Updates, commentary, training and advice on immigration and asylum law
Fresh guidance on fresh claims
THANKS FOR READING
Older content is locked
A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
TAKE FREE MOVEMENT FURTHER
By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;
- Single login for personal use
- FREE downloads of Free Movement ebooks
- Access to all Free Movement blog content
- Access to all our online training materials
- Access to our busy forums
- Downloadable CPD certificates
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)  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  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.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.