Leonard Ogilvy, R (on the application of) v Secretary of State for The Home Department

A claimant cannot use a challenge to a decision refusing to treat representations as a fresh claim to reopen a separate refusal of a statelessness application. Where nationality has been conclusively determined, the Secretary of State may require the claimant first to approach the foreign authorities with a true and good-faith account before UK officials intervene. A general assertion that removal is remote does not oblige the decision-maker to investigate earlier, unreferenced communications. If removability is maintained indefinitely, a point may arise when the Secretary of State must take the initiative with the foreign authorities and reconsider the deportation position if travel documents cannot be secured.

The applicant sought permission to appeal against Upper Tribunal Judge Kebede’s decision dated 20 March 2023, which refused permission to apply for judicial review of the Secretary of State’s refusal dated 10 October 2022.

The Secretary of State had refused to entertain further representations as a fresh human rights claim under paragraph 353 of the Immigration Rules. The applicant argued that the decision irrationally failed to recognise arguable fresh claims based on statelessness and practical irremovability. Permission was refused on grounds 1 to 4 on the papers; grounds 5 and 6 were considered at an oral hearing.

The application for permission to appeal was refused.

1. The applicant’s paragraph 353 letter did not make a specific claim of statelessness. A separate application based on statelessness had already been refused and had not been challenged. The appropriate vehicle for a challenge on that issue was judicial review of the refusal of the statelessness application, not the decision under challenge.

2. Even if the decision letter was treated as making a decision about statelessness, there was no arguable irrationality. Upper Tribunal Judge Pitt had made definitive findings that the applicant was a Nigerian national and was not stateless. The Secretary of State was entitled to consider that the Nigerian authorities might change their position if the applicant disclosed his true identity and nationality.

3. The Secretary of State’s policy did not oblige the Home Office to approach the foreign authorities before the applicant had himself given them a true and good-faith account. Home Office intervention was intended to support or reinforce such an attempt, including by providing information and arguments which the authorities were peculiarly well placed to advance. The applicant’s communications had instead maintained that he was not Nigerian.

4. The paragraph 353 letter raised irremovability only obliquely and contained no evidence that the applicant had made the required genuine approach. Earlier emails were not supplied with the letter, and the fact that one had been copied to the Home Office did not require it to be treated as part of the putative fresh claim.

5. The court expressed concern that the impasse should not continue indefinitely. If the Secretary of State wished to maintain removability, a time might come when the Secretary of State had to take the initiative with the Nigerian authorities. If that failed, the Secretary of State might have to consider revoking the deportation order and granting appropriate leave. That stage had not yet been reached. The applicant’s nationality was now the settled position of the UK authorities, and the Home Office was expected to make representations with reasonable expedition.

• Court of Appeal (Civil Division): refused permission to appeal against the refusal of permission to apply for judicial review.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kebede, on 20 March 2023, refused permission to apply for judicial review of the Secretary of State’s decision dated 10 October 2022.