We take a look at the substantial changes made to immigration appeal rights contained within the Immigration Act 2014 (IA 2014).
What are the main appeals provisions about?
IA 2014, Pt 2 takes a scythe to appealable decisions in the Nationality, Immigration and Asylum Act 2002, Pt 5(NIAA 2002), which is the asylum and immigration appeals structure. Appealable decisions listed in NIAA 2002, s 82 will be pared down to the fundamental rights protected by the UK’s international obligations. Limited grounds of appeal will be handcuffed to the appealable decisions (new NIAA 2002, s 84) and grounds must first be considered by the Secretary of State, not raised for the first time on appeal (new NIAA 2002, s 85). Where an appeal right survives, more people can be removed to exercise it from abroad (new NIAA 2002, ss 92 and 94B). As expected, the European Convention on Human Rights, art 8 (ECHR) is now shrink-wrapped in the statute to give force to the Secretary of State’s view of the public interest expressed in the 2012 Immigration Rules.
How will the new regime be rolled out?
The new appeals regime will be commenced by order at a date yet to be fixed by the Secretary of State, possibly as soon as October 2014. Changes will not be retrospective, so decisions made pre-commencement will retain existing appeal rights. There is some corresponding addition to Special Immigration Appeals Commission (SIAC) review in national security cases.
What will the new grounds of appeal be?
Under the new NIAA 2002, ss 82 and 84, a person may appeal to the First-tier Tribunal only where the Secretary of State has made one of the following decisions and on the related grounds in brackets:
- to refuse a protection claim (where removal might breach the Refugee Convention or humanitarian protection obligations, or be unlawful under the Human Rights Act 1998, s 6 (HRA 1998) (public authority not to act contrary to ECHR))
- to refuse a human rights claim (where the decision might be unlawful under HRA 1998, s 6)
- to revoke protection status (where the decision might breach the Refugee Convention or humanitarian protection obligations)
‘Humanitarian protection’ is to be construed as in the immigration rules. IA 2014, Pt 2 repeals NIAA 2002, ss 83and 83A which gave differing appeal rights to asylum refusals or revocations where the person had other leave to remain.
Swept away are all the other immigration decisions, listed in NIAA 2002, s 82, which could be appealed to a tribunal for independent scrutiny-including refusal of a certificate of entitlement to right of abode. Grounds no longer include that a decision is not in accordance with the law and discrimination. For those with a residual appeal right to the tribunal, IA 2014 attempts to clamp down what the tribunal can scrutinise.
A new NIAA 2002, s 85(5) bars the tribunal from considering a new matter ‘unless the Secretary of State has given the Tribunal consent to do so’, if the matter has not previously been considered in the decision or in an appellant’s response to a NIAA 2002, s 120 statement, in which any additional grounds have to be stated.
This controversial limitation gives the Secretary of State, a party to the appeal, a questionable veto over what the tribunal can consider. The Secretary of State has indicated that guidance would be published on how this will work.
What is happening about the venue for appeals?
The nature of the decision and the grounds affect whether someone who still has an appeal can exercise it in-country or only after removal. NIAA 2002, s 92 and a new NIAA 2002, s 94B relate to appeals which can only be ‘brought or continued’ outside the UK. This applies to appeals started outside the UK and those started in the UK but which do not suspend removal. The Secretary of State can already certify as non-suspensive asylum or human rights appeals deemed to be ‘clearly unfounded’ including where removal is to a safe third country.
New NIAA 2002, s 94B introduces a new category to certify a human rights claim. For those liable to deportation under the Immigration Act 1971, ss 3(5)(a) (deportation deemed conducive to the public good) or 3(6) (court recommendation for deportation following conviction) (IA 1971), a human rights claim can be certified as not unlawful under HRA 1998, to include the grounds that the person ‘would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country [of destination]’. This applies before or during the appeal process. It does not give relief to others at risk of ‘serious irreversible harm’, such as the appellant’s family in the UK.
Appeals of those removed under certification are not treated as abandoned.
What changes are being made in relation to the adjudication of HRA 1998, art 8 claims by a court or tribunal?
The vehicle for giving statutory force to the Secretary of State’s take on HRA 1998, art 8(2) public interest qualifications, where a court or tribunal is determining whether a decision breaches the art 8 right to respect for private and family life, is a new NIAA 2002, Pt 5A. NIAA 2002, Pt 5A prescribes a list of general considerations (NIAA 2002, s 117B) and additional considerations in foreign criminal cases (NIAA 2002, s 117C).
