Paragraph 353 is the Gateway to Human Rights Appeals

R (Waqar) v SSHD (statutory appeals/paragraph 353) (IJR) [2015] UKUT 169 (IAC) (25 March 2015)

This case exposes the conflict inherent in the system of appeals. Waqar argued that paragraph 353 of the Immigration Rules had been subsumed within the statutory provisions of the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. He entered the UK in 2007 (aged 13) and in 2008 he was convicted of five counts of raping a boy (aged 7). Apparently, his crimes stretched over dozens of separate incidents and he repeatedly raped his victim. But Waqar appealed the decision to make a deportation order against him. He lost the appeal and the order was signed on 24 June 2014. However, not long before that, Waqar contracted an Islamic marriage in November 2012. It produced two children – in August 2013 and July 2014 – and a third child is expected. The matter of Waqar’s conviction is under review by the Criminal Convictions Review Committee. Coker and Kebede UTJJ’s judgment in the tribunal has already been dubbed “arguably dubious” because it inhibits the “new” species of human rights claim by making it fit the straitjacket of a “fresh claim” within the meaning of paragraph 353.

The unsavoury facts and the controversial path taken by the tribunal are only one side of coin and the cryptic legislative provisions involved make Waqar’s case challenging reading. In an attempt to mitigate confusion, Appendix B of the decision provides a tabular comparison of the old (Nationality, Immigration and Asylum Act 2002 in force immediately prior to the commencement of the Immigration Act 2014) and the new versions of the provisions engaged in the matter. Coker and Kebede UTJJ’s judgment also establishes that the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014 – SI 2014/2928, made in consequence of defects in SI 2014/2771, or the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014) – brings those whose deportation decision (including a decision to refuse to revoke a deportation order) was made after 10 November 2014 into the new legislative regime irrespective of when they were convicted of a criminal offence.

Context

Following the rejection of the claim, for failure to meet the test in paragraph 353, removal directions for 9 December 2014 were stayed as a result of judicial review proceedings. Prior to that, in July 2014, Waqar applied for the revocation of his deportation order and advanced a fresh claim. Made in mid and late September 2014, the decisions as regards the revocation of the deportation order asserted that no right of appeal arose because Waqar failed to meet the test in paragraph 353. Permission for judicial review was granted on the sole ground that the 2014 Act (as it amends the 2002 Act) arguably meant that if a human rights claim is raised it must, absenting certification, attract a right of appeal and that paragraph 353 does not operate as a filter (or “gateway”) to an appeal right.

That argument was ultimately rebuffed because Coker and Kebede UTJJ found that paragraph 353 does operate as a gatekeeper preventing an appeal right. They refused permission to appeal to the Court of Appeal.

Albeit unsuccessfully, Waqar submitted that:

  • as presently defined by section 82 of the 2002 Act, in the absence of certification under sections 94 or 96, the right of appeal enables all refused human rights claims to be appealed;
  • there is no requirement for “categorisation”; instead, in its amended form section 82 means that the Home Office does not have to make a separate immigration decision but is limited to consideration of whether removal would breach ECHR rights;
  • once a human rights claim is made, then statute determines that a claimant is entitled to a right of appeal; but the Home Office retains control over the location from which such right of appeal may be exercised;
  • the deportation provisions of the 2014 Act only affected persons who became foreign criminals as defined by section 117D of the 2002 Act on or after 20 October 2014, i.e. persons convicted after 20 October 2014; and
  • both SI 2014/2928 and SI 2014/2771 looked forward and the only way to read them harmoniously was to operate them in relation to those who had become foreign criminals after 20 October 2014.

Case Law Analysis

Relying on BA (Nigeria) [2010] 1 AC 444, Waqar argued that his human rights claim did not need to demonstrate traction with paragraph 353 and, in the absence of certification, the claim must attract a right of appeal. For him, ZT (Kosovo) [2009] UKHL 6 and ZA (Nigeria) [2010] EWCA Civ 926 rested on the “old” construction of statute and the rules (as in force prior to the commencement of the 2014 Act) whereby a human rights claim did not in itself give rise to a right of appeal but instead the Home Office was obliged to consider whether or not to make an immigration decision which would then attract a right of appeal – conditioned, of course, by the safeguarding provisions in sections 94 and 96 of the 2002 Act as regards abusive or unmeritorious claims.

