Tribunal decisions

The decision

IAC-FH-AR-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45899/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 October 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

TAMARA FYFFE-ROBINSON
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Knorr, instructed by Islington Law Centre
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Jamaica. She appealed to a Judge of the First-tier Tribunal against the respondent's decision of 10 November 2014 that further submissions she had made could have been made either before or during her previous appeal against a deportation order made against her on 6 November 2013 or that the application she had made did not meet the test set out at paragraph 353 of HC 395 or that they constituted a fresh human rights claim and as a consequence there was no appealable decision. This decision was endorsed by the First-tier Tribunal Judge, taking into account what had been said by the Supreme Court in BA (Nigeria) [2009] UKSC 7, and following the decision in Waqar [2015] UKUT 00169 (IAC). In effect her conclusion was that the decision was not one "to refuse a human rights claim" under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014.

2. The appellant sought and was granted permission to appeal against this decision. It was said that all grounds might be argued.

3. In her submissions Ms Knorr argued that in essence the issue before the Tribunal came down to whether the decision in Hussain [2016] UKUT 409 (IAC) or that in Sheidu [2016] UKUT 412 (IAC) was correct. The facts of this case were more on a par with those in Hussain. It was a question of whether the decision in BA (Nigeria) defining what a human rights claim was had not been determined by any decision binding on the Upper Tribunal. She sought an adjournment on the basis that permission to appeal the decision in Hussain to the Court of Appeal had been sought.

4. Mr Tufan opposed this application on the basis that there was no decision yet from the Court of Appeal and in the meantime there were the decisions upon which he relied which all went the other way.

5. Ms Knorr placed weight on what had been said in Sheidu and argued that although it was not ideal for cases to sit around for a long time it was such a fundamental matter that a decision was needed one way or another.

6. I ruled that it would not be appropriate to adjourn since it was entirely unclear how long it would take for a decision on the permission application in Hussain to come through, it was also unclear whether that decision would be one to grant permission, it was also unclear what the basis of the challenge was and it was equally unclear to what extent if at all the actual decision reached ultimately if there were one would address the specific issue before me. Submissions proceeded.

7. Ms Knorr argued that in order to understand the appellant's position it was necessary to look at the statutory framework. At the time of BA (Nigeria) this was the old rights of appeal scheme. There had to be an immigration decision for there to be a right of appeal. Also section 113 of the 2002 Act defined what a human rights claim was. That definition was identical to the current definition. Section 92(4) defined whether the right of appeal was in-country or out of country. That was still the case.

8. In the new appeal provisions there was a definition of a human rights claim which is identical except that it added in "or refuse him entry to the United Kingdom" which ensured there would be an appeal where both removal and refusal of leave to enter breached a person's human rights.

9. The question in BA (Nigeria) had been what a human rights claim meant in the context of part 5 of the 2002 Act. It concerned the decision as to whether there was a requirement that the fresh claim test was met for there to be a human rights claim. This was in the context of understanding the situation where the claim was not certified and the Secretary of State did not accept there had been a human rights claim. In essence the question was whether within section 92(4) the Secretary of State had to have accepted it was a human rights claim and that this met the fresh claims test. It was said for the purposes of part 5 and in turn interpreting the human rights claim as set out in section 113 it was irrelevant whether the Secretary of State considered whether there was a claim or not and this was because the statutory scheme as a whole provided for unfounded claims and it was necessary to use the mechanism in the statute if it was not intended that the person should have a claim. So the issue decided in BA (Nigeria) was the meaning of the phrase "human rights claim" and whether it was affected by the Immigration Rules and the Secretary of State's decision on whether a fresh claim had been made or not. It had been held that no fresh claim test was imported into the statute as to whether or not there was a fresh claim. The test was binding if the changes in the Act did not change things. If that was right then the Upper Tribunal decisions, which were not binding, were wrong.

10. At paragraph 2 of BA (Nigeria) could be seen the same test as that which the Tribunal had to decide today, that being whether a human rights claim under section 82 was any human rights claim or only one if the Secretary of State decided it was a fresh claim. At paragraph 14 in BA (Nigeria) it was the Secretary of State's view that that was what had been held in Hussain. It could be seen subsequently at paragraphs 15 and then 29, 32 and 33 that the ability to certify claims remained. The Secretary of State could still do that. It was pretty much a minor provision to paragraph 353 that the Secretary of State should certify if she thought it was a hopeless claim. It was argued that BA (Nigeria) established that before part 5 a human rights claim was to be interpreted without reference to paragraph 353 and the phrase "human rights claim" did not mean different things in different parts of the Act. The amendment proposed had not been put in force with regard to section 113 and the definition of "human rights claim". The ratio of BA (Nigeria) was clear.

