Robinson, R (On the Application Of) v Secretary of State for the Home Department & Anr

For the purposes of section 82 of the Nationality, Immigration and Asylum Act 2002, a human rights claim means an original claim or a fresh claim satisfying paragraph 353 of the Immigration Rules. It does not include a repetitious claim capable of generating successive appeals. The narrower interpretation of BA (Nigeria) adopted in ZA (Nigeria) is correct. That decision concerned the procedure after an appealable immigration decision existed and did not determine whether a right of appeal existed at all. A letter which assesses Article 8 prospects while applying paragraph 353 does not itself create an appealable decision where the conclusion is that no fresh claim exists.

The appellant, a Jamaican citizen and foreign criminal, had been made subject to a deportation order. His appeal against deportation on Article 8 grounds failed before the First-tier Tribunal, and permission to appeal was refused by the Upper Tribunal on 1 May 2015.

After his partner became pregnant and gave birth, the appellant made further submissions seeking revocation of the deportation order. The Secretary of State rejected them under paragraph 353 of the Immigration Rules as not amounting to fresh claims and stated that the decisions were not appealable immigration decisions. The First-tier Tribunal and Upper Tribunal rejected challenges to that approach. The central issue was whether the submissions nevertheless constituted human rights claims under section 82 of the Nationality, Immigration and Asylum Act 2002, or whether the Secretary of State’s letters independently created a right of appeal.

1. Disposition. The appeal was dismissed. The Upper Tribunal was correct to dismiss the judicial review claim and to hold that the appellant had no further right of appeal to the First-tier Tribunal.
2. The amendments to Part 5 of the Nationality, Immigration and Asylum Act 2002 altered the terminology and reduced the list of appealable decisions, but preserved the relevant statutory structure. Paragraph 353 of the Immigration Rules remained operative.
3. The Court followed the approach in ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926. The narrow interpretation of BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7 was correct. BA (Nigeria) concerned section 92(4) where an appealable immigration decision already existed and the issue was whether the appeal should be pursued in the United Kingdom or from overseas. It did not govern statutory provisions determining whether any right of appeal existed.
4. Reading section 82 as permitting repeated appeals based on the same unsuccessful human rights claim would produce an indefinite succession of claims and appeals. The phrase human rights claim in section 82(1)(b) therefore means an original claim or a fresh claim within paragraph 353, not a repetitious claim.
5. The Secretary of State’s letters considered the Article 8 merits because that was necessary to decide whether the new material created a realistic prospect of success under paragraph 353. Their operative conclusion was that the submissions did not amount to fresh claims. The letters also made clear that they were not decisions under section 82. They therefore did not create rights of appeal.

1. Court of Appeal (Civil Division): dismissed the appeal from the Upper Tribunal. [2017] EWCA Civ 316.
2. Upper Tribunal (Immigration and Asylum Chamber): dismissed the judicial review claim following a hearing on 16 February 2016.
3. First-tier Tribunal: held on 10 August 2015 that the appellant had no right of appeal against the Secretary of State’s refusal to treat the further submissions as a fresh claim. The appellant’s earlier Article 8 appeal against deportation had failed, and permission to appeal was refused by the Upper Tribunal on 1 May 2015.