ON APPEAL FROM THE HIGH COURT OF JUSTICE
Sir Anthony May President of the Queen's Bench Division & Mr Justice Foskett
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE SULLIVAN
| The Queen on the Application of ZA (Nigeria) and SM (Congo)
|- and -
|Secretary of State for the Home Department
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Manjit Gill QC and Danny Bazini (instructed by Trott & Gentry) for the Second Appellant
Robin Tam QC and David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing date : 14 July 2010
Crown Copyright ©
Lord Neuberger MR:
The facts giving rise to these appeals
"2. SM is a national of the Democratic Republic of the Congo, who arrived in the United Kingdom on a false passport on 7th May 2007 and applied for asylum. His application was refused on 4th June 2007 and on 5th June 2007 he was given formal notice of Refusal of Leave to Enter with a decision to make removal directions. His appeal was dismissed by an Immigration Judge on 28th August 2007. Reconsideration of this decision was refused on 28th November 2007. On 24th July 2008, his former representatives made further submissions. In early 2008 he had entered into a relationship with a woman who was a refugee from the Democratic Republic of the Congo and with whom he underwent a traditional wedding ceremony on 31st January 2009. The further submissions were refused on 30th April 2009. He was detained on 20th May 2009. Further submissions based on Article 8 of the European Convention on Human Rights were made on 26th May 2009, and the present judicial review proceedings were begun on 27th May 2009. On the following day an injunction was obtained restraining his removal. A further letter dealing with and rejecting the Article 8 submission was served on 22nd June 2009. Blake J granted permission on 8th July 2009. He indicated that it was arguable on the basis of the Court of Appeal decision in BA (Nigeria)  EWCA Civ 119;  QB 686, that SM had an in-country appeal, although there was force in the Secretary of State's submission that the Article 8 claim did not outweigh the need for immigration control.
3. ZA is a Nigerian national, who arrived illegally in the United Kingdom in April 2002. He sought asylum on 28th May 2003 after he had been arrested for working illegally. The Secretary of State rejected his claim on 5th June 2003, on which date the Secretary of State gave him written notice in compliance with the Immigration (Notices) Regulations 2003 of a decision to remove him as an illegal entrant or other immigration offender. On 13th August 2003, his appeal was dismissed by an adjudicator. At some stage he absconded and he was recorded as an absconder on 22nd June 2005.
4. On 20th September 2008, ZA was arrested for suspected immigration offences and possession of drugs, although no charges were ultimately brought against him. On 23rd September 2008, his representatives made further submissions based on Article 8 of the European Convention on Human Rights and claimed that he fell within the Secretary of State's Legacy Programme. The Secretary of State rejected these further submissions in a letter dated 24th September 2009. Removal directions were set for 17th October 2009, but these were cancelled when he began judicial review proceedings on 14th October 2009. On 11th December 2009, Dobbs J refused permission finding that the claim was hopeless. Further removal directions were set for 21st December 2009, but ZA renewed his application for permission orally and an injunction was granted preventing his removal. We grant his renewed application for permission to bring these proceedings.
5. Each claimant contends that [he has] a right of appeal against the Secretary of State's rejection of their Article 8 claims. The Secretary of State contends that he has made no immigration decision which attracts a right of appeal and that he is not obliged to make one. He relies on the original decisions to remove the claimants."
Summary of the issue between the parties
The legislative background
Rule 353 of the Immigration Rules
"It was accepted for the applicant that a fresh 'claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it had to satisfy tests, analogous to Ladd v Marshall  1 WLR 1489, of previous unavailability, significance and credibility."
Sir Thomas agreed with that proposition, which was based on the reasoning of Stuart-Smith LJ in the earlier case of R v Secretary of State ex p Manvinder Singh  Imm AR 41.
"When a human rights or an asylum claim has been refused or withdrawn or treated as withdrawn under … these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material which has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to a claims made overseas."
The 2002 Act
"(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance, …
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal) …
(k) refusal to revoke a deportation order under section 5(2) of [the Immigration Act 1971]".
In these cases, SM was refused leave to enter, and therefore potentially fell within 82(2)(a), whereas ZA was the subject of a decision to remove him, potentially falling within section 82(2)(h).
"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j). ...".
(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(2) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded. ....
(9) Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal under section 82(1) while outside the United Kingdom, the appeal shall be considered as if he had not been removed from the United Kingdom."
"(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies—
(a) that the person was notified of a right to appeal under that section against another immigration decision (whether or not an appeal was brought and whether or not any appeal brought has been determined),
(b) that in the opinion of the Secretary of State or the immigration officer the new decision responds to a claim or application which the person made in order to delay his removal from the United Kingdom or the removal of a member of his family, and
(c) that in the opinion of the Secretary of State or the immigration officer the person had no other legitimate purpose for making the claim or application."
