Hikmat Waqar, R (on the application of) v Secretary of State for the Home Department

A right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, as amended, arises only where the Secretary of State has made a decision refusing a human rights claim. Further submissions after an earlier claim has been determined do not automatically constitute a new claim or generate an appeal right.

Paragraph 353 of the Immigration Rules remains effective. It supplies the necessary categorisation stage for deciding whether further submissions amount to a claim. If they do not, there is no refusal of a human rights claim and no statutory appeal; the appropriate remedy is judicial review. The transitional order applies the amended statutory scheme to a deportation decision made after 10 November 2014, irrespective of when the person became a foreign criminal.

The applicant, a foreign national offender, challenged the Secretary of State’s treatment of his further representations seeking revocation of a deportation order. He relied on family and private-life circumstances arising after his unsuccessful deportation appeal.

In decisions dated 14 and 28 November 2014, the Secretary of State treated the representations under paragraph 353 of the Immigration Rules, concluded that they were not a fresh claim, and stated that no right of appeal arose. Following removal directions, the applicant sought judicial review. Permission was granted only on the question whether the amended appeal regime meant that every refused human rights claim, unless certified, attracted an appeal and displaced paragraph 353 as a gateway.

The central issue was whether further submissions had first to be categorised as a claim before a statutory appeal right could arise.

1. The judicial-review claim was dismissed. Under section 82 of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, an appeal depends upon a decision refusing a human rights claim. A refusal to revoke a deportation order is no longer itself an appealable decision. The fact that a person makes submissions asserting human-rights grounds does not, without more, establish either a claim or a decision capable of appeal.

2. Where a previous claim has been determined, there is an intermediate categorisation question: whether the further submissions amount to a claim at all. Paragraph 353 of the Immigration Rules remains the mechanism for answering that question. If the submissions are not a fresh claim, the Secretary of State has not refused a human rights claim; no appeal right arises. A challenge to that categorisation decision lies by judicial review.

3. BA (Nigeria) v Secretary of State for the Home Department [2010] 1 AC 444 concerned the consequences of an existing appealable immigration decision. It did not decide that all further submissions necessarily amount to a claim. Its conclusion that paragraph 353 had no part to play once such a decision had been made did not remove the prior categorisation function identified in ZA (Nigeria) v Secretary of State for the Home Department [2011] QB 722.

4. The Immigration Act 2014 (Transitional and Saving Provisions) Order 2014/2928 brought a deportation decision made after 10 November 2014, including a refusal to revoke a deportation order, within the amended scheme. That result did not depend on the date of the applicant’s conviction.

5. Permission to appeal to the Court of Appeal was refused under rule 44 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review was brought against the decisions of 14 and 28 November 2014. Permission was granted on the limited paragraph 353 issue; the claim was dismissed in [2015] UKUT 169 (IAC).

• Earlier statutory proceedings: The applicant’s appeal against the decision to make a deportation order was dismissed by the First-tier Tribunal and then by the Upper Tribunal. The Court of Appeal refused permission to appeal. No citations for those decisions were stated in the judgment.