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Tribunal sticks to its guns on Waqar, fresh claims and appeals

The tribunal is sticking to its guns on whether a human rights claim must meet the paragraph 353 test for fresh claims in order to give rise to a right of appeal:

1. Notwithstanding the amendments brought about by the Immigration Act 2014 to the types of decisions appealable under s82 of the Nationality, Immigration and Asylum Act 2002, para 353 of HC395 continues to perform a gateway function in respect of access to a right of appeal. Arguments to the contrary, founded upon dicta in BA (Nigeria) v SSHD[2009] UKSC 7, are misconceived because, as explained in ZA (Nigeria) v SSHD [2010] EWCA Civ 926, in BA (Nigeria) immigration decisions (of a type that no longer give rise to a right of appeal) had been made so that there was, on that account, a right of appeal.

2. The argument now advanced, which was not considered by the Upper Tribunal in R (Waqar) v SSHD (statutory appeals/paragraph 353) IJR [2015] 00169 (IAC), founded upon the amendment to the definition of “a human rights claim” found at s113 of the 2002 Act, provided for by the Immigration, Asylum and Nationality Act 2006 but not yet implemented, is no basis for doubting that Waqar is correctly decided.

3. Where the respondent rejects further submissions and goes on to conclude that they do not amount to a fresh claim for the purposes of para 353 of HC 395, it is not implicit that the respondent has made a decision to refuse a human rights claim. Properly understood, the respondent has done precisely the opposite and has declined to make a decision at all. To the extent that the respondent has embarked upon an examination of the merits of the further submissions, she is not making a decision but doing no more than equipping herself to follow the para 353 process.

I still think the tribunal is wrong on this. Time will tell.

Source: Robinson, R (on the application of) v Secretary of State for the Home Department (paragraph 353 – Waqar applied) (IJR) [2016] UKUT 133 (IAC) (16 February 2016)

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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