Share it

This appeal considered whether the right to appeal against the refusal of a ‘human rights claim’ pursuant to the Nationality, Immigration and Asylum Act 2002, s 82 includes determinations by the Secretary of State that further submissions do not amount to a ‘fresh claim’ under the Immigration Rules, rule 353.

The Supreme Court unanimously dismissed the appeal.

The Court considered the principle established in R v Secretary of State for the Home Department Ex p Onibiyo [1996] QB 768, that it was for the Secretary of State to decide whether further submissions constituted a fresh claim giving rise to a right of appeal. Rejecting the appellant’s submission, the Court held that this principle was not overturned by BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7 as that case turned on its own facts where further submissions were rejected and there was an appealable decision. The Court held that 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.

The Court also rejected the appellant’s submission that the amendments to the 2002 Act effected by the Immigration Act 2014 fundamentally changed the operation of the statutory scheme, with the result that rule 353 no longer applied. Inter alia, the Court considered that Parliament is assumed to have legislated in light of a consistent line of authority establishing that a purported human rights claim short of the threshold of a fresh claim under rule 353 was not a claim at all.

Therefore, the Court concluded 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, and as such that the Secretary of State’s response to the appellant’s further submissions did not attract a right of appeal.

For judgment, please download: [2019] UKSC 11
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (15 Nov 2018 morning session) (15 Nov 2018 afternoon session)