Conversely, the Home Office did not accept that ZT (Kosovo) and ZA (Nigeria) aided the argument that paragraph 353 no longer captured cases such as Waqar’s. Instead, it maintained that paragraph 353 applied and facilitated the categorisation of submissions. Accordingly, an appeal arose only if the submissions were categorised as a claim that had been refused.

Insight was gained into the dispute by examining immigration cases from the 1990s. The tribunal recalled that in Onibayo [1996] EWCA Civ 1338, Sir Thomas Bingham MR (as he then was) rejected the proposition that an asylum claim could only be made once. The Court of Appeal held that claimants could make “fresh” claims for asylum and paragraph 346 was introduced into the rules. In considering the provision, in Cakabay [1998] EWCA Civ 1116, evaluating the need for categorisation, Schiemann LJ (as he then was) observed that a breach of a state’s obligation created disastrous consequences for the individual. Because the Asylum and Immigration Appeals Act 1993 (which prohibited removal of those with a pending asylum claim or appeal) was silent on multiple claims by the same claimant, the court observed that a repetitious claim could readily be distinguished from a fresh claim. Even the parties agreed that the latter attracted all the substantive and procedural consequences of an initial claim whereas the former did not.

In ZT (Kosovo), the House of Lords considered paragraph 353, paragraph 346’s successor, and it held that where a claim was certified under section 94 of the 2002 Act and an applicant or appellant remained in the UK the Home Office owed a continuing duty to consider further submissions in accordance with paragraph 353. In particular, Lord Phillips of Worth Matravers (as he then was) held at para 15 that the Refugee Convention 1951 and the Human Rights Act 1998 left the authorities “no alternative”.

Not long afterwards, Lord Hope of Craighead (as he then was) held in BA (Nigeria) that the mere fact that a human rights claim had been made and refused enabled the appeal to be suspensive. The Supreme Court took the view that BA – who appealed against a decision to refuse to revoke a deportation order and whose claim was not found to be abusive or unmeritorious – should not be made to cross a further hurdle by having to meet the test set out in paragraph 353.

Subsequently, in ZA (Nigeria), Lord Neuberger of Abbotsbury MR (as he then was) held at para 52 that the reasoning in BA (Nigeria) was at one with the rationale in ZT (Kosovo) and that “[t]he actual decision was that rule 353 had no further part to play for the purposes of section 92(4)(a) once there was an appeal against an immigration decision.” On that occasion, Lord Neuberger viewed with some suspicion the argument that BA (Nigeria) ought to be construed dynamically so the binding ratio should be read to render paragraph 353 “effectively a dead letter.”

Whilst Lord Neuberger said that the court “might very well otherwise have accepted” the approach, he nonetheless rejected the point on the basis that “it is plainly inconsistent with the reasoning and conclusion of the House of Lords in ZT (Kosovo).” Lord Neuberger felt that unless BA (Nigeria) was “pellucidly clear … that the reasoning and conclusion in ZT (Kosovo) was being overruled” he had no other option but to dismiss the appeal. The court, however, felt that once an appealable immigration decision is taken “the complete code contained in the legislative scheme applies and rule 353 has no part to play.” On the other hand, Lord Neuberger subjected this reasoning to the proviso in ZT (Kosovo) and his Lordship held at para 59 that:

rule 353 still has “a part to play”: the Secretary of State can decide that the further submissions are not a “fresh claim”, in which case one does not enter the territory governed by the “complete code” of “the legislative scheme.”

