No Automatic Right of Appeal for Repeat Human-Rights Submissions – Commentary on Veysel Erturk v SSHD [2025] CSOH 49

No Automatic Right of Appeal for Repeat Human-Rights Submissions: Court of Session Affirms Robinson Principle in Veysel Erturk for Judicial Review [2025] CSOH 49

1. Introduction

In Veysel Erturk for Judicial Review of a decision by the Secretary of State for the Home Department ([2025] CSOH 49), Lady Poole sitting in the Outer House of the Scottish Court of Session decided a petition challenging the Home Secretary’s refusal to revoke a deportation order and to accord a statutory right of appeal. The case revolves around:

  • Whether further Article 8 representations made after an earlier, finally-determined human-rights claim constitute a “fresh claim” under paragraph 353 of the Immigration Rules, thereby enlivening a new right of appeal under s. 82(1)(b) Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
  • Whether the Secretary of State acted irrationally in concluding that the new material had “no realistic prospect of success” before an immigration judge.

The petitioner, a Turkish national with previous serious criminal convictions, argued that his arranged Islamic marriage to a Lithuanian national (and the birth of their child) fundamentally changed his private- and family-life position and that the Secretary of State (SSHD) should therefore have:

  1. Recognised a fresh human-rights claim and granted a statutory right of appeal; and
  2. Found a realistic prospect of success before the First-tier Tribunal (“FTT”).

Lady Poole dismissed both grounds, refused the petition, and—most significantly— re-affirmed that, once an earlier human-rights claim has been finally determined, fresh appeal rights only arise if the SSHD herself accepts the further submissions as a “fresh claim”.

2. Summary of the Judgment

1. The Court held that the petitioner’s further submissions of 22 February 2024 were properly assessed under paragraph 353 because he had already lodged, litigated and exhausted an Article 8 claim arising from representations lodged on 25 July 2018.
2. Applying R (Robinson) [2019] UKSC 11, there is no statutory right of appeal (pace s. 82(1) 2002 Act) where the SSHD concludes that new representations do not amount to a fresh claim; the only remedy is judicial review.
3. On the merits, it was neither irrational nor based on material error of fact for the SSHD to find that the petitioner’s new material (marriage entered into whilst facing deportation, wife and child residing abroad, no contact with child) gave rise to no realistic prospect of success before an immigration judge.
4. Accordingly, the petition for judicial review was refused and expenses were awarded against the petitioner (modified to nil because of legal-aid protection).

3. Analysis

3.1 Precedents Cited and Their Influence

  • R (Robinson) v SSHD [2019] UKSC 11. The cornerstone authority confirming that s. 82 appeals and paragraph 353 operate in tandem. Lady Poole quoted Sales LJ’s dictum adopted by the Supreme Court: unless the SSHD accepts further submissions as a fresh claim, her decision is not a “refusal of a human-rights claim” and thus carries no appeal right. The Court of Session treats Robinson as binding and directly dispositive of Ground 1.
  • R (Alighanbari) [2013] EWHC 1818 (Admin) and MY (Pakistan) [2021] EWCA Civ 1500. Cited by the petitioner to suggest that any refusal bearing on human rights is “a human-rights claim” for s. 82 purposes. Lady Poole found these authorities could not trump the Supreme Court’s structured approach in Robinson, which directly integrates paragraph 353.
  • WM (DR Congo) (2007) Imm AR 337. Often cited for the “realistic prospect of success” test in paragraph 353 assessments. The petitioner relied on it to argue that even a low (de minimis) prospect would suffice. Lady Poole reaffirmed that the threshold remains modest but genuine; the petitioner’s circumstances still did not meet it.
  • SM v SSHD 2022 SLT 1142. A recent Inner House case restating the two-stage paragraph 353 test; used by Lady Poole for the proper analytical framework.

