Practice and Procedure

BA (Nigeria) v Secretary of State for the Home Department,

PUBLISHED December 2, 2009

IMMIGRATION ? Asylum ? Appeal ? Claimants? asylum and human rights claims rejected ? Deportation orders made ? Claimants making representations on asylum and human rights grounds for revocation of deportation orders ? Secretary of State refusing to revoke deportation orders ? Whether claimants? rights of appeal to Asylum and Immigration Tribunal against refusals exercisable from within United Kingdom ? Whether rights so exercisable only where ?asylum claim? or ?human rights claim? fresh ? Nationality, Immigration and Asylum Act 2002, ss 92(4)(a), 113
SC: Lord Hope of Craighead DPSC, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood JJSC: 26 November 2009

A person who had made an asylum claim or a human rights claim within the meaning of s 113(1) of the Nationality, Immigration and Asylum Act 2002 was entitled, by virtue of s 92(4)(a), to remain in the United Kingdom until his appeal against a decision that he be removed from the UK had been disposed of, unless the Secretary of State had issued certificates to contrary effect under ss 94 or 96 of the Act.
The Supreme Court so held in dismissing an appeal by the Secretary of State for the Home Department against a decision of the Court of Appeal (Sedley, Longmore and Lloyd LJJ) [2009] 2 WLR 1370 allowing the appeal of the claimants, BA, a Nigerian national, and PE, a national of Cameroon, from a decision of Blake J, sitting in the Administrative Court of the Queen?s Bench Division [2008] 4 All ER 798, that the claimants had no right of appeal exercisable within the UK against the Secretary of State?s refusal to revoke deportation orders made against them.
LORD HOPE said that Pt 5 of the 2002 Act provided a general right of appeal against an immigration decision to an adjudicator under s 82(1). The claimants? case was that s 92(4)(a) conferred a suspensive in-country right of appeal unless the appeal had been certified under either s 94 or s 96 of the 2002 Act. It was suspensive because it suspended the operation of the immigration decision appealed against until the appeal had been disposed of. S 94 prevented appeals in asylum and human rights cases if the Secretary of State certified that they were clearly unfounded. S 96 removed the right of appeal altogether if the Secretary of State certified that the person had dealt with, or ought to have dealt with, the issue in an earlier appeal. No certificates under either s 94 or s 96 had been issued to the claimants in either case. They maintained that in those circumstances they were entitled to have their appeals heard in-country under s 92(4)(a), and that they could not be removed from the United Kingdom until their appeals had been dealt with. The Secretary of State?s contention was that an appeal against an immigration decision was available only out of country where, as in BA?s case, the further representations had not been advanced as a fresh claim or, as in PE?s case, had not been accepted as such by the Secretary of State. He maintained that their appeals had now to be pursued out of country. If so, there was now no obstacle to the claimants being deported in accordance with the deportation orders that had been served on them. The new system under the 2002 Act contained a range of powers that enabled the Secretary of State or an immigration officer to deal with the problem of repeat claims. It was common ground that the present cases were not certifiable under either s 94 or s 96. The claimants should not then be subjected to a further requirement which was not mentioned anywhere in the 2002 Act. Such a requirement could only be read into the Act by glossing the meaning of the words ?a ? claim? so as to exclude a further claim which had not been held under r 353 of the Statement of Changes in Immigration Rules (1994) (HC 395) to be a fresh claim. The court had had to do that in R v Secretary of State for the Home Department, Ex p Onibiyo [1996] QB 768, which concerned the Asylum and Immigration Appeals Act 1993. But there was no need to do that now. Claims which were not certified under s 94 or excluded under s 96, if rejected, should be allowed to proceed to appeal in-country, whether or not they were accepted by the Secretary of State as fresh.
LORD RODGER and LORD BROWN delivered concurring opinions, LORD SCOTT agreed and LADY HALE delivered a dissenting opinion.
Appearances: Elisabeth Laing QC and Deok Joo Rhee (instructed by Treasury Solicitor) for the Secretary of State; Raza Husain and Ronan Toal (instructed by Turpin & Miller, Oxford and Wilson & Co, Tottenham) for the claimants.
Reported by: B L Scully, barrister