S & Ors, R (on the application of) v First-Tier Tribunal (IAC)

Under section 83 of the Nationality Immigration and Asylum Act 2002, a right of appeal arises where an asylum claim has been rejected and the claimant is later granted leave to enter or remain exceeding one year, including leave granted indefinitely. The grant of leave triggers the right of appeal but is not the decision under appeal, and the grant need not coincide with the asylum refusal.

Further representations or an asserted fresh asylum claim do not extinguish the effect of the earlier refusal. The right arises from the statutory fact situation and cannot be withheld or created by administrative practice. A previous appeal under section 82 does not, without more, bar a later section 83 status appeal.

Three claimants had previously made asylum claims which were refused. Their claims were either rejected with no leave or with less than one year’s leave. They later made further representations and were granted indefinite leave to remain outside the Immigration Rules. The Secretary of State did not determine the further asylum representations, and the claimants sought to appeal against the earlier asylum refusals under section 83 of the Nationality Immigration and Asylum Act 2002.

Immigration judges held that no exercisable right of appeal existed. In two cases, the claimants had also previously exercised rights of appeal under section 82. The central issue was whether the later grant of indefinite leave to remain generated a section 83 appeal against the earlier asylum refusal.

1. Applications granted. Permission was granted in the cases of D and W, and the claims in all three cases succeeded.
2. Section 83 does not require the grant of leave exceeding one year to occur at the same time as the rejection of the asylum claim. Rule 7(3) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 expressly contemplates leave being granted after the asylum refusal, with time for appealing running from the later grant. Paragraph 4(2) of the Immigration (Notices) Regulations 2003 proceeds on the same basis.
3. The later grant of indefinite leave to remain is the trigger for the appeal, but the appeal is against the rejection of the asylum claim. It is not an appeal against the grant of indefinite leave. The right arises from the statutory facts and is not granted by the Secretary of State.
4. Further representations, or an assertion that a fresh asylum claim has arisen, do not blot out the earlier asylum refusal. The court could not construe section 83 by reference to the Secretary of State’s administrative practice of granting indefinite leave while leaving further representations undecided. That practice could otherwise deprive a claimant of an appeal.
5. The authorities relied on by the interested party did not require a different result. R(Omondi) v SSHD concerned unrelated historic leave and was distinguishable. R(Etame) v SSHD concerned section 82 and the venue of an appeal, not the existence of a section 83 appeal. Saad & Ors v SSHD accepted that the question whether a person is a refugee could, in an appropriate case, be decided by a court or tribunal.
6. A previous section 82 appeal by D and W did not bar the section 83 appeals. Section 96 contains restrictions on repetitious section 82 appeals, but no equivalent restriction applies to section 83. The safeguards in Devaseelan, approved and affirmed in LD (Algeria), prevent a second tribunal from treating the matter as an unrestricted second bite of the cherry.
7. Recourse to the legislative history was refused. The statutory language was not ambiguous for the purposes of Pepper v Hart, and the ministerial statements did not clearly support the Secretary of State’s construction.

This was a first-instance judicial review of decisions by immigration judges of the First-tier Tribunal (Immigration and Asylum Chamber). The court granted permission in D and W and granted all three substantive applications.