Two further cases have added to the jurisprudence on whether it is possible under the Immigration Act 2014 to appeal against a refusal of a fresh protection claim. The cases are R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC) and  Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC).

As background, I and others have argued since the passage of the Immigration Act 2014 that there is a right of appeal against a decision to reject a fresh human rights or asylum claim. By “fresh” I mean not the initial claim for protection but a second or subsequent claim.

The argument is based on the new rights of appeal in the 2014 Act. There is a right of appeal where the Secretary of State has “decided to refuse” a “protection claim”, where “protection claim” is defined thus:

(2) For the purposes of this Part –

(a) a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom –

(i) would breach the United Kingdom’s obligations under the Refugee Convention, or

(ii) would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

(b) P’s protection claim is refused if the Secretary of State makes one or more of the following decisions –

(i) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations under the Refugee Convention;

(ii) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

(c) a person has “protection status” if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;

(d) “humanitarian protection” is to be construed in accordance with the immigration rules;

(e) “refugee” has the same meaning as in the Refugee Convention.

If a person asserts in further submissions that his or her removal would breach his or her human rights or the Refugee Convention and that assertion is rejected by the Secretary of State, then the argument runs that this is a refusal of a protection claim which can therefore be appealed.

Until now, the Upper Tribunal has steadfastly maintained that this argument is nonsense and there is no right of appeal where a fresh claim is refused; if a person is unhappy about rejection of a fresh claim their remedy is judicial review not appeal. See Waqar, Robinson and MG. Permission to appeal to the Court of Appeal was refused in Waqar and it had started to look as if the higher courts would be unable or unwilling to consider the point. Which is surprising, at least to me, because it seems to be rather an important point and one which is at the very least arguable. The fact that there are now five reported Upper Tribunal cases attempting to address the issue does rather suggest that it is arguable, I would suggest.

The first of the new cases, Hussein, recites the legislative and jurisprudential background in detail before concluding, in short, that Waqar was right. However, the headnote reads as follows:

(1) Lord Neuberger’s judgment in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 is an authoritative pronouncement on the scope of the Supreme Court’s judgments in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7.

(2) Parliament’s actions in amending paragraph 353 (fresh claims) of the immigration rules in the light of the changes to the appeal regime made by the Immigration Act 2014, together with its decisions:-

(i) to amend, but without bringing into force, the prospective amendments made in 2006 to the definition of “human rights claim” in section 113 of the Nationality, Immigration and Asylum Act 2002; and

(ii) to amend the existing definition of “human rights claim” in the light of the 2014 Act,

show that Parliament intends paragraph 353 to be used to determine whether further submissions constitute a fresh human rights claim for the purpose of “new” section 82 of the 2002 Act.

(3) If, in the post-2014 Act world, Parliament had intended paragraph 353 to apply only to the Secretary of State’s certification decisions, then Parliament would have made this plain. If the applicant were correct that paragraph 353 currently has only such a limited ambit, commencing the 2006 amendments to section 113 of the 2002 Act would not enable the Secretary of State to make any significantly greater and/or coherent use of paragraph 353.

(4) Parliament’s decision to leave in place the expressions “submissions” and “if rejected” in paragraph 353 are indicative that they continue to serve the function of permitting the Secretary of State to categorise cases as between those that do not amount to a claim at all and those which, though rejected, amount to a fresh human rights claim for the purposes of “new” section 82.

(5) The Secretary of State is not the sole arbiter of whether, in any particular case, she has made a decision to refuse a human rights claim, as opposed to refusing to treat submissions as amounting to a fresh claim.

I can find no trace of a basis for the fifth paragraph of the headnote in the actual transcript of the judgment. Instead, the reasoning to justify that fifth paragraph is to be found in the second of the new cases, Sheidu. It rather looks like the reporting committee has been playing it fast and loose to try to maintain the appearance of a false judicial consensus, and not for the first time.

In Sheidu, a panel of the Upper Tribunal chaired by Mr Ockelton finds that rejection of further submissions might after all generate a right of appeal. Essentially, the tribunal finds that there are two distinct but often deceptively overlapping questions that arise when further submissions are made and rejected:

1. Are the further submissions a fresh claim within the meaning of paragraph 353 of the Immigration Rules? Yes or no, this is not of itself a decision giving rise to a right of appeal, the tribunal maintains (albeit more shakily than hitherto).

2. Is the rejection of the further submissions the rejection of a human rights claim? This depends on the terms in which the decision is expressed. If yes, there *is* a right of appeal.

On the facts of the particular case, there was a right of appeal because the decision was headed “DECISION TO REFUSE A PROTECTION CLAIM AND HUMAN RIGHTS CLAIM” and the decision went on explicitly to state that the deportation of the claimant would not breach his human rights. In other words, the decision went beyond merely deciding whether or not there was a fresh claim under paragraph 353 of the rules and constituted a decision to refuse a human rights claim.

Or, as the official headnote says:

If the SSHD makes a decision that is one of those specified in s 82(1), it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim.

Mr Ockelton is willing to concede that Waqar is not necessarily rightly decided and that the there is a legitimate counter argument:

Despite the unanimity thus far, there is clearly room for a modest measure of doubt. There is as yet no authoritative decision of the Court of Appeal on these provisions. Is it really right to treat “claim” in s. 82(2)(a) as meaning “fresh claim within the meaning of paragraph 353”? As has been pointed out on a number of occasions, paragraph 353 does not specify what is to be the result of the consideration of the new submissions. If they are “rejected”, the next question is whether they amount to a “fresh claim”. May it be that in line with ZT (Kosovo) and ZA (Nigeria), if the Secretary of State does actually refuse the submissions, the decision falls within s. 82? If that is so, the existing “fresh claim” regime could survive, for reasons found in the wording of the paragraph itself. As the Tribunal points out in Hussein, the word “rejected”, which is the crucial one in paragraph 353, is not part of the vocabulary of the statute. It may be that, if the Secretary of State communicated a rejection of the submissions, rather than a refusal of the claim, there would be no appealable decision, but on the other hand the decision to reject and the consequential decision that there was not a “fresh claim” could be judicially reviewed, as previously.

Interestingly, the door is perhaps opened rather wide by Sheidu. This is because the correct approach to 353 decisions is first to decide whether the claim should succeed or should fail and then to consider whether, assuming it fails, whether it is nonetheless a fresh claim as defined in paragraph 353. See, for example, the Home Office policy instruction on further submissions:

In all cases where further submissions are received, caseworkers must first decide whether or not to grant leave for asylum or human rights reasons, family or private life under the Immigration Rules or on the basis of exceptional circumstances…

It seems to me that Sheidu says that there is a right of appeal against a decision to refuse a claim under the first step but there is no appeal against the second step. So… there is always a right of appeal, because the first step always comes first. If I’m wrong about that I am very interested to hear why, so please do leave a comment or drop me an email.

As a final aside, I am surprised the Sheidu case reached the Upper Tribunal by means of a statutory appeal. The First-tier Tribunal normally rejects these attempted appeals by a procedure that precludes an appeal to the Upper Tribunal (rule 22 of the FTT rules), so I am not sure what happened here that enabled this appeal to progress so far. I have tried an appeal to the Upper Tribunal on this jurisdictional question before and been rebuffed.

In any event, the Sheidu decision certainly adds to the already considerable uncertainty around whether there is or is not a right of appeal in various different situations. Some rejections of fresh claims will give rise to a right of appeal while others perhaps will not. Hopefully one of these two cases will proceed to the higher courts so that the question can be more definitively settled and some measure of certainty achieved.