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Robinson v Secretary of State for the Home Department  UKSC 11: meaning of the word ‘claim’ in section 82 of the NIAA 2002
In the case of Robinson the Supreme Court dealt with an issue of statutory construction namely the meaning of the word ‘claim’ for the purposes of section 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). The central submission of the Appellant in this case was that the Immigration Act 2014 amendments to Part 5 of the 2002 Act rendered rule 353 of the Immigration Rules redundant. The Supreme Court did not accept that submission.
Mr Robinson was represented by Duncan Lewis Solicitors who instructed Michael Fordham QC of Blackstone Chambers, Ronan Toal of Garden Court Chambers and Catherine Robinson of One Pump Court Chambers.
Mr Robinson is a national of Jamaica and came to the UK aged 7 in 1998. He was given leave to enter for 6 months and remained in the UK without leave thereafter. His aunt applied for indefinite leave to remain (‘ILR’) in 2005 under the ‘family exercise’ and Mr Robinson was a dependent to that application.
Mr Robinson was convicted of a number of robberies and these triggered deportation proceedings against him. He was given notice of liability to deportation and given the opportunity to make representations which he duly did. A deportation order was signed against him but he was given a right of appeal to the First-tier Tribunal (‘FTT’). He lodged an appeal and that appeal was based on his Article 8 private life. That appeal was dismissed and his appeal rights exhausted on 1 May 2015.
Mr Robinson, first through his representatives and then himself made further representations on 13 May 2015 and 28 July 2015. In those representations Mr Robinson informed the Secretary of State first that his then girlfriend was pregnant and due to give birth on 28 July 2015 and later that his girlfriend had given birth to his son on 26 July 2015. Both those representations were treated as applications to revoke a deportation order and were refused. Crucially the Secretary of State decided that they did not amount to a fresh claim under rule 353. These decisions were made on 23 June 2015 and 31 July 2015 respectively.
On 18 July 2015, the Secretary of State served removal directions on Mr Robinson scheduled for 9 August 2015. Mr Robinson’s solicitors lodged an appeal on 5 August 2015. The FTT declined jurisdiction on 7 August 2015 on the basis that the 31 July 2015 decision did not give rise to a right of appeal. Mr Robinson then lodged an application for judicial review on 7 August 2015 and his removal was deferred.
Mr Robinson’s central argument was that the FTT had been wrong to decline jurisdiction as the Secretary of State’s decisions did give rise to a right of appeal. This was based on the Supreme Court case of R (on the application of BA (Nigeria)) v Secretary of State for the Home Department  1 A.C. 444 (‘BA (Nigeria)’) where the Supreme Court found that a rule 353 decision by the Secretary of State had no effect in determining whether a ‘claim’ had been made for the purposes of section 92(4)(a) of the 2002 Act as it then was. Both the Upper Tribunal hearing the judicial review and the Court of Appeal did not accept this argument. A further appeal was lodged to the Supreme Court and permission was granted on 10 April 2018.
Lord Lloyd Jones gave the judgment of the Supreme Court and held that the FTT had not been wrong to decline jurisdiction and that the Secretary of State’s decisions did not give rise to a right of appeal. There were three strands to Lord Lloyd Jones’ reasoning to his judgment.
The first strand was that rule 353 did continue to play a role in determining entitlement to a right of appeal after BA (Nigeria) for essentially the same reasons as given by Lord Neuberger in R (on the application of ZA (Nigeria)) v Secretary of State for the Home Department  Q.B. 722 (‘ZA (Nigeria)’). Those reasons are that BA (Nigeria) involved a case where a right of appeal had already been established and the question for the Supreme Court then was whether that appeal would be in country or out of country. It did not deal with the question of whether a right of appeal existed at all and the role that rule 353 played in that sense. Lord Lloyd Jones added that the argument that before the 2002 Act there was a need for rule 353 because there were no certification powers is misconceived as there were certification powers even in the predecessor legislation. He also added that rule 353 does have a useful role to play. Section 94 of the 2002 Act only blocks an appeal from being in country whereas rule 353 stops an appeal from being brought altogether. Section 96 only stops an appeal from being brought if the ground relied upon could have been raised in an earlier appeal whereas rule 353 is not limited to that ground alone.
