IN THE UPPER TRIBUNAL
F ield House,
29 March 2019
MR JUSTICE DINGEMANS SITTING AS AN UPPER TRIBUNAL JUDGE
The Secretary of State for the Home Department
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
Raza Husain QC and Duran Seddon instructed by Gherson solicitors appeared behalf of the Applicant.
Neil Sheldon QC instructed by the Government Legal Department appeared on behalf of the Respondent.
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
APPLICATION FOR JUDICIAL REVIEW
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
Mr Justice Dingemans :
1. This is the hearing of a claim for judicial review of the refusal of the Secretary of State to consider further representations in support of ZZ’s claim for asylum because ZZ has outstanding an appeal to the Upper Tribunal against the Secretary of State’s earlier decision to refuse asylum. The Secretary of State’s decision was affirmed by the First Tier Tribunal, but ZZ has been granted permission to appeal to the Upper Tribunal.
The factual background
Relevant statutory provisions and provisions of the Immigration Rules
36 Extradition following appeal
(1) This section applies if—
(a) there is an appeal to the High Court under section 26 against an order for a person's extradition to a category 1 territory, and
(b) the effect of the decision of the relevant court on the appeal is that the person is to be extradited there.
(2) The person must be extradited to the category 1 territory before the end of the required period.
(3) The required period is—
(a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or
(b) if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.
(3A) If the day referred to in paragraph (a) of subsection (3) is earlier than the earliest day on which, by reason of an order under section 36B or 36C, the extradition order may be carried out (“the postponed date”), that paragraph has effect as if it referred instead to the postponed date.
(5) The decision of the High Court on the appeal becomes final—
(a) when the period permitted for applying to the High Court for leave to appeal to the Supreme Court ends, if there is no such application;
(b) when the period permitted for applying to the Supreme Court for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the Supreme Court for leave to appeal;
(c) when the Supreme Court refuses leave to appeal to it;
(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the Supreme Court is granted, if no such appeal is brought before the end of that period.
(6) These must be ignored for the purposes of subsection (5)—
(a) any power of a court to extend the period permitted for applying for leave to appeal;
(b) any power of a court to grant leave to take a step out of time.
(7) The decision of the [Supreme Court]2 on the appeal becomes final when it is made.
(8) If subsection (2) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.
39 Asylum claim
(a) an order is made under this Part for a person to be extradited in pursuance of a Part 1 warrant, and
(b) the person has made an asylum claim (whether before or after the issue of the warrant),
the person must not be extradited in pursuance of the warrant before the asylum claim is finally determined; and sections 35, 36, 47 and 49 have effect subject to this.
(5) If the Secretary of State allows the asylum claim, the claim is finally determined when he makes his decision on the claim.
(6) If the Secretary of State rejects the asylum claim, the claim is finally determined—
(a) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State's decision on the claim;
(b) when the period permitted for appealing against the Secretary of State's decision on the claim ends, if there is such a right but there is no such appeal;
(c) when the appeal against that decision is finally determined or is withdrawn or abandoned, if there is such an appeal.
(7) An appeal against the Secretary of State's decision on an asylum claim is not finally determined for the purposes of subsection (6) at any time when a further appeal or an application for leave to bring a further appeal—
(a) has been instituted and has not been finally determined or withdrawn or abandoned, or
(b) may be brought.
(8) The remittal of an appeal is not a final determination for the purposes of subsection (7).
(9) The possibility of an appeal out of time with leave must be ignored for the purposes of subsections (6) and (7).
353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of 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 that 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 claims made overseas.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
Some relevant legal principles on what amounts to a claim and when injunctions will be granted
No unlawful decision