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Important Judgment on the application of rule 353 of the Immigration Rules to Human Rights and Protection Claims

DATE: 04 May 2017

The Court of Appeal has, today, dismissed an appeal which sought to challenge the continued application of rule 353 of the Immigration Rules to further human rights submissions. In R (Robinson) v SSHD [2017] EWCA Civ 316, the Appellant argued that amendments made in the Immigration Act 2014 to the appeal rights contained in section 82 of the Nationality Immigration and Asylum Act 2002 (’NIAA 2002’) made rule 353 redundant in assessing whether a right of appeal arose from a decision to reject further submissions on a human rights or protection claim. The Appellant argued that a decision by the Secretary of State to refuse to treat further submissions as a fresh claim was a refusal of “a human rights claim” and, therefore, an appealable decision under section 82 of the NIAA 2002. 

The Court of Appeal (Jackson LJ, Flaux LJ, and Hamblen LJ) rejected that argument and found that the 2014 Act amendments made no difference to the application of rule 353 of the Immigration Rules. It held that the Court’s previous judgment in ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926 was applicable to the post-2014 Act appeal scheme and binding on the Court.

The judgment settles an issue that has troubled the Upper Tribunal on a number of occasions, including in R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 00169 (IAC) and in R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC). Although the UT had consistently reached the same answer as the Court of Appeal, the Vice-President of the Tribunal expressed doubts about the correct approach in Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC) and sought an authoritative statement from the Court of Appeal. It is hoped that Robinson settles the matter.  

David Blundell and Toby Fisher appeared for the Secretary of State.