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Supreme Court: second or subsequent human rights claims do not attract automatic right of appeal

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The Supreme Court has finally laid to rest the argument (advanced by me amongst others) that second or subsequent human rights or asylum claims automatically attract a right of appeal under the appeal regime of the Immigration Act 2014. They don’t, say their lordships. The meaning of “human rights claim” in section 82 as amended is to be read as “original human rights claim”. It follows that “protection claim” should be read in the same way.

The case is Robinson v Secretary of State for the Home Department [2019] UKSC 11 (formerly known as JR (Jamaica)). Lord Lloyd-Jones gives the leading judgment. Much as it pains me to say it, the tribunal was right all along.

There’s a lot more to the judgment, which goes through the Onibiyo line of cases, reviews the decisions in BA (Nigeria) [2009] UKSC 7, ZA (Nigeria) [2010] EWCA Civ 926, Waqar [2015] UKUT 169 (IAC), VM (Jamaica) [2017] EWCA Civ 225 and others. Ultimately, the take away is that where a person makes a second or subsequent human rights or protection claim, that person will only have a right of appeal against refusal if paragraph 353 of the Immigration Rules is satisfied. This requires, in short:

  1. ¬†Something “significantly different from the material that has been previously considered” which
  2. Creates a “realistic prospect of success” notwithstanding the previous refusal.

The fact that their Lordships basically have had to insert a word into the statute in order to achieve the desired policy outcome does suggest that the legislation wasn’t terribly well thought through. This is very much the view of their Lordships. The final words of the judgment:

As will be apparent from this judgment, the structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible.

Yup. There’s a shout out to the Law Commission’s current work on the Immigration Rules, but that isn’t going to help with the statutory mess which is the subject of this judgment.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.

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