Although no longer in force, I note that section 96, when originally enacted, contained a subsection which provided that:
"(3) A person may not rely on any ground in an appeal under section 82(1) if the Secretary of State or an immigration officer certifies that the ground was considered in another appeal under that section brought by that person."
Analysis in the absence of recent binding authority
The interrelationship of Part 5 of the 2002 Act and rule 353
The decision of the House of Lords in ZT (Kosovo)  1 WLR 348
"A claimant may seek to adduce further material in support of his claims, which may or may not constitute a significant addition to those which he had earlier submitted without success. To meet this situation rule 353 was made …. This is relatively straightforward to operate where the Secretary of State has not given a certificate under section 94, its object being to obviate the necessity for her to reconsider every further submission as a fresh claim attracting the full panoply of the appeal process. If she has given a section 94 certificate, but there is an appeal against her refusal of asylum pending - which has had to be brought from outside the United Kingdom - the further submissions will fall to be considered as part of the material before the appellate tribunal and rule 353 will not come into play."
The decision of the Supreme Court in BA (Nigeria)  1 AC 444
"For the Secretary of State [counsel] did not dispute that a right of appeal arises under section 82(1) when a decision that is an immigration decision is taken. Nor does she dispute that the Secretary of State's refusal in these cases not to revoke the deportation orders were immigration decisions within the meaning of section 82(2)(k) of the 2002 Act. What was in issue was whether the right of appeal against those decisions was to be exercised from within the United Kingdom."
The observations relied on by the appellants in this case
"29. …The Secretary of State's power in section 94(2) of the 2002 Act to certify that a claim is clearly unfounded, if exercised, has the effect that the person may not bring his appeal in-country in reliance on section 92(4). The power in section 96 enables the Secretary of State or an immigration officer to certify that a person who is subject to a new immigration decision has raised an issue which has been dealt with, or ought to have been dealt with, in an earlier appeal against a previous immigration decision, which has the effect that the person will have no right of appeal against the new decision. It is common ground that the present cases are not certifiable under either of these two sections. 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: …The court had to do this in Ex p Onibiyo. But there is no need to do this now.
30. It is not just that there is no need now to read those words into the statute. As Mr Husain pointed out, the two systems for excluding repeat claims are not compatible …" (emphasis added).
"The ground of appeal referred to in section 84(1)(g) has been designed to honour the international obligations of the United Kingdom. To exclude claims which the Secretary of State considers not to be fresh claims from this ground of appeal, when claims which he certifies as clearly unfounded are given the benefit of it, can serve no good purpose. On the contrary, it risks undermining the beneficial objects of the Refugee Convention which the court in Onibiyo, under a legislative system which had no equivalent to section 95, was careful to avoid" (emphasis added).
"33. There is no doubt, as I indicated in Z T (Kosovo) v Secretary of State for the Home Department  1 WLR 348, para 33, that rule 353 was drafted on the assumption that a claimant who made further submissions would be at risk of being removed or required to leave immediately if he does not have a 'fresh claim'. That was indeed the case when this rule was originally drafted, as there was no equivalent of section 92(4) of the 2002 Act. But Mr Husain's analysis has persuaded me that the legislative scheme that Parliament has now put in place does not have that effect. Its carefully interlocking provisions, when read as a whole, set out the complete code for dealing with repeat claims. Rule 353, as presently drafted, has no part to play in the legislative scheme. As an expression of the will of Parliament, it must take priority over the rules formulated by the executive. Rule 353A on the other hand remains in place as necessary protection against premature removal until the further submissions have been considered by the Secretary of State." (emphasis added).
The Secretary of State's argument
i) Both decisions relate to a much litigated issue, and the earlier decision was given less than a year before the later decision;
ii) The point at issue was directly addressed and decided in all five reasoned judgments in the earlier decision, and even the reasoning of the dissenter would have to be treated as overruled;
iii) The earlier decision is expressly referred to three times in the leading judgment, and once in the only other reasoned judgment, in the later decision without apparent disapproval, and both judgments were given by judges involved in the earlier decision;
iv) The actual outcome in the later decision can perfectly easily be reconciled with the earlier decision, namely on the basis that the later decision is limited to further submissions which have been treated as a fresh claim;
v) This more limited interpretation of the later decision is consistent with the Court of Appeal's reasoning and conclusion in that case, which was specifically approved by the Supreme Court;
vi) This more limited interpretation of the later decision is also consistent with a recent statute, whereas the wider interpretation, which would involve overruling the earlier decision, is not.
Lord Justice Laws:
Lord Justice Sullivan: