Arifuzzaman Rana v First-Tier Tribunal (Immigration & Asylum Chamber)

A right of appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 depends on the substance and structure of the decision, not merely on the consideration of human-rights representations. Where further submissions are considered and rejected, followed by a determination under paragraph 353 of the Immigration Rules that they do not amount to a fresh claim, the decision is not necessarily a refusal of a human rights claim. A differently framed decision may produce a different result. Decisions giving rise to an appeal without express acceptance of a fresh claim are likely to be very rare.

The applicant sought an extension of time and, if granted, permission to appeal against Upper Tribunal Judge Owens’s refusal of permission to apply for judicial review. The proposed appeal concerned the First-tier Tribunal’s refusal to hear a statutory appeal against the Secretary of State’s letter of 22 June 2018.

The letter rejected an application for indefinite leave to remain and related human-rights representations, then concluded that the further submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules. The central issue was whether the letter nevertheless amounted to a refusal of a human rights claim carrying a right of appeal.

1. Extension of time. The court granted an extension of time for filing the appellant’s notice and bundle. Applying the relevant approach in Denton v TH White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926, there had been a serious failure to comply with the filing rules and no good reason for it. However, the Court of Appeal’s own prolonged failures to seal the notices meant that the applicant’s defaults had made no material difference to the progress of the applications. In those particular circumstances, an extension was fair, just and consistent with the overriding objective.
2. Appealability. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 provides a right of appeal where the Secretary of State has decided to refuse a human rights claim. The letter of 22 June 2018 did not, on its wording and structure, amount to such a refusal. It considered and rejected the further submissions and then followed the sequence required by paragraph 353 of the Immigration Rules by determining whether they amounted to a fresh claim.
3. Authorities. Sheidu v Secretary of State for the Home Department [2016] UKUT 412 (IAC) was materially different because the decision letter there was expressly headed as a refusal of a protection and human rights claim before the fresh-claim issue was addressed. The unreported decision in Secretary of State for the Home Department v Islam gave no assistance because its factual situation was different and it established no principle of law.
4. The court did not need to decide whether any part of Sheidu survived paragraph 64 of R(Robinson) v Secretary of State for the Home Department [2019] UKSC 11; [2020] AC 942. R(Akber) v Secretary of State for the Home Department [2021] UKUT 260 had not treated Robinson as requiring express acceptance of a fresh claim in every case. There was no real prospect of success and no other compelling reason to hear the appeal. Permission to appeal was refused.

• Court of Appeal (Civil Division) — granted an extension of time but refused permission to appeal: [2024] EWCA Civ 1211.
• Upper Tribunal (Immigration and Asylum Chamber) — Upper Tribunal Judge Owens refused permission to apply for judicial review on 30 July 2020.
• First-tier Tribunal (Immigration and Asylum Chamber) — First-tier Tribunal Judge Cameron refused to hear the statutory appeal on 5 February 2020, holding that the Secretary of State’s decision of 22 June 2018 was not appealable.
• Earlier judicial review proceedings — Upper Tribunal Judge Keith dismissed an earlier challenge to the Secretary of State’s decision on 19 December 2019. Macur LJ refused permission to appeal on 13 October 2020.