ZA (Nigeria) & Anor, R (on the application of) v Secretary of State for the Home Department

Further submissions made after the final rejection of an asylum or human rights claim do not necessarily require a new, appealable immigration decision. Under rule 353 of the Immigration Rules, the Secretary of State may determine that submissions which are not significantly different from previously considered material do not constitute a fresh claim.

Rule 353 remains a lawful gatekeeping mechanism alongside Part 5 of the Nationality Immigration and Asylum Act 2002. Once the Secretary of State treats the submissions as a claim and makes an appealable immigration decision, however, the statutory appeals code applies and rule 353 has no further part to play.

Two unsuccessful immigration claimants made further submissions based principally on article 8 of the European Convention on Human Rights. The Secretary of State rejected the submissions under rule 353 of the Immigration Rules, treating them as repetitions of previously rejected claims rather than fresh claims. She therefore made no new immigration decision attracting a statutory appeal.

The Divisional Court of the Administrative Court held in [2010] EWHC 718 (Admin) that the Secretary of State was entitled to proceed in that way. On appeal, the claimants argued that Part 5 of the Nationality Immigration and Asylum Act 2002 constituted a complete code which had displaced rule 353. The central issue was whether rule 353 could still prevent repetitive further submissions from entering the statutory appeals regime.

1. The appeals were dismissed unanimously. Rule 353 of the Immigration Rules remained available where further submissions were made after the relevant claim and appeal had concluded. The Secretary of State could determine that submissions which merely repeated previously rejected material were not a fresh claim. In that event she need not decide the underlying request for immigration relief, and no appealable immigration decision arose under section 82 of the Nationality Immigration and Asylum Act 2002.

2. Rule 353 and sections 94 and 96 of the 2002 Act occupied different fields. Section 94(2) concerned an original or renewed claim which the Secretary of State considered on its merits and refused as clearly unfounded. Rule 353 instead operated as a gatekeeper, preventing repetitive submissions from being treated as a claim at all. Section 96(1) concerned points which could and should have been raised earlier, whereas rule 353 concerned points which had already been raised and rejected.

3. The decision in ZT (Kosovo) v Home Secretary [2009] UKHL 6 supported the continuing operation of rule 353 after the conclusion of an appeal. The Supreme Court's later decision in BA (Nigeria) v Home Secretary [2009] UKSC 7 did not impliedly overrule that authority.

4. BA (Nigeria) was confined to cases in which the Secretary of State had already made an appealable immigration decision. Once such a decision exists, the statutory scheme is a complete code and rule 353 cannot remove the resulting appeal rights. Before that point, the Secretary of State may use rule 353 to determine whether further submissions amount to a fresh claim.

5. The continued presence of rule 353 and Parliament's subsequent legislation on the footing that it remained effective supported that construction. Lord Neuberger MR gave the judgment. Laws and Sullivan LJJ agreed.

1. Court of Appeal (Civil Division): The appeals were dismissed unanimously. The court upheld the conclusion that rule 353 of the Immigration Rules remained available where no new appealable immigration decision had been made: [2010] EWCA Civ 926.
2. High Court, Administrative Court (Divisional Court): The court held that the Secretary of State could refrain from making an appealable immigration decision where she reasonably concluded that further submissions merely repeated a claim whose rejection had already been unsuccessfully appealed: [2010] EWHC 718 (Admin).