Updates, commentary, training and advice on immigration and asylum law

Tribunal decides it has no jurisdiction to determine whether fresh protection claim test is met


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More from the tribunal on how a “protection claim” implicitly means the paragraph 353 fresh claim must be met where it applies. The tribunal must decide its jurisdiction, apparently, but not in these circumstances, where someone else must decide it. I still don’t buy it, but so far the higher courts have shown zero interest in overturning this line of tribunal authority.

1.  A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First-tier Tribunal under s.82 of the Nationality, Immigration and Asylum Act 2002 (as amended by s.15 of the Immigration Act 2014)

2.  Whilst the First-tier Tribunal must determine whether it has jurisdiction to entertain an appeal, it cannot decide whether a decision that further submissions do not amount to a fresh claim under para 353 was lawful or correct. Such a decision can only be challenged on public law principles in judicial review proceedings.

Source: MG, R (on the application of) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) (IJR) [2016] UKUT 283 (IAC) (17 May 2016)

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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.