Robinson (formerly JR (Jamaica)) v Secretary of State for the Home Department

The Supreme Court considered whether further submissions made after an earlier refusal of a protection or human rights claim must first be accepted by the Secretary of State as a fresh claim under rule 353 of the Immigration Rules before a subsequent decision attracts a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended). The court held that rule 353 continues to perform a gatekeeper function: where a person has already had a protection or human rights claim refused and there is no pending appeal, further submissions relying on protection or human rights grounds must be accepted as a fresh claim in accordance with rule 353 if a decision in response is to be a refusal of a claim attracting a right of appeal under section 82.

The court rejected the appellant's submission that the Supreme Court decision in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7 rendered rule 353 redundant. The court read BA (Nigeria) more narrowly: BA limits the role of rule 353 only where there is already an appealable immigration decision; it does not remove the prior categorisation function that rule 353 performs. The court also held that the 2014 amendments to Part 5 of the 2002 Act did not displace the Onibiyo line of authority or rule 353, and that decisions categorising further submissions as not amounting to a fresh claim remain amenable to judicial review rather than appeal.

Background and parties

• The appellant, a Jamaican national who had been subject to deportation proceedings and had previous unsuccessful appeals, made further submissions to the Secretary of State arguing that removal would breach article 8 and later that removal would interfere with his family life following the birth of his British son.
• The Secretary of State rejected those submissions and concluded they did not amount to a fresh human rights claim under rule 353 of the Immigration Rules; removal directions were given. The appellant sought judicial review and appealed through the tribunals and courts to the Supreme Court.

Nature of the application

The appellant sought to challenge the Secretary of State's decisions not to treat further submissions as fresh human rights claims and to obtain the right to appeal to the First-tier Tribunal under Part 5 of the 2002 Act. The Supreme Court was asked to decide whether a decision rejecting further submissions can be treated as a refusal of a human rights or protection claim within section 82(1) absent compliance with rule 353.

Issues framed by the court

• Whether BA (Nigeria) removed the Onibiyo principle and the role of rule 353 so that any further submissions amounting to a "human rights claim" automatically attract a section 82 appeal; and
• Whether the 2014 amendments to Part 5 of the 2002 Act altered the position so that rule 353 no longer operates as a preliminary gatekeeper for repeat submissions.

Court’s reasoning

• The court reviewed the Onibiyo line of authority which established that the Secretary of State performs a prior categorisation role assessing whether further submissions amount to a fresh claim and that such categorisation decisions are for the Secretary of State and are subject to judicial review rather than an appeal on the merits.
• The court interpreted BA (Nigeria) narrowly: BA held that rule 353 does not operate to deny an in-country right of appeal once there is already an appealable immigration decision, but it did not abolish the prior gatekeeper role of rule 353 in deciding whether there is a claim at all.
• The court found no incompatibility between rule 353 and the statutory certification and appeal provisions in Part 5 (sections 94, 96, etc). It observed legislative and judicial developments indicating rule 353 remains in force and that Parliament is presumed to have legislated aware of the relevant case law.
• Accordingly, further submissions after a prior refusal must be accepted as a fresh claim under rule 353 to amount to a human rights or protection claim whose refusal will attract a section 82 right of appeal; otherwise no appealable decision arises and the correct remedy is judicial review of the categorisation decision.

The court dismissed the appellant’s appeal.

The appeal is dismissed. The court held that where a person has already had a protection claim or a human rights claim refused and there is no pending appeal, further submissions that rely on protection or human rights grounds must first be accepted by the Secretary of State as a fresh claim in accordance with rule 353 of the Immigration Rules if a decision in response to those representations is to be a refusal of a claim attracting a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. The Supreme Court read R (BA (Nigeria)) narrowly and concluded BA does not negate the prior categorisation function exercised under Onibiyo and rule 353; categorisation decisions remain for the Secretary of State and are challengeable by judicial review.

Appeal from the Court of Appeal ([2017] EWCA Civ 316) where the appellant's challenge to the Secretary of State's decisions was dismissed. Prior to that the First-tier Tribunal declined jurisdiction; the appellant obtained permission for judicial review from the Upper Tribunal; the Court of Appeal refused permission to appeal to the Supreme Court but a subsequent order dated 10 April 2018 granted permission to appeal to the Supreme Court. Earlier decisions and appeals through the FTT and UT are described in the judgment.