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

A renewed asylum or human rights submission does not create an in-country right of appeal unless the Secretary of State has made an appealable immigration decision. A decision that further submissions do not amount to a fresh claim under paragraph 353 of the Immigration Rules need not itself generate such a decision. The decision may instead be challenged by judicial review on rationality grounds.

Where an appealable immigration decision has been made, a renewed claim can attract an in-country appeal under section 92(4) of the Nationality, Immigration and Asylum Act 2002, subject to certification under sections 94 or 96. The assessment of a fresh claim requires anxious scrutiny of whether the material is significantly different and creates a realistic prospect of success.

These were two applications for judicial review by nationals of Nigeria and the Democratic Republic of the Congo. Each claimant had previously made an unsuccessful asylum claim and later advanced further submissions based principally on Article 8 family or private life rights.

The Secretary of State rejected the submissions as not amounting to fresh claims and made no new appealable immigration decision. The claimants argued, relying principally on BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7, that they had in-country rights of appeal. The central issues were whether an appealable decision was required, how BA (Nigeria) was to be reconciled with ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, and whether the fresh-claim decisions were rational.

1. Appeal rights. The claims failed insofar as they asserted an in-country right of appeal. Section 82 of the Nationality, Immigration and Asylum Act 2002 requires an immigration decision. A rejection of asylum or human rights submissions is not itself such a decision; the relevant refusal, variation, revocation or removal decision is what generates the appeal right.
2. Relationship between the authorities. BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7 was confined to cases where an appealable immigration decision had been made. In that situation, a renewed asylum or human rights claim could attract an in-country appeal under section 92(4), unless certified under section 94(2) or section 96. It did not decide that a refusal to treat further submissions as a fresh claim was itself an appealable immigration decision.
3. Rule 353. Consistently with ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, paragraph 353 remained relevant to deciding whether a renewed submission required a fresh substantive immigration decision. An adverse decision under the rule did not itself generate an appeal. The decision remained reviewable on rationality grounds.
4. Fresh-claim assessment. The Secretary of State had to ask whether the material was significantly different from that previously considered and, if so, whether it created a realistic prospect of success before an Immigration Judge. The assessment required anxious scrutiny. The approach in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, read with ZT (Kosovo), supplied the applicable framework.
5. Article 8. Proportionality required an evaluative balance between family or private life and the public interest in immigration control. No rigid rule governed the assessment. The Secretary of State was entitled to take account of precarious immigration status, the nature and duration of the relationship, the absence of children or other evidence where relevant, and the possibility of return to seek entry clearance. The decisions concerning both claimants were rational and unassailable.
6. Disposition. Each claim was dismissed.

First-instance judicial review proceedings. The judgment records earlier asylum appeals and permission decisions, but no appeal from the present proceedings.