Sheidu (Further submissions; appealable decision: Sudan)

Citation

[2016] UKUT 412 (IAC)

The Appellant successfully appealed a determination of the First-Tier Tribunal declining jurisdiction to hear an appeal against a refusal of further human rights submissions, where the SSHD had concluded that those further submissions did not amount to a “fresh claim”. The Upper Tribunal held that if the SSHD makes a decision that is one of those specified in s 82(1) Nationality, Immigration and Asylum Act 2002, it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim.

The SSHD refused the Appellant’s further human rights submissions and decided that those submissions did not amount to a “fresh claim” under paragraph 353 of the Immigration Rules. The Appellant lodged an appeal against refusal of a human rights claim (s.82 NIAA 2002, as amended by the Immigration Act 2014). SSHD argued before the First-Tier Tribunal that there was no jurisdiction to hear the appeal because a “human right claim” under s.82 meant a first human rights claim or a later claim only if SSHD had accepted that it amounted to a “fresh claim”, applying R (Waqar) V SSHD [2015] UKUT 169. The First-Tier Tribunal issued a decision to the effect that it had no jurisdiction. The Appellant appealed.

The Upper Tribunal accepted that it had jurisdiction to hear an appeal from the First-Tier Tribunal where the latter had rejected jurisdiction after a hearing. Furthermore, there had been a valid appeal before the First-Tier Tribunal. The SSHD had refused a human rights claim. SSHD’s decision under paragraph 353 could not have the effect of removing a right of appeal once she had refused a human rights claim, even if that was her intention. The judgment in R (Hussein) v FTT (para 353: present scope and effect) (IJR) [2016] UKUT 409 (IAC) did not alter the Tribunal’s conclusions.