UKSC 7
On appeal from:  EWCA Civ 119
BA (Nigeria) (FC) (Respondent) v Secretary of State for the Home Department (Appellant) and others
PE (Cameroon) (FC) (Respondent) v Secretary of State for the Home Department (Appellant)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
26 November 2009
Heard on 30 July 2009
Elisabeth Laing QC
Deok Joo Rhee
(Instructed by Treasury Solicitors)
(Instructed by Turpin and Miller Solicitors)
(Instructed by Wilson and Co.)
"353. When a human rights or asylum claim has been refused 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."
Rule 353A, which needs to be read together with rule 353 to complete the picture, provides:
"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.
This paragraph does not apply to submissions made overseas."
The 2002 Act
"(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
This is the ground on which both BA and PE rely.
"(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).
(3) This section also applies to an appeal against refusal of leave to enter the United Kingdom if -
(a) at the time of the refusal the appellant is in the United Kingdom, and(b) on his arrival in the United Kingdom the appellant had entry clearance. ....
(4) This section also applies to an appeal against an immigration decision if the appellant -
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, or(b) is an EEA national or a member of the family of an EEA national and makes a claim to the Secretary of State that the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom."
The respondents' case is that section 92(4)(a) confers a suspensive in-country right of appeal unless the appeal has been certified under either section 94 or section 96 of the 2002 Act. It is suspensive because it suspends the operation of the immigration decision appealed against until the appeal has been disposed of.
"(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)(a) 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 if the Secretary of State or an immigration officer certifies -
(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.
(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies -
(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."
"In this Part, unless a contrary intention appears
"asylum claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention,
"human rights claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights"
Section 12 of the Immigration, Asylum and Nationality Act 2006 amends those definitions prospectively by adding in each case a provision that the expression:
"does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with the immigration rules."
As Sedley LJ observed in the Court of Appeal, under this amended formula a claim in any case where an earlier challenge to removal has been made and failed will only rank as an asylum claim or a human rights claim if it is a fresh claim under rule 353:  2 WLR 1370, para 27. The amendment has not yet been brought into force, as the entire system of immigration law is now under review. A Green Paper containing proposals to simplify the law was published in February 2008, and it is expected that a Bill to simplify the law will be published towards the end of this year.
The competing arguments in more detail
"The statute makes no express provision as to what is to be done in the case of repeated claims for asylum by the same person. The second claim may be identical to the first ('a repetitious claim') or may be different ('a fresh claim'). It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim whereas a repetitious claim does not.
In the case of a repetitious claim no more is required to be done: the first decision has ensured that the United Kingdom has complied with its obligations under the Convention. Section 6 of the 1993 Act creates no inhibition on the claimant's removal: the Secretary of State has on the occasion of his decision on the first claim decided the repetitious claim. So far as the decision on the claimant's repetitious application for leave to enter is concerned, the claimant will be told that leave has already been refused and that there is no need for any new decision."
"a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom".
The Convention there referred to was, of course, the Refugee Convention. The definition in section 167 of the 1999 Act was in substantially the same terms. Section 113 of the 2002 Act varies the language a little bit, because it calls this kind of claim "an asylum claim", introduces a requirement for it to be made at a place designated by the Secretary of State (no such place has been designated) and adds a definition in almost identical terms of "a human rights claim". The relevant phrase throughout is "a claim".
"A person who is outside the United Kingdom may not appeal under section 82(1) on the ground specified in section 84(1)(g) (except in a case to which section 94(9) applies)."
"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."
"[Ex]cluding material on which the claimant could reasonably have been expected to rely in the earlier claim" is now expressly dealt with by section 96. As already explained, ordinary repeat claims fall to be excluded under section 94.