Ali Akber, R (on the application of) v Secretary of State for the Home Department

Immigration Rules, paragraph 353 is a gatekeeping mechanism for repeat human-rights or protection submissions. The Secretary of State must consider their merits, but a refusal to grant leave does not itself constitute refusal of a statutory claim. Only rejected submissions which are accepted as a fresh claim produce an appealable decision under section 82 of the Nationality, Immigration and Asylum Act 2002.

The nature of a paragraph 353 decision depends on its substance, read fairly and as a whole, rather than the order in which matters appear in the decision letter. In judicial review of a fresh-claim decision, the Tribunal reviews for public-law error, applying anxious scrutiny. It does not determine the Article 8 issue afresh or become the primary fact-finder.

The applicant, a Pakistani national, had previously been refused indefinite leave to remain on long-residence grounds because of dishonesty connected with his tax affairs. His appeal against that decision was ultimately dismissed.

He made further submissions seeking indefinite leave to remain. The Secretary of State refused leave under the Immigration Rules, paragraph 322(5), and decided that the submissions were not a fresh claim under paragraph 353. The applicant sought judicial review of the decision dated 27 July 2020.

He contended that the decision was, in substance, a refusal of a human-rights claim giving a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. He also contended that the Tribunal had to determine his Article 8 claim and the disputed facts for itself.

1. The application for judicial review was refused. The decision did not refuse a fresh human-rights claim and generated no right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

2. Paragraph 353 performs a gatekeeping function. After an earlier human-rights or protection claim has ceased to be pending, the Secretary of State considers further submissions on their merits. If they warrant a positive response, leave may be granted. If rejected, the Secretary of State must then categorise them: only submissions which are significantly different and create a realistic prospect of success amount to a fresh claim. Only then does their refusal become an appealable refusal of a claim.

3. It is artificial to separate the merits of further submissions from the assessment whether they are significantly different. The Secretary of State may consider and reject the merits without accepting that the submissions are a statutory claim. The applicant's contrary construction was inconsistent with Robinson v Secretary of State for the Home Department [2020] AC 942.

4. Whether a decision is a refusal of a fresh claim or a refusal to treat submissions as a fresh claim is a question of substance, not form. The decision letter must be interpreted objectively, fairly, holistically and in context. The position identified in Sheidu is confined to the exceptional situation where a letter, properly construed, actually refuses a human-rights or protection claim despite an intended paragraph 353 decision. The location of paragraph 353 within a letter is not determinative.

5. Here, the refusal of the long-residence application reflected consideration of whether the new material justified a grant of leave. Read as a whole, the decision then rejected the Article 8 submissions as not amounting to a fresh claim. It did not generate an appeal.

6. In a judicial review of a paragraph 353 decision, the Tribunal reviews the Secretary of State's fresh-claim decision on ordinary public-law grounds, including anxious scrutiny. It does not resolve Article 8 proportionality or disputed primary facts afresh. The different approach in certification and non-fresh-claim cases, including Balajigari, was distinguishable. Any later evidence should instead be put to the Secretary of State in further submissions.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State's 27 July 2020 decision was refused.
• First-tier Tribunal: The applicant's earlier appeal against refusal of indefinite leave to remain was re-heard and dismissed by First-tier Tribunal Judge Fisher after the Secretary of State's successful challenge to an earlier allowed appeal.