The Secretary of State for the Home Department v Amuda Yusuf Sheidu

Where the Secretary of State substantively decides to refuse a protection claim or human rights claim within section 82 of the Nationality, Immigration and Asylum Act 2002, the decision carries a statutory right of appeal. That result does not depend on the Secretary of State intending to treat the further submissions as a fresh claim under paragraph 353 of the Immigration Rules.

The First-tier Tribunal cannot itself decide whether submissions are a fresh claim. It must, however, decide whether the decision actually made is one specified by section 82. Once an appealable refusal has been made, a subsequent paragraph 353 assessment cannot remove the appeal right.

The respondent had exhausted appeal rights following refusal of an asylum claim and, later, a deportation appeal. He made further submissions asserting risk on return and breaches of articles 2, 3 and 8 of the European Convention on Human Rights.

In a letter headed as a decision to refuse a protection claim and a human rights claim, the Secretary of State rejected the protection and article 8 claims, rejected revocation of the deportation order, and concluded that the submissions were not a fresh claim under paragraph 353 of the Immigration Rules. The letter stated that there was no right of appeal.

The First-tier Tribunal, following R (Waqar) v SSHD, held that it lacked jurisdiction. The issue before the Upper Tribunal was whether the terms of the decision letter nevertheless disclosed an appealable refusal under section 82 of the Nationality, Immigration and Asylum Act 2002.

1. Appeal allowed. The First-tier Tribunal erred in deciding that it had no jurisdiction. The respondent had an outstanding statutory appeal, to be determined by that Tribunal.

2. The tribunal accepted that the First-tier Tribunal has no power to determine whether further submissions amount to a fresh claim under paragraph 353 of the Immigration Rules. It nevertheless must determine whether the decision placed before it falls within section 82 of the Nationality, Immigration and Asylum Act 2002.

3. The decision letter had to be characterised by its substance and terms. Its heading expressly described a decision to refuse a protection claim and human rights claim. Its detailed conclusions, particularly the conclusion that deportation would not breach article 8, were in terms a substantive refusal of a human rights claim.

4. Applying the principle stated in R (BA (Nigeria)) v SSHD and another [2009] UKSC 7, ZT (Kosovo) v SSHD [2009] UKHL 6 and R (ZA (Nigeria)) v SSHD [2010] EWCA Civ 926, once the Secretary of State makes an appealable immigration decision, paragraph 353 has no further role. The later conclusion that the submissions were not a fresh claim could not remove the appeal right already created by the substantive statutory refusal.

5. Waqar did not assist the Secretary of State because, whatever the position where a letter merely rejects submissions as not amounting to a fresh claim, this letter first began with and substantively refused a human rights claim using section 82 language.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal against the First-tier Tribunal’s jurisdiction decision and held that the respondent had an outstanding statutory appeal.
• First-tier Tribunal (Immigration and Asylum Chamber): Held, following R (Waqar) v SSHD, that there was no appealable decision and that it lacked jurisdiction.