This decision will undoubtedly be welcomed by individuals in immigration and asylum cases.  It drives a coach and horses through the current “fresh claim” regime which until this decision required the applicant to meet an additional hurdle before the Secretary of State for the Home Department would deliver a decision triggering an in-country right of appeal.  It should also be met with some enthusiasm by the Administrative Court and Upper Tribunal who are and will be respectively tasked with dealing with a significant number of “fresh claim” judicial reviews.  Interestingly, in this context, the judgment has yet to be given much if any coverage in the legal press.  How long the decision will remain relevant remains to be seen as a statutory amendment as yet not in force (section 12 of the Immigration, Asylum and Nationality Act 2006) will give a legislative underpinning to the fresh claim regime.

The issue for the Supreme Court in the case was a limited one: whether the expression “an asylum claim, or a human rights claim” in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been accepted as a “fresh claim” by the Secretary of State under rule 353 of the Immigration Rules HC 395.

The first respondent, BA, was an individual against whom a decision to deport had been taken and whose appeal had failed.  He was served with a deportation order and made further submissions which were refused.  BA applied for judicial review of the removal directions stating that he had a further in-country right of appeal.  The second respondent, PE, entered the UK and had claimed refugee protection which was refused.  Following a conviction the Secretary of State decided to make a deportation order.  His appeal was dismissed.  Following that he made further written submissions which the Secretary of State declined to accept stating that they did not amount to a fresh claim.  PE applied for judicial review claiming that he had an in-country right of appeal against the refusal to revoke the deportation order and that in any event the representations amounted to a fresh claim.

The 2002 Act governs the appeal process against immigration decisions.  Section 82 defines an “immigration decision” which provides a trigger for an appeal.  The right of appeal is not exercisable in-country unless it is of a kind to which section 92 applies.

The Secretary of State has available a mechanism which acts as a filter to preclude unmeritorious claims coming before the court, namely the ability to certify a claim as “clearly unfounded” within the meaning of section 94.  The effect of such a certification is that there will be no right of appeal and the only avenue is to challenge the certificate by way of judicial review.  No such certificates were issued in this case.  However, the Secretary of State contended that an appeal against an immigration decision is available only out of country where, as in BA’s case, the further representations have not been advanced as a fresh claim, or, as in PE’s case, have not been accepted as such by the Secretary of State.

There was common ground between the parties that the intention of Parliament had to be derived from the context, the legislative history and requirements of international instruments.  However, aside from that the parties approach differed. 

The Secretary of State principally relied on the fact that two earlier Court of Appeal (Cakabay and ex p Onibiyo) authorities had endorsed the fresh claim approach under the previous legislative regime which was materially similar to that under consideration in the case. 

The respondents on the other hand stated that the legislative context of the 2002 Act was markedly different from its predecessor and in particular there were now a series of statutory provisions against abuse (including the possibility of certification of claims as clearly unfounded) which were not to be found in the earlier legislation. 

Lord Hope gave the leading judgment of the Court and placed significance on these new provisions stating at [29]:

“It is common ground that the present cases are not certifiable under either of these two sections [94 and 96 of the 2002 Act].  Why then should they be subjected to a further requirement which is not mentioned anywhere in the 2002 Act?  It can only be read into the Act by, as Sedley LJ in the Court of Appeal put it, glossing the meaning of the words “a…claim” so as to exclude a further claim which has not been held under rule 353 to be a fresh claim: [2009] 2 WLR 1370, paras 20, 30.  The court had to do this in Ex p Onibiyo.  But there is no need to do this now.”

He went further and held that the two systems for excluding repeat claims were not compatible in that a person whose claim is not considered to be a fresh claim would not be given the benefit of section 84(1)(g) of the 2002 Act which was designed to honour the international obligations of the United Kingdom and which an individual whose claim was certified would benefit from: see [30]-[31].

While the case involves some degree of technicality, the force of the judgment is clearly expressed by Lord Hope at [33]:

“Rule 353, as presently drafted, has no part to play in the legislative scheme.  As an expression of the will of Parliament [the scheme] must take priority over the rules formulated by the executive,”

A clear and principled judgment which should have the beneficial effect of reducing the amount of time and expense involved in litigating “fresh claim” judicial reviews through the courts, and speeding up the process by which the substantive claim of the individual can be examined.  Surely everyone wins.