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

The Supreme Court was asked whether the words "an asylum claim, or a human rights claim" in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 refer only to a first claim or to a later claim only if it has been accepted as a "fresh claim" under rule 353 of the Immigration Rules. The Court held that those words are not to be glossed by rule 353: unless a claim is excluded under the statutory certificates in section 94 (clearly unfounded) or section 96 (matters already, or should have been, raised earlier), a person who has made asylum or human rights representations in the United Kingdom is entitled to pursue an in‑country appeal under sections 82 and 92 and cannot be removed until that appeal is dealt with. The Court emphasised that the 2002 Act forms a coherent statutory code for dealing with repeat claims and that rule 353 (an executive rule) cannot be read into the statute to displace the statutory exclusion mechanisms. Rule 353A, however, remains effective to prevent removal until further submissions have been considered.

Background and facts:

• BA (a Nigerian national) and PE (a Cameroonian national) each faced deportation or removal after criminal convictions and unsuccessful appeals. Both made further in‑country representations against removal. The Secretary of State refused to revoke the deportation orders and declined to treat the further representations as "fresh claims" under rule 353 of the Immigration Rules.
• Both respondents sought judicial review of the directions for removal and asserted an in‑country, suspensive right of appeal under section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002. Blake J heard the cases together, giving relief in part in PE’s case and remitting for reconsideration; the matter reached the Court of Appeal and thence this Court on the Secretary of State’s appeal.

Nature of the claim and relief sought:

• The point for decision was a question of statutory interpretation: whether section 92(4)(a) confers an in‑country, suspensive right of appeal only where the asylum or human rights claim is a first claim or a later claim accepted as "fresh" under rule 353, or whether any in‑country claim made (unless removed from its scope by section 94 or 96 certificates) suffices to bring the right of appeal and its suspensive effect.

Issues framed by the Court:

• How to construe "an asylum claim, or a human rights claim" in section 92(4)(a) of the 2002 Act in its statutory context.
• The relationship between the statutory appeal scheme (sections 82, 84, 92, 94, 95, 96, 113) and the Immigration Rules (notably rules 353 and 353A).
• Whether rule 353 should be read into the meaning of the statutory phrase so as to prevent in‑country appeals where the Secretary of State has not accepted a later claim as "fresh".

Court’s reasoning and conclusion:

• The majority held that the statutory scheme enacted in 2002 provides a complete code for dealing with repeat or abusive claims. Sections 94 and 96 were enacted to permit the Secretary of State or an immigration officer to exclude appeals that are clearly unfounded or that rely on matters that could and should have been raised earlier. There was no need, and no warrant, to import the executive rule 353 into the statutory meaning of "claim."
• Accordingly, where no certificate under section 94 or 96 has been issued, a person who has made asylum or human rights submissions in the United Kingdom is entitled to bring an in‑country appeal under sections 82 and 92, even if the Secretary of State has not accepted the later submissions as a fresh claim under the Immigration Rules. Rule 353A retains its protective effect by preventing removal until the Secretary of State has considered further submissions.
• The appeals by the Secretary of State were dismissed and the Court of Appeal’s orders were affirmed. Lord Hale expressed disagreement but her views did not alter the majority outcome.

Appeal dismissed. The Supreme Court held that the phrase "an asylum claim, or a human rights claim" in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 covers claims made in‑country even if they are second or subsequent representations not accepted by the Secretary of State as "fresh" under rule 353; exclusion from in‑country appeal must be effected by the statutory mechanisms in sections 94 or 96. Rule 353 does not displace the statute, though rule 353A continues to protect against removal until further submissions have been considered.

On appeal from the Court of Appeal [2009] EWCA Civ 119 (reported at [2009] 2 WLR 1370), after earlier permission and hearing in the Administrative Court: BA and PE obtained permission for judicial review before Blake J ([2008] EWHC 1140 (Admin); [2008] 4 All ER 798). The Secretary of State appealed to the Court of Appeal and then to the Supreme Court.