Upper Tribunal’s Reasoning

For Coker and Kebede UTJJ, the “two systems” laid down in paragraph 353 and the legislative framework existed “alongside each other”. Accordingly, amendments to the 2002 Act via the 2014 Act as of 20 October 2014 did not affect paragraph 353 notwithstanding wholesale changes to other areas of the rules. Indeed, the cessation of application of the procedure under paragraph 353 would have been amplified in the amendments to the rules. The argument that the legislative scheme had impliedly repealed paragraph 353, which was of no effect, was roundly rejected and the tribunal held that:

16. The current appeal scheme enables an appeal against a decision by the SSHD refusing the applicant’s human rights claim. There has to be a claim and then a decision in order to enable an appeal. The current scheme no longer enables an appeal against a decision refusing to revoke a deportation order. The SSHD may, having decided to refuse a human rights claim, thereafter decide whether to invoke the certification process. Without a claim (and without a decision) there is no appeal.

According to Coker and Kebede UTJJ, the case law on paragraph 353 did not support Waqar’s arguments. Both BA (Nigeria) and ZT (Kosovo) involved actual decisions and ZA (Nigeria) clarified that there was no obligation to issue an appealable immigration decision whenever further submissions were made. In light of the above, the tribunal took the view that Waqar’s claim for judicial review failed because:

  • the belief that any submission made amounts to a claim, which generates an appealable decision, results in the ability to make multiple consecutive claims giving rise to numerous consecutive appeals; whilst each appeal could be certified, the mere existence of such a scenario makes it virtually impossible to reach finality;
  • BA (Nigeria) is not authority for the proposition that submissions amount to a claim and that the response to those submissions is a decision within the meaning of Part 5 of the 2002 Act; the current statutory framework continues to provide for unmeritorious claims to be certified; there is nothing in this framework that precludes the making of a categorisation decision; paragraph 353 remains in force;
  • the current statutory appeal context requires a decision to be made on a human rights claim; without a claim and without a decision there is no appeal; submissions that purport to be a human rights claim do not without more trigger a right of appeal; there has to be an intermediate step, a categorisation, namely “do the submissions amount to a claim at all”; paragraph 353 provides the mechanism to determine whether they amount to a claim; if not then the decision does not amount to a decision to refuse a human rights claim;
  • an applicant aggrieved by a decision not to categorise submissions as a claim has a remedy in judicial review proceedings; where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim; if determined to be a claim the decision to refuse that claim will trigger a right of appeal, subject to certification; if the submissions are determined not to be a claim, as in the instant case, there is no decision and thus no right of appeal.

Summary Guidance

In other words:

1. The current statutory appeal regime requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal.

2. Where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim. Paragraph 353 of the Immigration Rules provides the mechanism to determine whether they amount to a claim the refusal of which enables a right of appeal.

3. Commencement Order 2014/2928 brings those whose deportation decision (which includes a decision to refuse to revoke a deportation order) was made after 10 November 2014 into the statutory scheme in the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014, irrespective of when they were convicted of a criminal offence.

Comment

So ultimately not every human rights claim acquires an automatic right of appeal under the 2014 Act and the novel statute did not help Waqar because his submissions were determined not to be a claim and there was no decision in his case and he therefore had no right of appeal. Under the current scheme of things he could not appeal against a decision refusing to revoke his deportation order (as the right to appeal such a decision no longer exists).

Quite a few people speculated that the 2014 Act might expand the number of human rights appeals because (at least on the face of it) the new version of section 82 allows a right of appeal to the tribunal where a human rights claim has been refused. However, the theory amounted to little more than wishful thinking for Waqar, a case that could be the opening delivery in a series of menacing reverse swinging Yorkers that squarely put the game in the Home Office’s hands. With the rest of the over remaining (at least five more deliveries assuming that no wides or no balls are bowled), we can only hang onto our seats with excitement in relation to what the future beholds …

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appeals, Crime, Deportation, ECHR, Immigration Act 2014, Immigration Rules and tagged , , , , . Bookmark the permalink.

4 Responses to Paragraph 353 is the Gateway to Human Rights Appeals

  1. mkp says:

    For non cricket types, that is Waqar Younis (the Sultan of Swing) bowling to G Hick …

  2. mkp says:

    Apparently the case of Waqar is “under appeal” ….

  3. mkp says:

    An appeal for LBW?

  4. The Court of Appeal refused permission at an oral hearing sub nom HW (Afghanistan)

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