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Second human rights claim does not automatically trigger right of appeal says Supreme Courtasad-khan

In this judgment concerning appeal rights, the Supreme Court unanimously dismissed a Jamaican national’s appeal but it took the opportunity to express serious concern about the huge pressures confronting the appeals system and the complexities of the Immigration Rules. Highlighting the Law Commission’s consultation paper Law Commission: Simplification of the Immigration Rules; CP 242, 21 January 2019, Lord Lloyd-Jones lamented that “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.” Aged only seven, Mr Jamar Robinson arrived in the UK from Jamaica in October 1998 with six months’ leave to enter and then overstayed. Among his criminal convictions were two robberies that led to a deportation order being issued in July 2013. Lengthy deportation proceedings ensued and his appeal to the FTT was dismissed, it being accepted at the time that there was no family life in play. Permission to appeal to the UT was refused. He became appeal rights exhausted in May 2015 when further representations were made to the Home Office since his then partner was pregnant but the representations did not expressly seek the revocation of the deportation order and did not refer to human rights. The decision-maker refused to revoke the deportation order and concluded that deportation would not breach ECHR, art 8.

Equally, the representations did not amount to a fresh human rights claim within the meaning of the Immigration Rules, para 353. Mr Robinson’s son was born in July 2015 and further representations were made but again the decision-maker concluded that deportation would not breach art 8 and also that the further submissions did not amount to a fresh claim. An appeal to the FTT failed to aid him because it declined jurisdiction because the decision did not attract a right of appeal. Subsequently, the UT dismissed Mr Robinson’s application for judicial review of the decision that the further representations were not a fresh claim and the FTT’s decision that he had no right of appeal. The Court of Appeal dismissed his appeal in May 2017. In the Supreme Court, the question raised by the appeal was: where a person has already had a human rights claim refused and there is no pending appeal, do further representations/submissions that rely on human rights grounds have to be accepted by the decision-maker as a fresh claim in accordance with rule 353 if a decision in response to those submissions is to attract a right of appeal under the Nationality, Immigration and Asylum Act 2002, s 82.

Parties’ submissions

Firstly, Mr Robinson submitted that the line of authority beginning with Onibiyo [1996] EWCA Civ 1338 – which established that it was for the Secretary of State to decide whether further submissions constituted a fresh claim giving rise to a right of appeal – did not survive the Supreme Court’s decision in BA (Nigeria) [2009] UKSC 7. Secondly, he argued that the amendments to Pt 5 of the 2002 Act made by the Immigration Act 2014 fundamentally changed how the statutory scheme operates with the result that rule 353 no longer applies. As a result of the amendments, it was argued, the control mechanism established by the Onibiyo line of authority and rule 353 was abrogated. So the words “human rights claim” as they appeared in s 82(1)(b) following amendment had to be interpreted without reference to rule 353 and hence any second or subsequent submission which was a “human rights claim” under s 113(1) of the 2002 Act attracted a right of appeal under s 82, irrespective of whether the decision-maker accepted that it was a fresh claim within the meaning of rule 353.

These submissions were resisted by the Government which, first of all, argued that BA (Nigeria) does not establish that the words “human rights claim” – as they appear in Pt 5 of the 2002 Act – are to be interpreted without reference to the Onibiyo line of authority or rule 353. Secondly, the amendments to the 2002 Act achieved by the 2014 Act have not changed the position because it remains the case that there will only be an asylum or human rights claim to be determined if, in relevant cases, further submissions are considered to amount to a fresh claim.

The Supreme Court

Lady Hale, Lord Wilson, Lady Black, Lord Lloyd-Jones and Lady Arden dismissed the appeal on both points. The Justices decided that a second human rights claim does not without more automatically trigger a right of appeal. Delivering the court’s unanimous judgment, Lord Lloyd-Jones explained that whilst “a conspicuous feature of litigation” in UK immigration and asylum practice, if there is a sound basis, it is necessary to allow failed asylum and human rights claimants to make further applications adducing further submissions and/or supporting evidence “not least because circumstances may change significantly and unforeseeably following the rejection of a claim.”

In Onibiyo Lord Bingham found it easy to imagine cases in which an initial claim for asylum might be made on insubstantial, or even bogus, grounds, and then be rightly rejected, but in which circumstances would subsequently arise or come to light showing a threat of a kind requiring the grant of asylum. Hence, a system of legal protection unable to accommodate that possibility would be very seriously defective. Thus, in appropriate cases, affording access to the system of appeals is necessary when the second submission is rejected. But protecting the statutory system of appeals from abuse is also important and it is necessary to exclude second or successive applications which are made on previously rejected grounds or grounds which have no realistic prospect of success, and which are deliberately advanced as a tactic to delay removal. Centrally, the challenge is to operate a fair system effectively dealing with such matters in compliance with the UK’s international obligations.

