BA (Nigeria) (FC) v Secretary of State for the Home Department and others

A second or subsequent asylum or human rights claim engages the in-country appeal right under section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002, whether or not the Secretary of State accepts it as a fresh claim under rule 353 of the Immigration Rules.

The statutory controls on repeat claims are sections 94 and 96. Unless the claim is certified under section 94 or the appeal is excluded under section 96, a rejected claim may proceed to an in-country appeal. The 2002 Act forms a complete statutory code for that purpose. Rule 353 cannot impose an additional restriction which Parliament did not enact, although rule 353A prevents removal before further submissions have been considered.

These consolidated appeals concerned two people subject to deportation orders who made further asylum or human rights representations. The Secretary of State refused to revoke the orders. In one case the further representations were not advanced as a fresh claim; in the other they were held not to satisfy rule 353 of the Immigration Rules.

Blake J held that an in-country appeal depended upon the Secretary of State recognising a fresh claim: [2008] EWHC 1140 (Admin); [2008] 4 All ER 798. In PE's case, however, he quashed the fresh-claim decision and remitted it for redetermination. The Court of Appeal decided the common issue in the respondents' favour: [2009] EWCA Civ 119; [2009] 2 WLR 1370.

The issue before the Supreme Court was whether “an asylum claim, or a human rights claim” in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 included every subsequent claim, or only one accepted as fresh under rule 353.

1. By a majority, the Secretary of State's appeals were dismissed. Lord Hope delivered the leading judgment. Lord Scott, Lord Rodger and Lord Brown agreed that the appeals should be dismissed. Lady Hale dissented. The orders of the Court of Appeal were affirmed.

2. The expression “an asylum claim, or a human rights claim” in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 includes a second or subsequent claim even where the Secretary of State has not accepted it as a fresh claim under rule 353. Claims rejected without certification under section 94 or exclusion under section 96 may therefore proceed to an in-country appeal under sections 82 and 92.

3. Per Lord Hope, statutory language must be construed within the scheme of the statute as a whole. Although substantially similar language had received a narrower construction under the earlier legislation in R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768, the statutory context had materially changed. The 2002 Act introduced express and interlocking powers for controlling repeat or abusive claims.

4. Section 94 permits a clearly unfounded asylum or human rights claim to be certified, requiring any appeal to be pursued from abroad. Section 94(9), read with sections 95 and 84(1)(g), nevertheless preserves the ability to rely upon the United Kingdom's international obligations in that appeal. Section 96 removes an appeal where a matter was, or should have been, raised earlier. Importing the rule 353 fresh-claim threshold into section 92(4)(a) would disrupt that scheme and could deny a claimant the statutory protection attached to certification under section 94.

5. The 2002 Act constitutes the complete code for controlling repeat claims. Rule 353, an executive rule, cannot add a restriction omitted from Parliament's scheme and has no part in determining whether section 92(4)(a) permits an in-country appeal. Rule 353A remains effective because it prevents premature removal while further submissions await consideration.

6. Lord Brown, with whose additional observations Lord Scott and Lord Rodger agreed, held that ordinary repeat claims may be certified under section 94 where clearly unfounded. In very few cases will that threshold differ from rule 353's realistic-prospect-of-success test. Sections 94 and 96 divide between them the statutory response to different forms of abuse.

7. Lady Hale would have allowed the appeals. In her view Parliament had re-enacted language already judicially understood to exclude a merely repetitious claim. She considered sections 94 and 96 insufficient to show that Parliament intended to abandon that established meaning.

1. United Kingdom Supreme Court: By a majority, dismissed the Secretary of State's consolidated appeals and affirmed the Court of Appeal's orders: [2009] UKSC 7.
2. Court of Appeal: Decided the common issue concerning the respondents' in-country appeal rights in their favour: [2009] EWCA Civ 119; [2009] 2 WLR 1370.
3. High Court, Administrative Court: Blake J held that an in-country appeal depended upon recognition of a fresh claim under rule 353. In PE's case he quashed the fresh-claim decision and remitted it to the Secretary of State: [2008] EWHC 1140 (Admin); [2008] 4 All ER 798.