11. In Hussain the Upper Tribunal had regarded itself as bound by what was said by the Court of Appeal in ZA (Nigeria). That was a different context but concerned whether the Secretary of State had to make an immigration decision thus giving rise to a right of appeal as required under the old section 82. ZA (Nigeria) said that that was outside whether or not to make an immigration decision so it did not get within part 5 so the Secretary of State was free to apply paragraph 353. BA (Nigeria) was different in that it had decided what a human rights claim was for the purposes of part 5 and that was the issue before the Tribunal today. Therefore the Upper Tribunal in Hussain had misunderstood ZA (Nigeria) and the consequences of the findings in it as it was not concerned with the interpretation of the statute. The issue is that set out at paragraph 1 at page 34 in ZA (Nigeria). The question was not one that could occur any longer under the new section 82 as it did not require the Secretary of State to make immigration decisions giving rise to rights of appeal. The case concerned whether they had to issue a decision and then removal directions which was what a failed asylum seeker would get in order to have a right of appeal. The Immigration Rules told the Secretary of State when she had to do that and that was what had been found in ZA (Nigeria).

12. The point was that the Tribunal in this case was not in BA (Nigeria) territory but already in part 5 territory as it had been amended and the time when a person got a right of appeal was when a human rights claim had been refused. It was necessary to look at the Act to see if there was a right of appeal so therefore the Tribunal was in part 5 territory and not ZA (Nigeria) territory. So unless one changes the meaning of "human rights claim" and there were no good reasons to do so, BA (Nigeria) made it necessary to read in the words and you still had the provisions to deal with repeat claims or they would have to appeal from outside the United Kingdom and therefore the mischief was cured. There was an argument about anomalies as to why a person submitting a fresh claim got a right of appeal but that was what the Act said and there had always been anomalies, for example deportees automatically got a right of appeal because the Act said so, in contrast to human rights claims where there was no deportation order where there was no appeal unless the Secretary of State said that it was a fresh claim and this was a consequence of ZA (Nigeria). The law was clear.

13. Also BA (Nigeria) was relevant on how the scheme had changed, as the definition of a human rights claim defined the right of appeal. It was not longer a question of whether a person had an immigration decision but whether they had made a human rights claim within part 5 of section 113. Paragraph 42 in Hussain was exactly contrary to what was said in BA (Nigeria). Weight was attached to paragraph 353 as still being part of the Immigration Rules after the new section 82 had come into force and there was concern about that in Hussain at paragraph 48. The difficulty was, as had been said, that paragraph 353 had been updated to include protection claims as a successor to section 82 in the definition of various types of claims there, but it did not recognise that as section 32 of the Immigration Act 1971 was clear, the Secretary of State laid down Immigration Rules as to the practice to be followed and the Secretary of State was the author in contrast to Parliament which was the author of section 82. This was an important distinction and it was not contradictory by Parliament as suggested in Hussain. The reality was that the Secretary of State could propose an order to amend section 82 to make paragraph 353 relevant again and amend section 113. Having left it in the Immigration Rules at paragraph 353 as an assessment of her decision-making powers, this could not be used to interpret what the statute meant, and that was what was decided in BA (Nigeria).

14. It was the case that Upper Tribunal decisions were not binding. Ms Knorr referred to Sheidu at paragraphs 6 and 7. It was not possible just to import the paragraph 353 test. It was necessary to look at the words of the statute. This was a rejection of a human rights claim even though the Secretary of State said it was not a human rights claim. It was accepted that the decision letter in the instant case was not in the same format as in Sheidu but it made it clear that it did not just import the paragraph 353 test in. If it was only a claim, if the Secretary of State said it was, then it was wrong. It was unclear whether Sheidu was being appealed so there were concerns about this. As regards disposal, there had been no need for a further hearing as essentially if the Tribunal found that the decision was marred by errors of law then the disposal of the appeal would follow from that.

15. In his submissions Mr Tufan relied on the authorities he had put in. With regard to the ratio of BA (Nigeria) it was a question of when an appeal against a decision refusing to revoke a deportation order could be brought in-country. This concerned section 92(4)(a). The factual context was relevant. Decisions under the Immigration Rules had been made and the respondent had accepted that, at paragraph 14. The issue here was very different. In Hussain the decision not to accept further submissions did not mean there was a section 82 right of appeal. There was not a human rights application refusal in this case but it was not accepted under paragraph 353. The cases put in showed there was no section 82(1)(b) right of appeal. Sheidu, as was clear from paragraph 17 of that decision, had been allowed on the particular circumstances being the contents of the refusal letter. It had not said that Waqar was wrong. It was a decision to refuse a protection and human rights claim and was a case on its own facts. It did not outweigh the earlier decisions. Permission to appeal from the Waqar decision had been refused in HW.

