Robinson (formerly JR (Jamaica)) v Secretary of State for the Home Department [2019] UKSC 11

A Jamaican national facing deportation made further human rights submissions after his appeal rights were exhausted. The Supreme Court held that such submissions must first be accepted as a fresh claim under rule 353 of the Immigration Rules before any right of appeal arises under section 82.

Facts

The appellant, Mr Jamar Robinson, a Jamaican national born in 1991, arrived in the United Kingdom in 1998 aged seven and remained without leave after April 1999. Following a series of criminal convictions, including robbery and violent disorder, he was served with a deportation order on 17 July 2013. His appeal, based on article 8 private life grounds, was dismissed and his appeal rights were exhausted on 1 May 2015.

On 13 May 2015 his solicitors made further submissions centred on his partner’s pregnancy. The Secretary of State, by letter of 23 June 2015, refused to revoke the deportation order and decided the submissions did not amount to a fresh human rights claim under rule 353 of the Immigration Rules. Following the birth of the appellant’s son (a British citizen) on 26 July 2015, further submissions were made on 28 July 2015. By letter of 31 July 2015 the Secretary of State again concluded that deportation would not breach article 8 and that the submissions did not amount to a fresh claim.

The First-tier Tribunal declined jurisdiction, holding there was no right of appeal. Judicial review was refused by the Upper Tribunal and the Court of Appeal dismissed the appellant’s appeal.

Issues

The central question was: where a person has already had a protection or human rights claim refused and there is no pending appeal, must further submissions relying on protection or human rights grounds be accepted by the Secretary of State as a fresh claim under rule 353 of the Immigration Rules before a decision in response can attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014)?

Arguments

Appellant

Mr Fordham QC advanced two essential submissions. First, the Onibiyo line of authority, which treated it as for the Secretary of State to decide whether further submissions constituted a fresh claim giving rise to appeal rights, did not survive the Supreme Court’s decision in BA (Nigeria), such that rule 353 no longer had any role. The narrower reading of BA (Nigeria) adopted by Lord Neuberger MR in ZA (Nigeria) should be rejected. Secondly, the 2014 Act amendments abrogated the rule 353 control mechanism: any second or subsequent submission that was a “human rights claim” within section 113(1) attracted a right of appeal under section 82, subject only to certification under sections 94 and 96.

Respondent

Sir James Eadie QC submitted that BA (Nigeria) decided only that rule 353 had no part to play for the purposes of section 92(4)(a) once there was an appeal against an immigration decision; it did not determine that the Secretary of State could not decide the prior question whether submissions constituted a claim at all. The 2014 amendments had not changed that position: there would only be a claim to be determined if further submissions were considered to amount to a fresh claim.

Judgment

Lord Lloyd-Jones, with whom Lady Hale, Lord Wilson, Lady Black and Lady Arden agreed, dismissed the appeal.

The Onibiyo line of authority

The court traced the authorities from R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768, through Cakabay, to WM (DRC) and ZT (Kosovo). These established that it was for the Secretary of State to decide whether further submissions amounted to a fresh claim; where she rationally decided they did not, there was no claim to determine, no appealable decision, and challenge lay only by judicial review on Wednesbury grounds applying anxious scrutiny.

BA (Nigeria) and ZA (Nigeria)

The court preferred the narrower reading of BA (Nigeria) adopted by Lord Neuberger MR in ZA (Nigeria): rule 353 has no part to play once there is an appealable immigration decision, but it continues to govern the prior question whether there is a claim at all. Lord Lloyd-Jones gave four principal reasons. First, there was no real conflict between Onibiyo/rule 353 and the statutory scheme; they operate at different stages. Secondly, sections 94 and 96 did not render rule 353 redundant: rule 353 operates as a gatekeeper determining whether there is a claim at all, whereas section 94 presupposes a claim which has been considered on its merits. Thirdly, features of the regulatory framework—including the continued existence of rule 353, subsequent amendments preserving it, and section 53 of the Borders, Citizenship and Immigration Act 2009, which would be meaningless absent rule 353—showed Parliament treated rule 353 as continuing to operate. Fourthly, the broad reading would be inconsistent with ZT (Kosovo), decided only months before BA (Nigeria), which BA (Nigeria) did not purport to overrule.

The 2014 amendments

The court rejected the submission that the 2014 amendments abrogated rule 353. Although section 82 now confers rights of appeal in respect of refused protection and human rights claims without reference to a prior list of “immigration decisions”, the concept of a “claim” remains central. The amended statute does not address the prior question whether further submissions amount to a claim; this continues to be governed by the Onibiyo line of authority and rule 353. Parliament is presumed to legislate in the light of existing authority, and particularly the authoritative explanation of BA (Nigeria) in ZA (Nigeria). Had Parliament intended to depart from that settled position, clear provision would have been made. The fact that section 12 of the Immigration, Asylum and Nationality Act 2006 (which would have expressly excluded non-fresh claims) has never been brought into force did not assist the appellant; the court must construe the legislation as enacted.

Conclusion

The court concluded that “a human rights claim” in section 82(1)(b) of the 2002 Act as amended means an original human rights claim or a fresh human rights claim within rule 353. Where a person has already had a protection or human rights claim refused and no appeal is pending, further submissions must first be accepted by the Secretary of State as a fresh claim under rule 353 before any decision on them can attract a right of appeal under section 82.

Implications

The judgment authoritatively confirms the continued gatekeeper role of rule 353 in the amended statutory appeals regime. For practitioners advising individuals whose protection or human rights claims have been refused and whose appeal rights are exhausted, the decision means that further submissions will generate a statutory right of appeal only if the Secretary of State accepts them as a fresh claim under rule 353. Otherwise, the only route of challenge is judicial review on Wednesbury grounds applying anxious scrutiny.

The decision resolves the tension between the broader language in BA (Nigeria) and the narrower approach in ZA (Nigeria), affirming the latter. It also confirms that the 2014 Act did not dismantle the rule 353 mechanism, despite the restructuring of appeal rights. The ruling preserves an administrative filter designed to prevent abuse through repeated unmeritorious claims while retaining judicial review as a safeguard.

The judgment is limited to the question of when a right of appeal under section 82 arises in relation to further submissions; it does not affect the substantive legal tests for asylum or human rights protection. Lord Lloyd-Jones concluded by noting the considerable complexity of the immigration legislation and welcoming the Law Commission’s consultation on simplifying the Immigration Rules, observing that there is an urgent need to make the law and procedure in this field clearer and more comprehensible.

Verdict: Appeal dismissed. The Court of Appeal was correct to hold that “a human rights claim” in section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (as amended) means an original human rights claim or a fresh human rights claim within rule 353 of the Immigration Rules. Where a protection or human rights claim has already been refused and no appeal is pending, further submissions must first be accepted by the Secretary of State as a fresh claim under rule 353 before any decision on them can attract a right of appeal under section 82.

Source: Robinson (formerly JR (Jamaica)) v Secretary of State for the Home Department [2019] UKSC 11