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

Where a protection or human rights claim has been refused and no appeal remains pending, further submissions do not automatically generate another statutory appeal. The Secretary of State must first accept them as a fresh claim under rule 353 of the Immigration Rules.

Further submissions constitute a fresh claim only if they are significantly different from previously considered material. Their content must not already have been considered and, taken with the earlier material, must create a realistic prospect of success.

If that threshold is not met, there is no claim, no refusal of a claim within section 82 of the Nationality, Immigration and Asylum Act 2002, and no statutory appeal. The categorisation decision is instead challengeable by judicial review.

The appellant, a Jamaican national who had lived in the United Kingdom since childhood, was made subject to a deportation order following criminal convictions. After his appeal against deportation had failed, he made further submissions based on his relationship with his newborn British son. The Secretary of State rejected the submissions and decided that they did not amount to a fresh human rights claim under rule 353 of the Immigration Rules.

The First-tier Tribunal declined jurisdiction over his attempted appeal. The Upper Tribunal dismissed his judicial review challenge, and the Court of Appeal dismissed his appeal in [2017] EWCA Civ 316.

The issue before the Supreme Court was whether further protection or human rights submissions must be accepted as a fresh claim under rule 353 before their rejection attracts a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

1. Appeal dismissed unanimously. Lord Lloyd-Jones delivered the judgment, with which Lady Hale, Lord Wilson, Lady Black and Lady Arden agreed. A person whose protection or human rights claim has already been refused, and whose appeal is no longer pending, obtains a further right of appeal only if the Secretary of State first accepts the further submissions as a fresh claim under rule 353 of the Immigration Rules.

2. The Onibiyo line of authority established a preliminary categorisation stage. The Secretary of State decides whether further submissions are sufficiently different from the material previously considered and, taken with that material, create a realistic prospect of success. If they do not, there is no claim requiring a merits decision and therefore no appealable refusal. The categorisation decision remains subject to judicial review on conventional public law principles, with anxious scrutiny.

3. R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7 did not abolish this gatekeeping function. That decision concerned cases in which further submissions had produced an independently appealable immigration decision. Once such a decision existed, rule 353 could not be used to deny the in-country appeal conferred by the statutory scheme. It did not decide that rule 353 ceased to govern the logically prior question whether further submissions constituted a claim at all.

4. The narrower interpretation of BA (Nigeria) adopted in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 was correct. It reconciled BA (Nigeria) with ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 and preserved the distinct functions of rule 353 and the certification powers in sections 94 and 96 of the Nationality, Immigration and Asylum Act 2002.

5. The amendments made by the Immigration Act 2014 did not remove the categorisation stage. Although section 82 no longer depends on a listed “immigration decision”, it still requires a decision refusing a protection claim or human rights claim. Parliament legislated against the background of the established authorities and gave no indication that repeated submissions were intended to generate repeated appeals.

6. Accordingly, “a human rights claim” in section 82(1)(b) means an original human rights claim or a fresh human rights claim within rule 353. Because the Secretary of State had not accepted the appellant’s further submissions as a fresh claim, their rejection did not attract a statutory appeal.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously and affirmed the Court of Appeal’s conclusion that no statutory appeal arose unless the further submissions were accepted as a fresh claim under rule 353 of the Immigration Rules.
2. Court of Appeal: Jackson, Hamblen and Flaux LJJ dismissed the appeal in [2017] EWCA Civ 316, holding that section 82 covered an original human rights claim or a fresh claim falling within rule 353.
3. Upper Tribunal: UT Judge Southern dismissed the judicial review claim. He held that the First-tier Tribunal had correctly declined jurisdiction and that the Secretary of State’s rule 353 decisions were lawful.
4. First-tier Tribunal: Declined jurisdiction over the attempted appeal against the Secretary of State’s decision of 31 July 2015 because no right of appeal arose.