“Procedure and rights of appeal Fresh claims 353. When a human rights or protection claim Formerly “asylum claim”: see paragraph 6 below. has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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. This paragraph does not apply to claims made overseas. 353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.”
‘a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from, or required to leave, the United Kingdom.’
“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 claimants 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 the BA (Nigeria) case is not inconsistent with the ZT (Kosovo) case or is not determinative of the present appeals in favour of the claimants. The actual decision was that rule 353 had no further part to play for the purposes of section 92(4) 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 DPSC relied on by the claimants, we should, as Mr Gill and Mr Jacobs contend, conclude that a wider interpretation of the reasoning in the BA (Nigeria) case 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 the ZT (Kosovo) case[2009] 1 WLR 348 . 53. There is no statement in the judgments of the BA (Nigeria) case[2010] 1 AC 444 which says in terms that the reasoning in the ZT (Kosovo) case is being effectively overruled or departed from, but that is the effect of the claimants’ 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 claimants 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. ...... 57. … If the wider interpretation of the BA (Nigeria)[2010] 1 AC 444 , overruling ZT (Kosovo)[2009] 1 WLR 348 , is adopted, rule 353 has had no role to play since the 2002 Act came into force; on that basis,section 53 of the Borders Citizenship and Immigration Act 2009 would have been misconceived and pointless legislation. That would not be so if the narrower interpretation is adopted. That factor was not considered in BA (Nigeria)[2010] 1 AC 444 , nor should it have been given the point actually at issue. However, it should have been considered, and presumably would have been considered, if the Supreme Court was deciding that rule 353 was a dead letter. It is true that in BA (Nigeria)[2010] 1 AC 444 paragraph 26, Lord Hope DPSC rejected an argument relating to rule 353 based onSection 12 of the Immigration, Asylum and Nationality Act 2006 on the ground that that section had not been brought into force. However, the argument was far less clear, as it is much less apparent fromsection 12 of the 2006 Act than it is from section 53 of the 2009 Act that rule 353 was assumed by Parliament to be effective. Further, with all due respect, it seems to me that, where one is dealing with an issue of statutory interpretation, one is considering what the legislature intended or understood, so legislation as enacted is relevant, whereas the question whether the executive has chosen to bring that legislation into force is not relevant. 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 claimants, at paras 29-33, in the judgment of Lord Hope DPSC, 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 claimants’ 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’.”
“I would hold that claims which are not certified under section 94 or excluded under section 96, if rejected, should be allowed to proceed to appeal in-country under sections 82 and 92, whether or not they are accepted by the Secretary of State as fresh claims.”