The second strand was that the Immigration Act 2014 amendments to Part 5 do not impact rule 353’s continued role in determining a person’s entitlement to an appeal. This is because the fact that the list of decisions which give rise to an appeal has changed does not mean the structure of section 82 has changed. Lord Lloyd Jones puts it as follows at paragraph 60:
The appellant is not assisted by the fact that under the amended section 82 there is no longer a requirement to establish an “immigration decision” within the list previously set out in section 82(2). In fact, the contrary is the case. A decision to refuse to revoke a deportation order was formerly an “immigration decision” under section 82(2)(k) and therefore gave rise to an in-country right of appeal, subject to the possibility of certification, but this is no longer the case. The 2014 amendments limit immigration appeals to circumstances in which there has been a refusal of a protection claim or a human rights claim, or where protection status has been revoked. (For present purposes I will concentrate on human rights claims.) However, the structure and operation of section 82 remain unchanged. Under the amended section 82(1) a person may appeal to the tribunal where the Secretary of State has decided to refuse a human rights claim made by him, but this does not relieve that person of the burden of establishing that the refusal was in response to a valid claim. The definitions in Part 5 do not address this question and the answer will depend on the application of the Onibiyo line of authority. Onibiyo, Cakabay, ZA (Nigeria) and VM (Jamaica) establish that there will only be a human rights claim to be determined if further submissions are considered to amount to a fresh claim. Rule 353, in turn, is directed at the manner in which a court should approach that prior question. Under the post-2014 provisions it remains the case that if there is no claim, there is no appealable decision.
The third strand is that Parliament’s intention in enacting Part 5 of the 2002 Act and in making the amendments to Part 5 in the Immigration Act 2014 was not to eliminate the role rule 353 plays in determining whether a right of appeal exists. Lord Lloyd Jones found support for this in the fact that Parliament has not repealed or amended rule 353 since introducing Part 5 of the 2002 Act, that Parliament has approved subsequent amendments of the Immigration Rules which included rule 353, that Parliament enacted section 53 of the Borders, Citizenship and Immigration Act 2009 which is on the express basis that rule 353 is still in force and finally that rule 353 has been amended to take account of the 2014 Act amendments to Part 5.
The point raised by the Appellant in this case was a difficult one. I suspect that judges acutely aware of the principle of finality of litigation would have found it hard to approve a system which allowed a person to bring claim after claim on the same basis and possibly on the same evidence and for that to give rise to an appeal each time with the consequent delay that it would have on the final resolution of the claim. The answer of the Appellant of course was that the Secretary of State has a range of certification powers to guard against abuse and a further remedy against this lies in bringing into force section 12(3) of the Immigration, Asylum and Nationality Act 2006 which would have amended the statutory definition of human rights claim to only include second claims which passed the rule 353 threshold.
However I think the judgment misunderstood the Appellant’s case and failed to deal with it properly. The Appellant’s case was that whether or not a claim had been made did not matter when Part 5 was originally brought into force because what generated a right of appeal was not whether a valid claim had been made but in fact whether a relevant immigration decision had been made by the Secretary of State. Therefore the interpretation posited by the Appellant of ZA (Nigeria) was that the role of rule 353, once Part 5 was originally brought into force, was that it was the mechanism by which the Secretary of State would decide whether to make a relevant immigration decision which would trigger a right of appeal. Therefore reference in paragraph 60 of the judgment of ‘under the post 2014 provisions it remains the case that if there is no claim, there is no appealable decision’ misunderstands the fact that whether or not something amounts to a claim is not what triggered a right of appeal before the 2014 Act amendments but whether a relevant immigration decision had been made. The case really centers on the correct interpretation of ZA (Nigeria).
The judgment also fails to deal with the issue that ‘claim’ for the purposes of section 82 seemingly now has a dual meaning because rule 353 does not apply to human rights claims made overseas. This was a point raised at the hearing but it is conspicuously absent from the judgment.
This long running series of litigation on this point has come to a conclusion on a shaky foundation. For Mr. Robinson it means that he has no right of appeal to the decisions made in 2015 but it is open to him to put forward further submissions and engage with the rule 353 process.
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