BA (Nigeria), R (on the application of) v Secretary of State for the Home Department

A person may appeal from within the United Kingdom against a refusal to revoke a deportation order where a current asylum or human rights claim has the necessary connection with the proposed grounds of appeal. The claim need not have been accepted as a fresh claim.

The courts should not imply an additional fresh-claim requirement into the plain language of section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002. Parliament had enacted specific certification and one-stop mechanisms to control abusive or repetitive claims. A current, uncertified claim therefore attracts an in-country appeal, although a purely historic claim does not.

These conjoined appeals concerned refusals to revoke deportation orders made against BA, a Nigerian national, and PE, a Cameroonian national. Both had previously advanced protection claims. Neither refusal had been certified as clearly unfounded, but the further representations had not yet been accepted as fresh claims.

Blake J, in [2008] EWHC 1140 (Admin), held that an appeal against a refusal to revoke a deportation order could be pursued only from abroad unless it involved a fresh asylum or human rights claim. In PE’s case, he separately quashed the decision that there was no fresh claim and remitted that issue to the Secretary of State.

The central question was whether section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 permitted an in-country appeal where the current protection claim was connected with the refusal but was not a fresh claim.

1. The appeals were allowed. Section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 conferred an in-country right of appeal against the refusals to revoke the deportation orders. The appellants had current asylum or human rights claims connected with the grounds on which revocation was sought. Neither claim had been excluded by certification under sections 94 or 96.
2. Per Sedley LJ, with whom Longmore and Lloyd LJJ agreed, the statutory words did not require a current claim also to satisfy the test for a fresh claim. The appeal provisions were coherent without that implication. Parliament had addressed repetitive or abusive claims through detailed certification, one-stop and appeal provisions. It was therefore unnecessary and inappropriate for the court to restrict the antecedent right of appeal by adding another limitation.
3. R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768 did not justify the proposed implication. That decision filled a gap in the materially different Asylum and Immigration Appeals Act 1993. The later statutory scheme expressly regulated further submissions, abuse and certification. Its context therefore removed the foundation for applying the same gap-filling logic.
4. The uncommenced amendment made by section 12 of the Immigration, Asylum and Nationality Act 2006 would expressly exclude claims which immigration rules required to be disregarded by reference to an earlier claim. Its language had the characteristics of a substantive innovation rather than a declaration of the existing law. The existing provisions had to be construed without treating that amendment as operative.
5. Lloyd LJ added that a claim must be current rather than purely historic. Subject to that requirement, and to any valid statutory certificate, a claim rejected by the Secretary of State remains capable of supporting an in-country appeal whether or not it has been accepted as fresh. Longmore LJ agreed with Sedley LJ and noted, without resting his decision upon it, the apparent anomaly arising from sections 95 and 104(4) if an arguable appeal had to be abandoned upon departure while a certified, clearly unfounded claim could be pursued from abroad.

1. Court of Appeal (Civil Division): Allowed both appeals in [2009] EWCA Civ 119. It held that the connected and uncertified protection claims could support in-country appeals without first being accepted as fresh claims.
2. High Court, Administrative Court: Blake J held in [2008] EWHC 1140 (Admin) that appeals against the refusals to revoke the deportation orders could be exercised only from abroad unless based on fresh claims. In PE’s case, the judge also quashed the decision that his further material did not constitute a fresh asylum or human rights claim and remitted that issue to the Secretary of State.