- BY Alex Piletska
Fresh guidance on fresh claims
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What amounts to a “fresh claim” for permission to stay in the UK and how should the immigration tribunal handle challenges arguing that someone’s case should be treated as a fresh claim? These were the questions considered by the Upper Tribunal in R (Akber) v Secretary of State for the Home Department (paragraph 353; Tribunal’s role) [2021] UKUT 260 (IAC).
Background: successive settlement applications
Mr Akber is a citizen of Pakistan. After living in the UK on the student and Tier 1 (General) routes, he applied for settlement on the basis of ten years’ long residence.
The Home Office refused his application in February 2018 under paragraph 322(5) of the Immigration Rules, saying that his presence in the UK was not conducive to the public good. This was because of an alleged discrepancy between earnings reported to HM Revenue and Customs (for tax purposes) and the Home Office (for claiming points to extend his permission to stay).
Mr Akber appealed against the refusal. The First-tier Tribunal allowed his appeal. Following an appeal by the Home Office, the Upper Tribunal sent it back to the First-tier Tribunal for a re-hearing. This time, while the First-tier Tribunal did not accept that Mr Akber had declared different earnings to HMRC and the Home Office, it did find that he acted dishonestly by not filing a tax return in the tax year 2010/11 at all.
At this point, Mr Akber attributed his failure to file the tax return in question to the negligence of his accountant. Anyone familiar with the case law in this area will know how rarely this explanation for tax misconduct is successful.
Several days after the Upper Tribunal refused Mr Akber permission to appeal the decision any further, he lodged a second settlement application. This time he argued that the reason he did not file a tax return for the year in question was because no tax was due. The Home Office once more refused to grant Mr Akber settlement.
Officials also concluded that the new application did not amount to a fresh human rights claim that had a realistic prospect of success on appeal (paragraph 353 of the Rules). This meant Mr Akber did not have a right of appeal against the refusal decision. Instead he applied for judicial review.
Was the second application a fresh claim?
The challenge to the decision went ahead on two grounds: that the decision gave rise to a right of appeal and that it breached his Article 8 right to a private and family life.
The Upper Tribunal refused permission on the first ground. It found that although determining the application required the Home Office to consider the merits of the application, that did not mean that in concluding that Mr Akber had not made a fresh claim with a realistic prospect of success, it was refusing a human rights claim in a way that would trigger a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. The headnote sets out the reasoning in much more detail, so we won’t reinvent the wheel by summarising it again.
Success on the second ground would have meant the tribunal tackling the human rights issues for itself, rather than reviewing whether the Home Office had made a public law error. It refused to do so. The judges distinguished Balajigari [2019] EWCA Civ 673, which involved human rights considerations in circumstances where the applicants had no right of appeal, from Mr Akber’s situation:
The position is… different in fresh claims cases such as this. The case law in relation to fresh claims has consistently stated that the role of the Tribunal is only to consider whether the decision is Wednesbury unreasonable or involves public law error.
Overall, this judgment is a useful summary of existing case law and confirmation of the position with respect to fresh claims, rather than any kind of change or departure from the status quo.
Paragraph 353 of the Immigration Rules
1. The importance of paragraph 353 of the Immigration Rules (“Paragraph 353”) is as a “gate-keeping” function to shut out from the appeals system unmeritorious second or subsequent appeals. An appeal is generated under the current form of section 82 Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) whenever a protection or human rights “claim” is made and refused. However, the Respondent is not obliged to treat repeat submissions as a “claim” leading to a “decision” generating a right of appeal in every case (Robinson v Secretary of State for the Home Department [2020] AC 942).
2. The words “if rejected” in Paragraph 353 specifically contemplate that the Respondent must form a view on the merits of the further submissions, in the sense that she may decide the submissions are such as to warrant the grant of leave to enter or remain (and to recognise the person as a refugee or otherwise entitled to international protection). It is only if she does not do so that Paragraph 353 requires her to determine if the (ex hypothesi) rejected submissions are a fresh claim, the refusal of which constitutes a decision falling within section 82 of the 2002 Act. It is artificial to separate the underlying merits of what is put forward from the question whether something “significantly different” is being advanced for the purposes of Paragraph 353. It is not the case, therefore, that the Respondent has “decided” a “claim” under section 82 of the 2002 Act in any case where she considers further submissions or a further application and concludes that the submissions or application do not merit the grant of leave.
3. The end-to-end process where Paragraph 353 applies is as follows:
Stage 1: The Applicant makes human rights or protection claim.
Stage 2: That claim is refused by the Respondent, giving rise to a right of appeal under section 82 of the 2002 Act.
Stage 3: The Applicant’s appeal is unsuccessful; or the Applicant does not appeal or withdraws his appeal; or the refusal is certified under section 94 of the 2002 Act.
Stage 4: The Applicant makes second or subsequent submissions by way of written submissions or application (“the Further Submissions”).
Stage 5: The Respondent considers whether to accept or reject the Further Submissions on their merits.
Stage 6: If the Further Submissions are accepted on their merits, the Respondent grants leave/recognises Applicant’s status.
Stage 7: If the Further Submissions are rejected, the Respondent goes on to consider whether they nonetheless amount to a fresh protection or human rights claim; i.e. a categorisation decision is made.
Stage 8: If the Respondent determines that the Further Submissions do not amount to a fresh claim, she rejects them as such. No refusal of a human rights or protection claim arises, within the meaning of section 82(1)(a) or (b) of the 2002 Act. If, however, she determines that they do amount to a fresh claim, then a “decision” has been made to refuse a “claim” for the purposes of Section 82 (1)(a) or (b) of the 2002 Act and a right of appeal arises against that decision
4. The guidance given in Sheidu (further submissions; appealable decisions; Sudan) [2016] UKUT 412 (IAC) is that if the effect of a decision is a refusal of a claim under section 82 of the 2002 Act, then there is a right of appeal even if the Respondent had intended to refuse further submissions applying Paragraph 353. That guidance turns on the interpretation of the particular decision letter under consideration in that case. In some (albeit extreme) cases such as Sheidu, the Upper Tribunal may conclude in the context of a judicial review challenge that what the Respondent actually did was not what she intended to do. Such cases are nevertheless likely to be rare.
5. Whether a decision of the Respondent is a decision to refuse to treat submissions as a fresh claim or the refusal of what is accepted to be a fresh claim is a matter of substance and not form. The nature of the decision does not depend where in the decision letter Paragraph 353 is raised. It is
necessary to look at a Paragraph 353 decision under challenge as a whole. It must be interpreted objectively, considered fairly in the round and in substance.
The Role of the Tribunal in Judicial Review Challenges to Paragraph 353 Decisions
6. Balajigari and others v Secretary of State for the Home Department [2019] 1 WLR 4647 and R (oao BAA and Another) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 00227 (IAC) did not involve fresh claim decisions. As such they are distinguishable from fresh claims cases. The case law in relation to fresh claims has consistently stated that the role of the Tribunal is only to consider whether the decision is Wednesbury unreasonable or involves other public law error: (WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337).
7. In a Judicial Review of a decision made under Paragraph 353, the Upper Tribunal is tasked with considering the Respondent’s decision for rejecting the submissions as a fresh claim. The Tribunal is not required to reach a decision for itself whether the Respondent’s decision breaches an applicant’s human rights. The position in this regard is akin to that where an appellate court or tribunal is examining the legality of the mixed legal and factual conclusion reached by a fact-finding tribunal on whether a decision violates Article 8 rights.
8. In the event that further material comes to light, the remedy for an applicant is to make further submissions to the Respondent and not seek to place the Tribunal in the role of primary decision-maker.
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