“(1) A person (“P”) may appeal to the Tribunal where – i) the Secretary of State has decided to refuse a protection claim made by P, ii) the Secretary of State has decided to refuse a human rights claim made by P, or iii) the Secretary of State has decided to revoke P’s protection status.” i) the Secretary of State has decided to refuse a protection claim made by P, ii) the Secretary of State has decided to refuse a human rights claim made by P, or iii) the Secretary of State has decided to revoke P’s protection status.”
“When a human rights or asylum claim has been refused … and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: i) had not already been considered; and ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
“The question is whether the expression “an asylum claim, or a human rights claim” in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been accepted as a “fresh claim” by the Secretary of State under rule 353 of the Statement of Changes in Immigrations Rules (1994) (HC 395).”
“51. Like the Administrative Court, I have not found it entirely easy to resolve the issue of whether the Supreme Court was saying (a) as the appellants contend, that rule 353 has no part to play at all following the introduction of Part 5 of the 2002 Act, or (b) as the Secretary of State argues, that rule 353 has no part to play where there has been an appealable immigration decision and the only issue is whether the appeal is of a kind to which section 92 applies. Ultimately, however, again like the Administrative Court, I have come to the conclusion that the Secretary of State's more limited interpretation is to be preferred. 52. Mr Tam is plainly right in his argument that the actual decision in BA (Nigeria)[2010] 1 AC 444 is not inconsistent with ZT (Kosovo)[2009] 1 WLR 348 or is not determinative of the present appeals in favour of the appellants. The 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. The question therefore is whether, in the light of the passages in the judgment of Lord Hope relied on by the appellants, we should, as Mr Gill and Mr Jacobs contend, conclude that a wider interpretation of the reasoning in BA (Nigeria)[2010] 1 AC 444 is appropriate, so that the binding ratio is that rule 353 is effectively a dead letter. In my opinion, that contention, which I might very well otherwise have accepted, is one which should be rejected on the ground that it is plainly inconsistent with the reasoning and conclusion of the House of Lords in ZT (Kosovo)[2009] 1 WLR 348 . 53. There is no statement in the judgments of BA (Nigeria)[2010] 1 AC 444 which says in terms that the reasoning in ZT (Kosovo)[2009] 1 WLR 348 is being effectively overruled or departed from, but that is the effect of the appellants' contention on the present appeals. I accept, of course, that the Supreme Court (an expression which for present purposes includes the House of Lords) can impliedly, as well as expressly, depart from and effectively overrule its previous decisions. However, in this case, I have great difficulty with the notion that the later case relied on by the appellants overruled the earlier case. i) Both decisions relate to a much litigated issue, and the earlier decision was given less than a year before the later decision; ii) The point at issue was directly addressed and decided in all five reasoned judgments in the earlier decision, and even the reasoning of the dissenter would have to be treated as overruled; iii) The earlier decision is expressly referred to three times in the leading judgment, and once in the only other reasoned judgment, in the later decision without apparent disapproval, and both judgments were given by judges involved in the earlier decision; iv) The actual outcome in the later decision can perfectly easily be reconciled with the earlier decision, namely on the basis that the later decision is limited to further submissions which have been treated as a fresh claim; v) This more limited interpretation of the later decision is consistent with the Court of Appeal's reasoning and conclusion in that case, which was specifically approved by the Supreme Court; vi) This more limited interpretation of the later decision is also consistent with a recent statute, whereas the wider interpretation, which would involve overruling the earlier decision, is not. …. 58. In all these circumstances, unless it is pellucidly clear from the judgments in BA (Nigeria)[2010] 1 AC 444 , and in particular the passages relied on by the appellants in paragraphs 29-33 in the judgment of Lord Hope, as set out above, that the reasoning and conclusion in ZT (Kosovo)[2009] 1 WLR 348 was being overruled, it seems to me that we should dismiss this appeal. Those passages (and in particular the words I have emphasised) undoubtedly give support to the appellants' argument, if read on their own. 59. However, as with any observations contained in a judgment, one cannot properly interpret the passages other than in their factual and juridical context. Given all the factors I have mentioned, I have reached the conclusion that what was said in those passages can, and therefore should at any rate in this court, be read as being confined to cases where there is an appealable immigration decision. Once there is such a decision, the complete code contained in the legislative scheme applies and rule 353 has no part to play. However, as decided in ZT (Kosovo)[2009] 1 WLR 348 , 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".”
“human rights claim— (a)means a claim made by a person that to remove him from or require him to leave the United Kingdom would be unlawful undersection 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights, but (b)does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules.”