Statutory right of appeal against decisions by the Secretary of State for the Home Department to refuse protection claims and human rights claims under Part 5 of the 2002 Act. Where a person has already had a human rights claim refused and there is no pending appeal, do further submissions that rely on human rights grounds have to be accepted by the Secretary of State as a fresh claim in accordance with rule 353 if a decision in response to those representations is to attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’)?
Held: The appeal failed. BA (Nigeria) had did not overrule the decision in Onibiyo. BA (Nigeria) was limited to cases where the further submissions have been rejected and there was an appealable decision.
The appellant submitted that the amendments to the 2002 Act effected by the Immigration Act 2014 fundamentally changed the operation of the statutory scheme, with the result that rule 353 no longer applies. That argument was rejected.
Judges:
Lady Hale, President, Lord Wilson, Lady Black, Lord Lloyd-Jones, Lady Arden
Citations:
[2019] UKSC 11, [2019] Imm AR 877, [2019] 2 WLR 897, [2019] 3 All ER 741, [2019] INLR 452, [2020] AC 942, UKSC 2017/0211
Links:
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 Nov 15 am Video, SC 2018 Nov 14 pm Video
Statutes:
Nationality, Immigration and Asylum Act 2002
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Secretary of State for the Home Department Ex Parte Onibiyo CA 28-Mar-1996
More than one asylum claim may be made, but they must be sufficiently different to justify a second claim. The court considered when an application could be treated as having been finally determined and when it was necessary for the Secretary of . .
Appeal from – Robinson, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 4-May-2017
Appeal by a foreign criminal asylum claimant against a decision that his additional submissions were not ‘fresh claims’ and that he had no right to a second appeal before the First-tier Tribunal. . .
Cited – Sheffield City Council v Oliver CA 4-Apr-2017
The issue in this appeal is whether, when quantifying a service charge payable by a lessee under a long lease of residential property, credit must be given by the lessor in respect of a third party contribution towards the cost of carrying out . .
Cited – Cakabay v Secretary of State for Home Department CA 30-Jun-1998
. .
Cited – WM (DRC) v Secretary of State for the Home Department CA 9-Nov-2006
The court considered the proper role of the Secretary of state and of the court when failed asylum seekers produced new material arguing that it was a fresh claim. Buxton LJ said: ‘has the Secretary of State asked himself the correct question? The . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – Hussein, Regina (on The Application of) v First-Tier Tribunal (Para 353: Present Scope and Effect)(IJR) UTIAC 8-Aug-2016
UTIAC (1) Lord Neuberger’s judgment in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 is an authoritative pronouncement on the scope of the Supreme Court’s judgments in R (BA . .
Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – MG, Regina (on The Application of) v First-Tier Tribunal (Immigration and Asylum Chamber) (‘Fresh Claim’; Para 353: No Appeal) (IJR) UTIAC 17-May-2016
UTIAC 1. A decision that further submissions do not amount to a ‘fresh claim’ under para 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 . .
Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – Waqar, Regina (on The Application of) v Secretary of State for The Home Department (Statutory Appeals/Paragraph 353) ( IJR) UTIAC 25-Mar-2015
UTIAC 1. The current statutory appeal regime requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal.
2. Where a claim has already been determined, . .
Cited – ZA (Nigeria) and SM (Congo), Regina (on The Application of) v Secretary of State for The Home Department CA 30-Jul-2010
The court was asked whether, as the Administrative Court decided, the Secretary of State was entitled to refrain from making an appealable immigration decision in response to an asylum claim or a human rights claim which he reasonably concluded was . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights
Updated: 28 January 2022; Ref: scu.634514