Amin Sharif Hussein, R (on the application of) v First-Tier Tribunal

Immigration Rules paragraph 353 remains a gateway to an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 following the amendments made by the Immigration Act 2014. It permits the Secretary of State to decide whether rejected further submissions amount to a fresh human rights or protection claim.

If the submissions are rationally treated as not amounting to a fresh claim, they are not a claim whose refusal attracts a statutory appeal. The rule is not confined to certification decisions. The Secretary of State is nevertheless not the final arbiter of the character of her decision; the court may construe the decision letter to determine whether she refused a claim or only declined to treat submissions as a fresh claim.

The applicant, a Somali national whose deportation appeal had been exhausted, made further submissions seeking revocation of a deportation order. The Secretary of State rejected them on 26 June 2015 and declined to treat them as a fresh claim under paragraph 353 of the Immigration Rules.

The First-tier Tribunal held that no exercisable right of appeal arose and treated the attempted appeal as invalid. The applicant sought judicial review of that decision. The central issue was whether, after the changes made by the Immigration Act 2014, paragraph 353 could still prevent further submissions from generating an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

1. The application for judicial review was refused. The Upper Tribunal was bound by R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926. That authority authoritatively confined R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7 to cases in which an appealable immigration decision had already been made.

2. Paragraph 353 continues to determine whether rejected further submissions are to be categorised as a fresh protection or human rights claim. If they are not, the Secretary of State has not refused a claim for the purposes of section 82 and no statutory appeal arises. The rule is therefore a gateway to section 82 appeals, as well as having a role in certification cases.

3. The legislative changes reinforced that conclusion. Parliament retained paragraph 353, amended it to refer to protection claims, amended the existing definition of human rights claim, and left the prospective 2006 amendments uncommenced. Had Parliament intended paragraph 353 to operate only in certification cases, it would reasonably have said so.

4. The sequence in paragraph 353 distinguishes submissions from a claim. A grant of leave following further submissions does not mean that the submissions were treated as a fresh claim. A fresh claim under the paragraph is one which is refused and may then attract an appeal, subject to certification.

5. The Secretary of State is not the sole arbiter of the nature of her decision. The court may construe the decision letter. Properly read, the letter of 26 June 2015 declined to treat the applicant’s submissions as a fresh claim; it did not refuse a human rights or protection claim.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the First-tier Tribunal’s invalidity decision was refused.
• First-tier Tribunal (Immigration and Asylum Chamber): On 6 July 2015 it held that the attempted appeal against the Secretary of State’s paragraph 353 decision disclosed no exercisable right of appeal and was invalid.