Rights of appeal under the Immigration Act 2014 are only available in refugee cases and if ‘the Secretary of State has decided to refuse a human rights claim made by [the person]’ (amended section 82 of the Nationality, Immigration and Asylum Act 2002). This will clearly require a human rights claim to have been made in the first place as well as requiring a refusal of that claim. But what constitutes a human right claim and a decision by the Secretary of State?

In the case of R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 169 (IAC) the Upper Tribunal held that the new section 82 of the 2002 Act does not mean what it appears to say and should instead be interpreted so as to mean that only a new or fresh “claim” will count as a “claim” and require a “decision” thus giving rise to a right of appeal. Is Waqar correctly decided?

The short answer is “no”. The longer answer follows…

Facts and argument in Waqar

The claimant in Waqar was a foreign criminal and the new appeal regime applied to him. He had already made a previous human rights claim and lost his appeal. He then made new human rights representations, which were rejected by the Home Office as not meeting the requirements for a fresh claim under paragraph 353 of the Immigration Rules:

When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.

The claimant asserted that under the new appeal regime he had a right of appeal whether or not he met the requirements of paragraph 353. He had made a “claim” and the Secretary of State had “decided”. The claimant argued that mechanisms were available to the Secretary of State to prevent abuse, in the form of the various certification powers.

The tribunal preferred the Home Office approach, holding that the meaning of “claim” and “decision” in the new section 82 could not just mean an assertion of a human rights breach but had to meet the requirements of paragraph 353 of the Immigration Rules. If it did, anyone could generate a right of appeal as they wished, subject only to the constraints of the certification powers at sections 94, 94B and 96 of the 2002 Act.

Supreme Court in BA (Nigeria)

The problem with Waqar is that the same issue of interpretation was considered and decided differently by the Supreme Court in BA (Nigeria) v Secretary of State for the Home Department & Ors [2009] UKSC 7. The leading judgment is that of Lord Hope and he begins by setting out the question to be answered:

The question is whether the expression “an asylum claim, or a human rights claim” in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been accepted as a “fresh claim” by the Secretary of State under rule 353 of the Immigration Rules.

The answer is “no” (paragraph 32):

I would hold that claims which are not certified under section 94 or excluded under section 96, if rejected, should be allowed to proceed to appeal in-country under sections 82 and 92, whether or not they are accepted by the Secretary of State as fresh claims.

I recall that BA (Nigeria) was widely misunderstood at the time as generating a right of appeal against any refusal of a fresh claim. As I wrote at the time, that was not correct because the right of appeal depended on a procedural decision as regards immigration status. But that is no longer the case and under the Immigration Act 2014 BA (Nigeria) does now have the effect that some thought it did at the time.

The reasoning of Lord Hope and the majority was based on the statutory scheme, which has changed under the Immigration Act 2014, but the protections against abuse in the form of different certificates remain in place, and have indeed been enhanced by the Act, so it is hard to see how the judgment no longer has effect.

Further, the statutory scheme of appeals is under the Immigration Act 2014 very different to the earlier statutory scheme at the time of Onibiyo [1996] QB 768, on which the tribunal heavily relies in Waqar. At the time of Onibiyo section 8 of the Asylum and Immigration Appeals Act 1993 was in force regarding appeal rights, and like the pre-Immigration Act 2014 version of section 82 of the 2002 Act the right of appeal was tied to procedural decisions regarding immigration status. This is no longer the case under the Immigration Act 2014 and it is hard to see justification for applying the reasoning in Onibiyo to the new regime.

Prospective amendment

Lastly, the definition of “human rights claim” at section 113 of the 2002 Act is subject to a prospective amendment. In 2006 a new version was placed on the statute book but which has never yet been brought into force. Compare and contrast:

The versions above both have an amendment wrought by the Immigration Act 2014 included, which adds the reference to refusal of entry to the UK. We can see, though, that the Home Office have foreseen the potential difficulty with the definition of section 113 and the prospective version adds specific reference to the fresh claim test. The fact that it has not been brought into force also perhaps goes to suggest that the decision of the tribunal in Waqar is incorrect given that the reasoning in BA (Nigeria) was much concerned with the statutory scheme.

The Upper Tribunal has for now saved the Home Office from the consequences of its own laws. Waqar is now under appeal but it will be some time before we find out whether it is upheld.

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