BA (Nigeria) [2009] UKSC 7 in the Supreme Court did not create a right of appeal against refusal of a human rights claim. A right of appeal to the tribunal can only ever exist where an ‘immigration decision’ is made, as exhaustively and (almost*) exclusively defined at section 82 of the Nationality, Immigration and Asylum Act 2002.

What BA (Nigeria) did decide is where there would already be a right of appeal, where it is asserted that the decision will breach human rights the right of appeal is an in-country one rather than an out-of-country one. In that case, there was a right of appeal because the decision was a decision to revoke a deportation order, which is listed at s.82(2)(k).

In most cases, there will still be no immigration decision. Take the example of a person has been living in the UK without status for some years, perhaps because the Home Office took no action to remove them after overstaying or making an unsuccessful asylum claim, and who then comes to the attention of UKBA, typically by making a human rights claim themselves or through a traffic incident or other police encounter. The person has formed a durable relationship and has children: he or she has a potentially good human rights claim. The normal course of events is for the Home Office to reject the claim out of hand (‘Kiddies? So what? They’re adaptable little buggers!’) but for the case to get serious consideration on appeal.

The problem is that, as previously mentioned on this blog, the Home Office is increasingly responding by rejecting the claim but then taking no enforcement action. Instead a polite request is inserted at the end of the refusal letter that the person depart these shores. Pretty please. No immigration decision is made.

There is no right of appeal here, and BA (Nigeria) does not create one. The only remedy is an application for judicial review, rather gallingly with half an eye on forcing the Home Office to do what it should have done in the first place and make an immigration decision to remove the person, which can then be appealed to the tribunal. There are pending legal challenges to this odd UKBA policy, apparently.

For anyone still unsure of the above interpretation, it was recently followed in the High Court in the case of ZA (Nigeria) [2010] EWHC 718 (Admin).

• EEA decisions also give rise to a right of appeal under regulation 26 of the EEA (Immigration) Regulations 2006 and a decision to make an automatic deportation order is also an immigration decision, under the amended s.83(3A) of the 2002 Act.