In Onibiyo, while answering the question “what constitutes a fresh claim”, Lord Bingham’s “acid test” was whether the new claim is sufficiently different from the earlier claim to present a realistic prospect that a favourable view could be taken of the new claim despite the negative conclusion reached on the earlier claim. In the present case, the Supreme Court concurred with Jackson, Hamblen and Flaux LJJ that “human rights claim” in s 82(1)(b) of the 2002 Act must mean an “original human rights claim” or a fresh human rights claim which falls within rule 353 of the Immigration Rules.

(i) Scope of BA (Nigeria)

Essentially, the court disagreed with the submission that the Onibiyo line of authority was extinguished by BA (Nigeria), it found that the latter ruling was limited to cases where the further submissions have been rejected and there was an appealable decision. In ZA (Nigeria) [2010] EWCA Civ 926, Lord Neuberger MR explained that once there is such a decision, the complete code contained in the legislative scheme applies and rule 353 has no part to play. However, as held in ZT (Kosovo) [2009] UKHL 6, rule 353 still has a part to play: the Home Office can decide that the further submissions are not a “fresh claim”, i.e. matters do not enter into the territory governed by the “complete code” of “the legislative scheme”. Whereas certain passages of Lord Hope’s judgment in BA (Nigeria) – namely paras 29, 30, 31 and 33 – did lend support to the view that the new scheme introduced by the 2002 Act rendered the reasoning in Onibiyo and rule 353 redundant, Lord Lloyd-Jones found “major difficulties inherent in this reading” of that authority.

First of all, he found “no conflict” between Onibiyo and rule 353 and the statutory scheme in Pt 5 of the 2002 Act and deciphered that BA (Nigeria) established that, where further submissions are received on which an immigration decision was made within s 82 of the 2002 Act, in the absence of certification there will be an in-country right of appeal. By contrast, Onibiyo and rule 353 address a prior issue of whether there is a claim requiring a decision at all.

Secondly, the 2002 Act’s provisions, especially the powers of certification under ss 94 and 96, do not render Onibiyo and rule 353 redundant. Lord Lloyd-Jones concurred with Lord Neuberger’s observation in ZA (Nigeria) that rule 353 has an independent effect which is that no right of appeal ever arises, rather than only to limit to an out-of-country appeal, and the rule operates at a prior stage to s 94. Furthermore, s 96(1) addresses a different aspect of renewed claims, because it applies where a person relies on a matter that could have been raised in an earlier appeal but has no satisfactory reason for not doing so.

Thirdly, Parliament did not intend the 2002 Act to provide a comprehensive code for dealing with repeat claims or for rule 353 no longer to be effective. There was no attempt to repeal or amend the rule’s predecessor (rule 346) and Parliament approved subsequent amendments to the Immigration Rules that did not delete rule 353. Notably, following the amendment of the 2002 Act by the 2014 Act, it was also the case that rule 353 was amended to ensure it applies to human rights claims and protection claims, which suggests it was still effective.

Fourthly, the ambitiously broad reading of BA (Nigeria) that was contended for was “inconsistent” with ZT (Kosovo) where it was held that the Home Office had erred in applying s 94(2) of the 2002 Act instead of rule 353 in considering further submissions. BA (Nigeria) merely decided that rule 353 has no part to play once there is an appealable immigration decision and agreeing with Lord Neuberger’s views in ZA (Nigeria), Lord Lloyd-Jones judged that

49. … If the Supreme Court did decide in BA (Nigeria) that rule 353 is entirely redundant following the introduction of Part 5 of the 2002 Act, it must have intended to overrule or to depart from the decision of the House of Lords some nine months earlier in ZT (Kosovo). However, BA (Nigeria) contains no express statement to that effect. Moreover, while an earlier decision may be impliedly overruled, it is extremely improbable that this was the intention here, for reasons summarised by Lord Neuberger in ZA (Nigeria) …

Accordingly, the primary case advanced on appeal was not made out and so the court rejected the proposition that the reasoning in Onibiyo did not survive the decision in BA (Nigeria).

