BA (Nigeria) judgment

Following on from my earlier alerter post, I’ve now had time to properly read and start digesting the Supreme Court judgment in BA (Nigeria) v SSHD [2009] UKSC 7.

It is certainly good news in terms of streamlining and ensuring that there is proper protection available to those who make a human rights claim. Essentially, the Court holds by a majority (Baroness Hale dissenting) that where a human rights claim is made it will always generate an in-country right of appeal if it generates a right of appeal at all. I will return to the italics below. This is because section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 means what it says on the face of the statute: an appeal where an asylum or human rights claim has been raised is an in-country appeal. Their Lordships reject the argument that further words should be read into the section along the lines of ‘as long as the Secretary of State agrees that it is a fresh asylum or human rights claim as defined in immigration rule 353′.

See this earlier post for more explanation of fresh claims for asylum and immigration rule 353.

However, the judgment in BA (Nigeria) does not seem to mean (comments on this most welcome) that there will always be an in-country right of appeal against refusals of fresh claims. This is because UKBA is not obliged to make any appealable immigration decision at all in most circumstances. Say you have made a failed claim for asylum. Country conditions change for the worse and you make a fresh claim. If there is a right of appeal, it will be an in-country right. But for most, there will be no right of appeal at all because UKBA only makes an appealable immigration decision where the immigration rule 353 test is met.

The situation is different for those who are in a position for effectively force an appealable immigration decision: those with an outstanding old-style deportation order against them, for example. If they apply for revocation, this will force UKBA to refuse to revoke a deportation order, which is an appealable decision listed at s.82(2)(k). Those with a deportation against them are therefore in this particular respect in a better position than those simply present unlawfully in the UK.

I haven’t quite gotten my head around whether the same applies to new-style automatic deportations. I don’t think one normally makes an application to revoke the deportation order as such, and the decision under appeal is not s.82(2)(k) but rather the new s.83(3A) inserted by the UK Borders Act 2007. Nevertheless, if this ever did arise in practice that surely is an appeal in which a human rights claim has been raised and would therefore always be an in-country right of appeal.

UKBA still have the means to prevent abuse of this protection by, for example, a person making repeat claims for asylum based on the same facts. Such an appeal can be certified under s.94 or s.96, both of which curtail appeal rights.

Lastly, as Samantha Knights observes in an interesting new blog, the judgment may not last long as the relevant law may change at any time.