What amounts to a ‘Fresh claim’ for permission to stay in the UK? These questions were re-considered and reviewed by the Upper Tribunal in R (Akbar) v Secretary of State for the Home Department (paragraph 353; Tribunal’s role) [2021] UKUT 260 (IAC). The Tribunal decisioned 

‘3.              The end-to-end process where Paragraph 353 applies is as follows:

Stage 1: The Applicant makes human rights or protection claim.

Stage 2: That claim is refused by the Respondent, giving rise to a right of appeal under section 82 of the 2002 Act.

Stage 3: The Applicant’s appeal is unsuccessful; or the Applicant does not appeal or withdraws his appeal; or the refusal is certified under section 94 of the 2002 Act.

Stage 4: The Applicant makes second or subsequent submissions by way of written submissions or application (“the Further Submissions”).

Stage 5: The Respondent considers whether to accept or reject the Further Submissions on their merits.

Stage 6: If the Further Submissions are accepted on their merits, the Respondent grants leave/recognises Applicant’s status.

Stage 7: If the Further Submissions are rejected, the Respondent goes on to consider whether they nonetheless amount to a fresh protection or human rights claim; i.e. a categorisation decision is made.

Stage 8: If the Respondent determines that the Further Submissions do not amount to a fresh claim, she rejects them as such. No refusal of a human rights or protection claim arises, within the meaning of section 82(1)(a) or (b) of the 2002 Act. If, however, she determines that they do amount to a fresh claim, then a “decision” has been made to refuse a “claim” for the purposes of Section 82 (1)(a) or (b) of the 2002 Act and a right of appeal arises against that decision’

 

As a synopsis of the case Mr Akbar is a citizen of Pakistan. After living in the UK on the student and Tier 1 (General) routes, he applied for settlement on the basis of ten years’ long residence. The Home Office had refused his application in February 2018 under paragraph 322(5) of the Immigration Rules, saying that his presence in the UK was not conducive to the public good. This was because of an alleged discrepancy between earnings reported to HM Revenue and Customs (for tax purposes) and the Home Office (for claiming points to extend his permission to stay).

Mr Akbar appealed against the Home Office refusal. The First-tier Tribunal allowed his appeal. Following an appeal by the Home Office, the Upper Tribunal sent it back to the First-tier Tribunal for a re-hearing. 

The challenge now to the decision went ahead on two separate grounds: 

1. That the decision gave rise to a right of appeal and that it breached his article 8 right to a private and family life in the UK.

The Upper Tribunal refused permission on the first ground. It found that although determining the application required the Home Office to consider the merits of the application, that did not mean that in concluding that Mr Akbar had not made a fresh claim with a realistic prospect of success, it was refusing a human rights claim in a way that would trigger a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. 

2. Success on the second ground would have meant the tribunal tackling the human rights issues for itself, rather than reviewing whether the Home Office had made a public law error. 

Overall, this judgment is a useful summary of existing case law and confirmation of the position with respect to fresh claims.

Source: Akber, R (on the application of) v Secretary of State for the Home Department (paragraph 353, Tribunal’s role) [2021] UKUT 260 (IAC) (27 September 2021) (bailii.org)