there is a right of appeal under that section, and;
(b) how and when that right may be exercised.
(3) The regulations may make provision (which may include presumptions) about service.'
[36] I do not need to go into the Immigration (Notices) Regulations 2003 (SI 2003/658), which are made under that section. What is clear on the face of the Act is that section 105, which is in Part 5, clearly envisages that both whether there is a right of appeal and how and when it can be exercised are matters known at the time when notice of the decision is given. Those provisions in my judgment rule out the possibility of those matters changing after the notice of decision is given.
[37] As I have already remarked, the tense of "has made" in any event prevents the claim being made as late as the Notice of Appeal. But it cannot have been intended that a claim made after the notice of the appealable decision should invalidate the notice, as it would if the claim itself could change the answer to the question how and when the right of appeal may be exercised.
[38] This reading of section 92(4)(a), excluding a right of appeal from within the United Kingdom in circumstances such as the present case, does not mean a prospect of a multiplicity of appeals, as I shall explain later in this judgment. What is does do is to look at the statutory appeals process as a whole, remembering that one (but only one) of its functions is to prevent unjustified stays in the country for the purpose of pursuing unmeritorious appeals.
[39] I should say finally on this issue that Mr Malik, very properly, drew attention to the difference in tense and apparent effect of the provisions in 92(4)(b), but I do not think that that affects the issue. For the same reasons as I have already given, a person who has an in-country right of appeal under that paragraph only has it if, at the time of the decision, he is of the class specified, and claims as specified in that paragraph."
47. The Deputy Judge also referred to the process by which the Secretary of State notifies any change in the forum of the appeal which the Deputy Judge notes appears designed to prevent a multiplicity of appeals:-
"[64] Without a right of appeal against the Secretary of State's decision so far made, the claimant is nevertheless entirely protected by the Secretary of State's policy, to which reference was made by Mr Dunlop in his skeleton argument. Chapter 51 of the Secretary of State's Enforcement Instructions and Guidance provides as follows.
'If asylum or HR is claimed after serving the IS151A part 2, and removal directions are in place then refer to OSCU for advice before suspending the removal directions. Otherwise withdraw the IS151A part 2 and where the applicant will get an in country appeal right serve an IS151B with any refusal of the claim.'
[65] The process set out, perhaps slightly cryptically, in that instruction has the clear effect that a claim made to the Secretary of State after the service of an immigration decision, such as that in this case, will result in the withdrawal of the decision that carries no right of appeal, and if necessary, the making of another decision. But by then, of course, there can be no doubt that the claimant has made a human rights claim, and for that reason the new decision will carry an in-country right of appeal unless certified."
48. The Deputy Judge's decision was upheld by the Court of Appeal in the following passage:-
"Issue (1): "has made" in section 94(2)(a)
[17] The use of the auxiliary perfect tense in the phrase "has made?a human rights claim" strongly implies that the claim must precede any appeal and that must mean before the institution of an appeal rather than the date of hearing of the appeal. The reason why Parliament has chosen those words is, presumably, in order to give the Secretary of State the opportunity to give a decision on any human rights claim before the appeal is determined so that her decision on that question can become part of any appeal. This orderly process will be disrupted if, without any prior notification to the Secretary of State, an appellant can simply put a human rights claim in his notice of appeal.
[18] This consideration is reinforced by the definition of a human rights claim in section 113 as "a claim made by a person to the Secretary of State?" A Notice of Appeal seeking to appeal a decision for removal is not addressed to the Secretary of State but to the First Tier Tribunal.
[19] Mr Malik for Mr Nirula pointed out first that the definition continues "?at a place designated by the Secretary of State" and that no place has ever been designated and secondly that Rule 12 of the First Tier Tribunal rules provides for the forwarding by the Tribunal to the Secretary of State of a Notice of Appeal.
[20] The absence of a designated place does not, however, deprive the rest of the definition of legal content. The claim still has to be made to the Secretary of State. The Secretary of State is not difficult to find.
[21] Nor does the fact the FTT has an obligation to forward any Notice of Appeal to the Secretary of State mean that a claim has been made to the Secretary of State. Even if it could, Mr Nirula would still have to get over the timing point which he cannot do.
[22] It seems that it may be the first time that this question of construction has been considered by this court, but it arose before SIJ Storey, SIJ Grubb and IJ Afako sitting in the Asylum and Immigration Tribunal in SS (Turkey) [2006] UKAIT 00077. They held that before 4th April 2005, when an appeal was effected by service of a Notice of Appeal on the Secretary of State, it was sufficient to make a human rights claim in the Notice of Appeal (they do not appear to have had any argument in relation to the words "has made") but, once the AIT had been created and a Notice of Appeal had to be given by filing it with the Tribunal, it was no longer possible for a human rights claim to be made for the first time in a Notice of Appeal (see paras 87-90). This decision was followed by Silber J in R (Rainford) v Secretary of State [2008] EWHC 2474 (Admin). I would approve those decisions.
