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The Upper Tribunal has, today, dismissed an application for judicial review which sought to challenge the continued application of rule 353 of the Immigration Rules. The Claimant argued that the 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’) extinguished the Secretary of State’s power to make a categorisation decision (a power previously recognised in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768; Cakabay v Secretary of State for the Home Department (Cakabay No 2) [1998] Imm AR 176; and ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926)? The Claimant argued that a decision by the Secretary of State to refuse to treat further submissions on a human rights claim 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 Tribunal (Dove J and UTJ Lane) 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 of Appeal’s judgment in ZA (Nigeria) was applicable to the post-2014 Act appeal scheme and therefore binding on the Tribunal. This was the third time the Upper Tribunal has considered the same question, having previously addressed it 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 (Robinson) v Secretary of State for the Home Department [2016] UKUT 00133 (IAC). Notwithstanding the fact that the submissions received in Hussein "delved more deeply and widely than appears to have been the case with the arguments put to the Tribunal in Waqar and Robinson” the Tribunal reached the same conclusion as in those previous cases. Hussein, it appears, is the UT’s final word on the subject. Toby Fisher appeared for the Secretary of State for the Home Department.
