Etame v Secretary of State for the Home Department & Anor

An historic asylum or human rights claim does not, by itself, create an in-country appeal against a later immigration decision. Section 92(4)(a) requires a nexus between the decision generating the appeal and a first or fresh protection claim. A fresh claim is assessed objectively by asking whether the material is significantly different and creates a realistic prospect of success, while the Secretary of State’s assessment remains subject to anxious judicial review. Where fresh material might materially undermine an earlier adverse determination, the decision-maker must address its possible effect on credibility, risk and state protection. An appellant whose claim is not fresh retains an appeal from abroad, but not a suspensive appeal from within the United Kingdom.

These conjoined judicial review claims concerned refusals to revoke deportation orders. Both claimants had previously pursued unsuccessful asylum or human rights claims and later made further representations. They argued that section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 gave them an in-country right of appeal because they had previously made protection claims.

Etame additionally argued that his new evidence concerning sexual violence in Cameroon amounted to a fresh claim under paragraph 353 of the Immigration Rules. Anirah did not contend that his further representations were a fresh claim. The central issues were the meaning of section 92(4)(a) and whether Etame’s material created a realistic prospect of success.

1. Appealable decisions. A refusal to revoke a deportation order is an immigration decision under section 82 and carries a right of appeal. The tribunal was therefore wrong to conclude in Etame’s case that no appealable decision existed.
2. In-country appeal. The words in section 92(4)(a) must be read in the context of the statutory scheme. They do not give an in-country appeal whenever an appellant has made any historic asylum or human rights claim. There must be a nexus between the immigration decision and the protection claim to which it responds. Only a first claim or a fresh claim generates a suspensive in-country appeal.
3. The literal construction would produce absurd and arbitrary results, including different appeal rights for persons otherwise identically situated. The legislative context, explanatory notes and the informed interpretation of repeated statutory language supported the narrower construction. The reasoning in R v SSHD ex p Onibiyo was adopted, including the test whether the new claim is sufficiently different to create a realistic prospect of success.
4. Fresh claim assessment. The Secretary of State must assess objectively whether the new material was not previously considered and, taken with the earlier material, creates a realistic prospect of success. The decision is subject to close supervision and anxious scrutiny. It is not open to the court to substitute its own decision, but the decision-maker must confront material capable of undermining the earlier findings.
5. Etame’s fresh statements, medical evidence and country evidence were coherent, credible and relevant. They might have led a tribunal to accept that he had suffered sexual torture in a state institution. The Secretary of State’s reasons concerning police protection, relocation and discreet behaviour failed to address the central risk and contained an arguable legal misdirection. Her decision was set aside and remitted for reconsideration according to law.
6. Anirah had no in-country appeal merely because he had made an earlier protection claim. He had a right of appeal from abroad. That appeal could consider whether continued deportation was proportionate under Article 8, including changed circumstances, the passage of time and the rejection of the exceptionality test in Huang v SSHD.

These were first-instance judicial review proceedings in the Administrative Court. The court declared that refusals to revoke deportation orders were appealable decisions, but held that neither claimant had an in-country appeal as of right. Etame’s fresh-claim decision was set aside and remitted for reconsideration. Anirah’s appeal was confined to an appeal from abroad.