Jamar Christoff Robinson, R (on the application of) v The Secretary of State for the Home Department

Further human-rights submissions made after an earlier claim has been determined do not themselves create a right of appeal. Immigration Rules, paragraph 353 remains the gateway: where the Secretary of State rejects the submissions and concludes that they are not a fresh claim, she has declined to make a decision on a human-rights claim rather than refused such a claim.

The assessment of the merits undertaken for paragraph 353 is part of the fresh-claim process. A fresh claim arises only where the new material, taken with earlier material, creates a realistic prospect of success before an Immigration Judge. The Tribunal may intervene only for public-law error, including failure to give anxious scrutiny or to consider relevant matters.

The applicant sought judicial review of decisions refusing to treat his further submissions as fresh claims under paragraph 353 of the Immigration Rules. The submissions relied on an asserted relationship with a partner and, subsequently, the birth of a child. The Secretary of State concluded that the material did not create a realistic prospect of success in an Article 8 claim against deportation.

The applicant also challenged the First-tier Tribunal's refusal to accept that there was a fresh right of appeal. He contended that, after the amendments to section 82 of the Nationality, Immigration and Asylum Act 2002, any rejected human-rights submissions generated an appeal unless certified. The central issues were whether paragraph 353 remained a gateway to an appeal and whether the fresh-claim decisions were irrational.

1. The application for judicial review was refused. Paragraph 353 of the Immigration Rules continued to perform a gateway function after the amendments to section 82 of the Nationality, Immigration and Asylum Act 2002. The Tribunal followed R (Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) [2015] 00169 (IAC).
2. Where further submissions are rejected as not amounting to a fresh claim, the Secretary of State has not implicitly decided to refuse a human-rights claim. She has decided that the submissions do not require a decision on that claim. Her examination of their merits is the necessary paragraph 353 process, not a substantive refusal.
3. BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7 did not assist the applicant. As explained in ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926, BA concerned cases in which an appealable immigration decision had already been made; the issue was the location of the appeal, not whether a right of appeal arose.
4. The unimplemented amendment to section 113 of the 2002 Act did not undermine that conclusion. The Tribunal was bound by ZA and accepted the Court of Appeal's approval of Waqar.
5. The Secretary of State had correctly asked whether the submissions gave a realistic prospect of success before an Immigration Judge. The evidence about the asserted family life was scant. It did not rationally support success under the applicable deportation rules or establish very compelling circumstances. The fresh-claim decisions were therefore lawful.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application refused: [2016] UKUT 133 (IAC).
• First-tier Tribunal: The applicant's appeal against the deportation order was dismissed following a hearing on 17 October 2014, by a decision promulgated on 19 November 2015. The First-tier Tribunal later refused to accept that the further submissions gave rise to a right of appeal.