MG, R (on the application of) v First Tier Tribunal (Immigration and Asylum Chamber)

A decision that further representations are not a fresh claim under paragraph 353 of the Immigration Rules is not a refusal of a protection claim. It therefore creates no appeal to the First-tier Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002.

The First-tier Tribunal must decide whether it has jurisdiction, but the fresh-claim assessment is not a jurisdictional fact for it to redetermine. That assessment remains for the Secretary of State, subject only to judicial review on public-law principles. The Tribunal cannot create appellate jurisdiction by deciding that further representations ought to have been treated as a fresh claim.

The applicant, an Iranian national, had previously been refused asylum after an unsuccessful claim based on Christian practice. Following his baptism, he made further representations which the Secretary of State rejected. She concluded that they were not a fresh claim because they would not lead to a different outcome.

The applicant lodged an appeal to the First-tier Tribunal, contending that the refusal was a refusal of a protection claim within section 82(1)(a) of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal rejected the appeal for want of an appealable decision. The applicant then sought judicial review of that preliminary ruling.

The central issue was whether the First-tier Tribunal could itself determine that the further representations amounted to a fresh claim under paragraph 353 of the Immigration Rules.

1. Application refused. The First-tier Tribunal had no jurisdiction to entertain an appeal. Although its reasons were inadequate, its conclusion was correct.

2. A refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules is not a decision refusing a protection claim for section 82(1)(a) of the Nationality, Immigration and Asylum Act 2002. The statutory right of appeal consequently does not arise.

3. The amendments made by the Immigration Act 2014 did not transfer to the First-tier Tribunal the Secretary of State's responsibility for deciding whether representations are a fresh claim. Parliament was taken to have legislated against the established position explained in ZA (Nigeria), [2011] QB 722. Nothing in the amendments indicated an intention to alter that position; their general purpose was to reduce, rather than expand, the Tribunal's appellate jurisdiction.

4. The fresh-claim question is not a jurisdictional fact for the First-tier Tribunal. It is an evaluative assessment for the Secretary of State, reviewable in judicial review proceedings on public-law grounds. The Tribunal may determine whether an appealable decision exists, but it may not investigate the representations afresh and decide that the Secretary of State ought to have made an appealable decision.

5. The authorities concerning whether a valid application had been made did not assist the applicant. The present case lay on the Ved, [2014] UKUT 150 (IAC), side of the distinction: where the Secretary of State rationally treats representations as not constituting a protection claim, there is no decision refusing such a claim. The lawfulness of her assessment was not challenged in this application. The only available challenge to that assessment was judicial review, not an appeal to the First-tier Tribunal.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the First-tier Tribunal's preliminary ruling was refused. The Upper Tribunal held that no statutory appeal lay.

• First-tier Tribunal (Immigration and Asylum Chamber): Rejected the applicant's notice of appeal because no appealable decision had been issued. Its reasons were insufficient, but its conclusion was upheld.