[23] These two cases were distinguished in Jisha v SSHD [2010] EWHC 2043 (Admin) in which HH Judge Anthony Thornton QC held that the Secretary of State ought to have considered a human rights claim to be a second human rights claim to which paragraph 353 of the Immigration Rules (about fresh claims) applied. The argument was that the first human rights claim had not been made to the Secretary of State because it had been included in the Notice of Appeal to the tribunal. The judge held that the definition of a "human rights claim" in s.113 of the 2002 Act applied to the words as used in Part 5 of the 2002 Act but was not a definition for the purpose of the Immigration Rules. It seems, moreover, that the first human rights claim had been treated as a human rights claim whatever procedural defects it may have had. In these circumstances a second human rights claim did have to be dealt with as a fresh claim. It can be seen that this authority is too far removed from the present case to be helpful.
[24] Mr Malik submitted that any construction of section 94(2)(a) which required an appeal against removal for deception to be pursued out of country could operate very harshly against an appellant who was compelled to return home in order to pursue his appeal. But that is not a consideration that can change the proper construction of the statute (unless it be suggested, which it is not, that the statutory provision is in some way incompatible with the European Convention of Human Rights). In any event the Secretary of State has the policy referred to in para 64 of Mr Ockelton's judgment which caters for such cases. It was no doubt in pursuance of that policy that the Secretary of State offered on 2nd June 2011 to consider Mr Nirula's Article 8 claim if he provided the evidence on which he relied, an offer which was not accepted by Mr Nirula.
[25] I would therefore uphold the decision of the Deputy Judge in this respect; it is unnecessary to decide whether his further decision (that the claim had to be made even before a notice of decision was given) is correct. That should await decision in a case where it matters."
Discussion
49. Nirula is the closest case in terms of relevance on the timing issue. However, the Court of Appeal did not need to consider the issue which arises in this case. The requirement for a nexus between the human rights claim and immigration decision is also supported however by what is said by Blake J in Etame and Anirah which observation was upheld by the Court of Appeal.
50. Ms Loughran's answer to the "nexus" point is that this is satisfied in this case because the Second and Third Human Rights Claims challenge the removal brought about by the refusal of leave to enter contained in the First and Second Immigration Decisions. That may be right but the nexus point is only one part of the timing issue.
51. In relation to whether a claim can post-date the immigration decision, I gratefully adopt the views of the Deputy Judge in Nirula. I draw attention in particular to what is said at [37] of the judgment in that case. In my view, the case law pointing in the opposite direction fails to consider what is said in section 92(4)(a) in the context of the overall statutory scheme (at least insofar as it existed prior to the Immigration Act 2014 changes). Those cases appear to assume that the only requirement in section 92(4)(a) is that the person making the human rights or asylum claim does so whilst he/she is in the United Kingdom. That may well be the literal construction of that sentence however it fails to consider the section in its statutory context. In my view, the use of the past tense is intended to indicate that the claim has to be made prior to another event. The only obvious event set out in the statutory scheme is the making of the immigration decision under section 82.
52. The point is perhaps even more clearly made by the statute in relation to Third Country cases. That is because paragraph 5(4) of Schedule 3 to the 2004 Act clearly envisages a response to the human rights claim before reliance can be placed on section 92(4)(a). That is because reliance may not be placed on a claim unless it is one which the Secretary of State has not certified. That must by implication require that the Secretary of State be given the opportunity to certify. Ms Loughran's response to that is that the Secretary of State was given the opportunity to certify. That is what led to the Second and Third Certification Decisions. However, that leads me on to a further problem with Ms Loughran's argument.
53. Ms Loughran argues that both the Second and Third Human Rights Claims were made to the Secretary of State and that those were the subject of decisions made by the Secretary of State in the form of the Second and Third Certification Decisions. It is the withdrawal of the Second and Third Certification Decisions by the consent order which Ms Loughran says gives rise to the in-country right of appeal.
54. Ms Loughran also says that the First Certification Decision must be invalid as otherwise the Respondent would not have made the Second and Third Certification Decisions. I reject that submission. The fact that the Respondent responded to the Second and Third Human Rights Claims by the Second and Third Certification Decisions does not render the First Certification Decision invalid. This case can be distinguished from AM (Somalia). As I note at [37] above, in that case, the earlier certification decision had been quashed by the Court as a nullity. Here the First Certification Decision was not even challenged in the judicial review and is clearly not withdrawn by the terms of the consent order.
55. As I note above, the statutory scheme, particularly in relation to Third Country cases, envisages that the Secretary of State will make a decision in response to a claim. The withdrawal of the Second and Third Certification Decisions did not relate only to the certification contained within those decisions; the plain reading of the consent order is that the decisions were withdrawn as a whole. That makes obvious sense since what the Secretary of State was agreeing to do was to reconsider the human rights claim in accordance with the Supreme Court's judgment in EM (Eritrea). The effect of withdrawal of the Second and Third Certification Decisions therefore was to leave before the Respondent undecided the Second and Third Human Rights Claims. It is not until a decision was made in response to those claims that an in-country right of appeal could be generated in the event that the Secretary of State decided not to exercise her power to certify under paragraph 5(4) of Schedule 3 to the 2004 Act. For those reasons, there could be no in-country right of appeal. As it is, the Secretary of State has now decided to certify the Second and Third Human Rights Claims.
56. For the foregoing reasons, there was no in-country right of appeal when the appeal was lodged in this case and Judge Levin was right so too find. There is no material error of law in Judge Levin's decision and I therefore uphold it.
Notice of Decision
I am satisfied that the Decision of the First-tier Tribunal does not contain a material error of law and I uphold it.

Signed Dated 17 June 2016
Upper Tribunal Judge Smith