(ii) Amendments to the 2002 Act in 2014

Furthermore, the court roundly rejected the submission that the amendments to the 2002 Act, effected by the “flagship” Immigration Act 2014 which infamously restructured appeal rights, fundamentally changed the operation of the statutory scheme with the result that rule 353 no longer applies. Prior to embarking upon a full analysis of the second point the court conducted a survey of key post-2014 authorities, and all of these endorsed the overall conclusion that appeal should be dismissed. Cases such as Waqar [2015] UKUT 169 (IAC), R (MG) [2016] UKUT 283 (IAC) and R (Sharif Hussein) [2016] UKUT 409 (IAC) failed to provide any assistance to Mr Robinson. Lord Lloyd-Jones said that Sales LJ had been right in VM (Jamaica) [2017] EWCA Civ 225 to uphold the point made in Waqar that no right of appeal arises in relation to the decision that the new representations do not amount to a fresh claim and that such a decision can only be challenged by way of judicial review. The UT was right to classify rule 353 as the “gateway” to human rights appeals in Waqar.

The court said that referring to rule 353 to determine if subsequent submissions are a “human rights claim” does not result in the same words bearing different meanings. In BA (Nigeria) there was in each case a “human rights claim”. But the reason an entitlement to appeal arose was because the human rights claims had resulted in refusals to revoke deportation orders, an action that was a qualifying immigration decision under s 82(2)(k) of the 2002 Act. Consequently, the operation of rule 353 was excluded. In the present case, the legal issue was the prior question of whether there is a claim at all.

Lord Lloyd-Jones said that the amendments to Pt 5 of the 2002 Act from 20 October 2014 limit appeals to where there has been a refusal of a protection claim or a human rights claim, or the revocation of protection status. However, the structure and operation of s 82 remain unchanged and the amended version of s 82 does not relieve a person of the burden of establishing that the decision-maker has refused a valid human rights claim.

A series of submissions connected to the intention of Parliament in enacting the 2014 amendments were made in aid of the appeal but the points failed to curry favour with the court. Among other creative points, it was argued that Parliament did not introduce Lord Bingham’s “acid test” into the definition of “asylum claim” in Pt 5 of the 2002 Act.

The Supreme Court pointed out that Parliament is presumed to legislate in the knowledge of and having regard to relevant judicial decisions, and notably in the present context Lord Neuberger’s approach in ZA (Nigeria) had provided an authoritative explanation of the effect of BA (Nigeria). In agreement with the views of the government, the court explained that:

62. … Parliament can therefore be assumed to have legislated in the light of a consistent line of authority which established that a purported human rights claim that did not meet the threshold of a fresh claim under rule 353 was not a claim at all. Had Parliament intended to depart from this approach, it would surely have made express provision to that effect. On the contrary, there is nothing in the amendments made in 2014 which supports the view that Parliament intended to open the door so as to enable repeated claims raising human rights issues to generate multiple appeals.

Therefore, Lord Lloyd-Jones agreed with the Court of Appeal that “human rights claim” in s 82 of the (amended) 2002 Act means an original human rights claim or a fresh human rights claim within rule 353. In general terms, he opined that where a person has already had a protection claim or a human rights claim refused and no appeal is pending, any further submissions relying on protection or human rights grounds must first be accepted by the decision-maker as a fresh claim in accordance with rule 353 if a decision in response to those submissions is to trigger a right of appeal under s 82.

Comment

Through the “hostile” mechanics of the Immigration Act 2014, during her tenure in the Home Office, Theresa May vowed to finally end the “snakes and ladders” system of meritless appeals. In 2013 she misleadingly accused the judiciary of being on the “side of foreign criminals”. Similarly, she also vilified immigration lawyers by labelling them “winners” like their foreign criminal clients. Mrs May’s outbursts stirred up resentment against immigrants and pitted the public against the judiciary and the legal profession. Under her orders, immigration law grew in complexity and inflicted harsh outcomes all around making everyone a loser.

This judgment is another reminder at apex court level that a grave need exists to simplify the sphere of immigration law, a field that Mrs May worked relentlessly to complicate and obfuscate beyond all comprehension. In addition to the Law Commission’s “timely and welcome” consultation paper, the Supreme Court also flagged up the report published by Justice on immigration and asylum appeals to reiterate the point that immigration law is excessively complicated and must be reformed and simplified urgently.

As seen earlier in KO (Nigeria) [2018] UKSC 53, it is extremely ironic that Lord Carnwath found it “profoundly unsatisfactory” that even those provisions intending to provide clear guidelines to minimise the need for judicial assessment, i.e. the ones laid down in ss 117A to 117D of Part 5A of the 2002 Act on art 8 and the public interest, should create huge chaos when in reality statute “deliberately establishes an uncomplicated set of rules.”

This article was originally posted here.