16. Ms Knorr had no points to make by way of reply.

17. I reserved my determination.

18. The decision of the Upper Tribunal in Hussain contains a very full evaluation of the relevant principles in this area of the law. It helpfully sets out relevant extracts from the leading authorities, in particular BA (Nigeria), and ZA (Nigeria), but also refers to what was said by the House of Lords in ZT (Kosovo) [2009] UKHL 6. In ZT it was held that where the appellant had made asylum and human rights claims which had been refused by the Secretary of State and certified under section 94 of the 2002 Act as being clearly unfounded, any new submissions made by him whilst still in the United Kingdom fell to be considered in accordance with the procedures set out in paragraph 353.

19. In BA (Nigeria), in which the leading judgment was given by Lord Hope, it was concluded at paragraph 33 that Rule 353, as presently drafted, had no part to play in the legislative scheme. This was however interpreted by Lord Neuberger MR in ZA (Nigeria) as being plainly inconsistent with the reasoning and conclusions of the House of Lords in ZT (Kosovo). He characterised the decision in BA (Nigeria) as being that Rule 353 had no further part to play for the purposes of section 92(4) once there was an appeal against an immigration decision. BA (Nigeria) had not purported to overrule or depart from the reasoning in ZT (Kosovo) and, for the reasons set out at paragraph 53 of Lord Hope's judgment, it is clear that BA (Nigeria) could not be said to overrule ZT (Kosovo).

20. Lord Neuberger went on to make the point, at paragraph 57, that if the appellant's arguments in ZA (Nigeria) were adopted, then Rule 353 would have had no role to play since the 2002 Act had come into force, and on that basis section 53 of the Borders, Citizenship and Immigration Act 2009 would have been misconceived and pointless legislation, amending as it did section 31A of the Senior Courts Act 1981 to enable transfer of judicial review applications from the High Court to the Upper Tribunal where the application called into question the 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. He said that that point should have been considered and presumably would have been considered if the Supreme Court was deciding in BA (Nigeria) that Rule 353 was a dead letter. He concluded, at paragraph 59, that what was said in BA (Nigeria) was to be read as being confined to cases where there was an appealable immigration decision. Once there was such a decision, the complete code contained in the legislative scheme applied and Rule 353 had no part to play, but Rule 353 still had a part to play, in that the Secretary of State could decide that the further submissions were not a fresh claim in which case one did not enter the territory governed by the complete code of the legislative scheme.

21. This reasoning was, in effect, applied by the Upper Tribunal in Waqar [2015] UKUT 169, noting for example at paragraph 17 that BA (Nigeria) was concerned with a decision not whether there had been a decision, and that BA (Nigeria) was not authority for the proposition that submissions amounted to a claim and that the response to those submissions was a decision within the meaning of part 5 of the 2002 Act.

22. Permission to appeal against that decision was refused by the Court of Appeal, noting for example at paragraph 20 that it was not legitimate to take isolated statements from BA (Nigeria) out of context, and that it was not in issue in that case that there was an appealable decision, only the locus of the appeal. The right to that appeal existed whether or not it was repetitious. BA (Nigeria) was not concerned with whether a right of appeal should arise at all. That was what ZA (Nigeria) was concerned with.

23. Further support for this line of argument if needed is to be found in Robinson [2016] UKUT 133 and in MG [2016] UKUT 283 (IAC).

24. The Upper Tribunal in Hussain was firmly of the view that it was bound by the ratio of ZA (Nigeria) and stated that the present applicant had to fail unless he could demonstrate that the legislative regime as it stood after the amendments made by the 2014 Act, required to be interpreted in a way that changed the function of paragraph 353 of the Rules. The decision in the instant case was made on 10 November 2014 and therefore the post 2014 Act amendments do not apply. I do not propose to rehearse the discussion in Hussain. It is thorough and comprehensive and I am entirely persuaded that it is a proper evaluation of the relevant issues in the case.

25. Nor do I see the position as weakened in any respect by what was said in Sheidu. This expresses doubts rather than a firm disagreement with the earlier authorities, and the appeal was allowed on the basis of the contents and structure of the decision letter in that case. Ms Knorr has accepted, quite rightly, that the decision letter in the instant appeal is not couched in such terms, and, like the decision letter in Hussain, I consider that it is properly to be construed as comprising a decision to refuse the appellant's submissions as a fresh claim.

26. Accordingly, although I am grateful to Ms Knorr for her helpful and thorough submissions, I see no reason to depart from the reasoning in Hussain in this case and as a consequence I conclude that the judge was right to decide that there was no valid appeal before her and there is no error of law in her decision.

No anonymity direction is made.

I have dismissed the appeal and there can be no fee award.

Signed Date

Upper Tribunal Judge Allen