Upper Tribunal Establishes Right of Appeal in Refusal of Human Rights Claims under s.82(2)(a) of the Nationality, Immigration and Asylum Act 2002

Introduction

The case of Sheidu v. Secretary of State for the Home Department ([2017] Imm AR 179) before the Upper Tribunal (Immigration and Asylum Chamber) addresses critical issues arising from amendments to the Nationality, Immigration and Asylum Act 2002 introduced by the Immigration Act 2014. The appellant, Mr. Sheidu, contested the refusal of his human rights claim and protection claim, challenging the decision not to treat his submissions as a fresh claim. Central to the case are the interpretations of s.82(2)(a) concerning appeal rights and the applicability of paragraph 353 of the Immigration Rules in determining fresh claims.

Summary of the Judgment

The Upper Tribunal examined whether the decision to refuse Mr. Sheidu’s human rights claim amounted to an appealable decision under s.82(2)(a) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014. The Tribunal analyzed the definitions and interplay between protection claims, human rights claims, and fresh claims under paragraph 353 of the Immigration Rules. It concluded that the Secretary of State’s refusal of the human rights claim did constitute an appealable decision, thereby allowing Mr. Sheidu's appeal to proceed. The Tribunal emphasized that, despite the considerations under paragraph 353, the refusal under s.82(2)(a) retains its standalone significance, ensuring that appellants retain their right to appeal against such rejections.

Analysis

Precedents Cited

The judgment extensively references several pivotal cases that have shaped the interpretation of appeal rights in the context of immigration and asylum law:

R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768: Established that there was no statutory right of appeal against the refusal to treat submissions as a fresh claim under paragraph 353.
R (WAQAR) v SSHD [2015] UKUT 169: Denied permission to appeal, reinforcing the stance from Onibiyo.
R (Robinson) v SSHD [2016] UKUT 133: Continued the interpretation challenging the dichotomy between appealable decisions and mere refusals to treat submissions as fresh claims.
R (MG) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 283: Rejected the argument that the classification of a claim as "fresh" should preclude appeal rights.
R (Amin Sharif Hussein) v First-tier Tribunal and SSHD [2016] UKUT 409 (IAC): Affirmed that the Secretary of State’s power to determine the nature of claims under paragraph 353 survives the 2014 amendments.
R (BA (Nigeria)) v SSHD and R (ZA (Nigeria)) v SSHD: Clarified that paragraph 353 does not apply where an appealable decision has been made, maintaining the right to appeal against such decisions.
ZT (Kosovo) v SSHD [2009] UKHL 6: Established foundational principles regarding the classification of decisions and appeal rights under paragraph 353.

Legal Reasoning

The Tribunal’s legal reasoning hinges on interpreting s.82(2)(a) in conjunction with paragraph 353 of the Immigration Rules. The key issue was whether the Secretary of State’s refusal to recognize further submissions as a fresh claim effectively nullified the appellant’s right to appeal.

The Tribunal analyzed whether additional submissions after an unsuccessful claim should be treated strictly under paragraph 353 or whether the refusal of a human rights claim under s.82(2)(a) inherently carries an independent right of appeal. Drawing from the cited precedents, particularly the Supreme Court decision in R (BA (Nigeria)) v SSHD, the Tribunal concluded that when a decision falls within the purview of s.82(2)(a), it constitutes an appealable decision regardless of any supplementary considerations under paragraph 353.

The Tribunal also considered the letter’s structure, noting that the initial sections addressed the human rights claim directly, indicating an appealable decision, while subsequent references to paragraph 353 pertained to the classification of further submissions, not to overwrite the established appeal rights under s.82(2)(a).

Impact

This judgment has significant implications for future cases involving the refusal of protection or human rights claims. It clarifies that even when the Secretary of State refuses to treat additional submissions as fresh claims under paragraph 353, such refusals under s.82(2)(a) still allow appellants to exercise their right to appeal. This ensures that appellants retain access to judicial review mechanisms and prevents the potential undermining of appeal rights through administrative classifications of claims. Additionally, the judgment underscores the necessity for clear distinctions between different types of decisions and claims within the immigration judicial framework.

Complex Concepts Simplified

Fresh Claim

A "fresh claim" under paragraph 353 refers to submissions made by an appellant that present new material significantly different from what has been previously considered. For these to qualify as fresh, the new content must not have been examined before and should provide a realistic prospect of success.

Human Rights Claim

A "human rights claim" involves asserting that removal from the UK would violate the individual's Convention rights under the European Convention on Human Rights (ECHR). This could involve rights to private and family life, freedom from inhuman treatment, and other protected interests.

s.82(2)(a) of the Nationality, Immigration and Asylum Act 2002

Section 82(2)(a) provides individuals with the right to appeal when the Secretary of State refuses their protection or human rights claims. This section outlines the definitions and conditions under which such appeals can be lodged, ensuring that appellants have access to judicial review in cases of adverse decisions.

Paragraph 353 of the Immigration Rules

Paragraph 353 deals with the procedure and rights of appeal concerning fresh claims. It stipulates that after a claim has been refused or treated as withdrawn, the decision-maker must evaluate any further submissions to determine if they constitute a fresh claim based on their significance and potential success.

Conclusion

The Upper Tribunal’s decision in Sheidu v. Secretary of State for the Home Department reaffirms the autonomy of appellants to challenge refusals of protection and human rights claims under s.82(2)(a), despite the operational mechanisms provided by paragraph 353 of the Immigration Rules. By distinguishing between appealable decisions and the classification of submissions as fresh claims, the Tribunal ensures that the rights of individuals facing removal are adequately protected. This judgment not only clarifies the scope of appeal rights post-Immigration Act 2014 amendments but also strengthens the procedural safeguards for appellants in the UK immigration system.