3.2 The Court’s Legal Reasoning

  1. Existence of Previous Determination. A full Article 8 claim made in 2018 was: (a) considered by the SSHD in 2021, (b) appealed to the FTT and upper courts, and (c) finally dismissed in 2022. Hence, for statutory purposes, the petitioner’s human-rights claim had already been “refused” and was no longer “pending”.
  2. Operation of Paragraph 353. Once a human-rights claim is exhausted, any further representations are sifted by the SSHD under paragraph 353:
    (i) Are they significantly different? and
    (ii) Taken with prior material, do they create a realistic prospect of success?
    Only if both questions are answered “yes” does a fresh claim arise, triggering fresh appeal rights.
  3. No Fresh Claim on the Facts. Lady Poole accepted that the sexual relationship, marriage and child were new compared to 2018 submissions, but pointed out critical qualitative weaknesses:
    • Marriage occurred whilst the petitioner knew he was subject to deportation.
    • Wife (Lithuanian) left the UK in 2023 and has not returned.
    • Child was born abroad; petitioner has never met the child.
    • Entire family unit could reasonably live in Lithuania or Turkey; no insurmountable obstacles under Article 8(2).
    Therefore, the “realistic prospect” limb failed.
  4. Appeal Right Contingent on Fresh-Claim Acceptance. Following Robinson, because the SSHD rejected the submissions under paragraph 353, her decision was not “a refusal of a human-rights claim” and s. 82(1)(b) was not engaged. The petitioner’s remedy lay only in judicial review.
  5. Alleged Factual Errors Not Material. Although the decision letter mistakenly stated that the wife had been in Lithuania since “2022”, this was self-evidently a typographical error corrected in the same document. A court will not intervene for such immaterial slips.

3.3 Likely Impact of the Decision

The judgment cements Scottish consistency with the England & Wales authorities on the paragraph 353 “gateway”, providing clear guidance for:

  • Practitioners: Advisers must lodge compelling new material if they wish to generate a statutory appeal; bare invocation of Article 8 will be routed through paragraph 353 and vulnerable to quick refusal.
  • Home Office case-workers: Reinforces that a Robinson-compliant decision should (a) identify earlier determinations, (b) apply the two-limb §353 test, (c) expressly conclude on “realistic prospect”.
  • Court of Session jurisprudence: Creates an Outer-House authority confirming Robinson is binding north of the border. Future Scottish petitions will face a high hurdle to circumvent paragraph 353.
  • Article 8 deportation caseload: Relationships formed post-conviction and/or with partners residing abroad will rarely satisfy the “realistic prospect” threshold.

4. Complex Concepts Simplified

Paragraph 353 (Immigration Rules)
A procedural filter that forces repeat or “second bite” applications to clear a two-step hurdle (newness + realistic prospects) before they can be treated as a formal “claim” attracting appeal rights.
Section 82(1)(b) 2002 Act
Gives a right of appeal to the Tribunals where the SSHD “has decided to refuse a human-rights claim”. The crux of Erturk is that no such “claim” exists unless the SSHD herself accepts the further submissions as a fresh claim.
Realistic Prospect of Success
More than fanciful but less than probable chance of success. Comparable to the judicial-review threshold for arguability.
Anxious Scrutiny
The careful, fact-sensitive evaluation demanded of decision-makers and courts when fundamental rights such as Article 8 ECHR are in play.

5. Conclusion

Lady Poole’s decision in Erturk underscores a pivotal procedural rule: repeat human-rights submissions after a concluded appeal do not, in themselves, trigger a new right of appeal; that right only arises if the SSHD positively categorises the representations as a “fresh claim” under paragraph 353.

By marrying the Supreme Court’s reasoning in Robinson with Scottish authority, the case delivers certainty for both applicants and the Home Office, and signals to litigants that judicial review—rather than a renewed statutory appeal—will be the default route for challenging refusals to treat further submissions as fresh claims.

Practitioners should therefore ensure that any subsequent representations contain genuinely transformative evidence; otherwise, as in Erturk, they will be truncated at the paragraph 353 stage and subject only to the narrower, supervisory jurisdiction of the Court of Session.

Case Details

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