ZA (Nigeria) & Anor, R (on the application of) v Secretary of State for the Home Department

PRESIDENT OF THE QUEEN'S BENCH DIVISION THE HON MR JUSTICE FOSKETT ____________________

Mr M.S. Gill QC and Mr D Bazini (instructed by Trott & Gentry) for the Claimant Miss N Nnamani (instructed by Nathaniel & Co for the Claimant (1) and (2) Mr D Blundell (instructed by the Treasury Solicitor) for the Respondents Hearing date: 16th March 2010 ____________________

It was submitted on behalf of the claimant that categorisation by the Secretary of Sate of a claim as repetitious rather than fresh was in substance a refusal of leave to enter. Of this submission, Schiemann LJ said at page 182:

He went on to hold at page 185 that, potentially severe though the consequences might be, Parliament had not provided for an appeal on the merits against a categorisation decision. A challenge to the legality of the decision was sufficient and there was no need to create also the possibility of an appeal on the merits of the decision.

Mr Blundell points out that this passage is to substantially the same effect as the passages from Cakabay to which we have referred. A decision under rule 353 that further submissions do not amount to a fresh claim does not by itself generate, and does not need to generate, an appealable immigration decision.