In all cases the court or tribunal must, in particular, have regard to the public interest in:
- maintenance of effective immigration controls
- persons seeking entry or stay being able to speak English, to be less of a burden on taxpayers and better able to integrate, and similarly
- financial independence of applicants
In observing the Secretary of State’s prescription, ‘little weight should be given to’:
- a private life, or a relationship with a qualifying partner, established when the person is in the UK unlawfully, or
- a private life established when the person’s immigration status is precarious
There is some relief for some children. The public interest ‘does not require the person’s removal’ where ‘the person has a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the UK’. This applies only in non-deportation cases.
In deportation cases, relief is very limited. For ‘foreign criminals’ (non-British, convicted and sentenced to at least 12 months’ imprisonment, or involving an offence that has caused serious harm, or a persistent offender), deportation is in the public interest and the more serious the offence the greater is the public interest in deportation. Deportation is required, subject to two exceptions which might benefit people with less than four year custodial sentences:
- exception 1 applies where the person has been lawfully resident in the UK for most of his or her life, is socially and culturally integrated, and ‘there would be very significant obstacles to [his or her] integration into the country [of proposed deportation]’
- exception 2 applies where the person has a ‘genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of [the person’s] deportation on the partner or child would be unduly harsh’
Advisers will notice that, in yet another mutation, the wording is similar but not identical to what went before quite recently in revised immigration rules 398 and 399A (deportation and HRA 1998, art 8). Presumably there will be more rule changes.
A ‘qualifying child’ means a British citizen or a child living for a continuous period in the UK of seven years or more, and ‘qualifying partner’ means a British Citizen or someone settled (s 117D, Interpretation). Partners with refugee status or humanitarian protection have been left out of the exception.
Those with sentences of four years or more will need ‘very compelling circumstances’ over and above the two exceptions (s 117C(6))-rather than the ‘exceptional circumstances’ of r 398.
The Home Office anticipates this will reduce the number of appeals heard from 70,000 to 40,000 per annum, because fewer people will have appeal rights and because many of those who do have a right of appeal, but it is only exercisable from abroad, will not bother or will not have the means.
What remedy will there be for those who will now be denied a right of appeal?
Filling the scrutiny gap will be administrative review, which means review by the Secretary of State’s own officials, ‘under the immigration rules’. New rules are anticipated. Advisers have experience of administrative review with points-based system entry clearance refusals.
The scope of administrative review, in the statement of intent, covers only alleged caseworking errors-only those which could have made a difference to the decision-and once only (unless the Home Office on review puts forward a different basis of refusal).
No new evidence can be submitted unless it demonstrates that previously submitted documentation is genuine and meets the rules. Listed caseworking errors include:
- failure to consider all the evidence submitted
- failure properly to exercise any discretion
- credibility, and
- documents not meeting the requirements or not considered to be genuine
As with appeals, time limits will be ten days to apply for administrative review or two days for detainees. Application forms for review will carry a charge, which is likely to be similar to the HMCTS charge for an appeal being heard on the papers (currently £80), with a refund if overturned. IA 1971, ss 3C and 3D are being amended so that status for in-time review applicants will be protectively frozen, to maintain existing leave and conditions until the application is determined, any appeal (see IA 2014, Sch 9, Pt 4).
Refusals will be reviewed by a different person, within specialist administrative review teams. The service standard to decide is 28 days.
The Secretary of State is to ask the Chief Inspector of Borders and immigration to review how it works within 12 months of commencement.
The Home Office, in the impact assessment, considers that caseworker error is operative in around 60% of points-based scheme allowed appeals. This is a justification for proposing that internal review should cure most errors.
Of appeals determined by the tribunal, around half of managed migration and entry clearance appeals are upheld, and about a third of deportation and other appeals are upheld. By comparison, entry clearance reviews yielded a 21% overturn rate according to the statement of intent. This suggests that a significant proportion of decisions by the Secretary of State are wrong, or not in accordance with the law, for the range of reasons currently open to the tribunal to consider, and for the more limited range of caseworking error open to internal reviewers. There is no basis for assuming Home Office reviewers, subject to the same managerial norms, will take a leap forward in competence, efficiency or independent objectivity. The lack of remedy is likely to increase pressure on the more elastic administrative review criteria and, ironically, on judicial review. But neither of those two alternatives are sufficient remedy since neither provides a review of the merits of the decision.
What are the key practical implications of these changes?
There is not much for advisers to look forward to in what the Home Office sees as streamlining the determination journey and others see as digging up the road, particularly when this coincides with legal aid loss and judicial review obstacles. Advisers might press for decisions now, to preserve existing appeal rights. Front loading applications will be more important than ever, to ensure that all relevant information is before the Home Office at the outset, in the hope of engineering a decision that is in accordance with the law in the first place. There will be pressure to:
- declare any protection and human rights issues at the earliest stage
- engage a right of appeal
- obviate the Secretary of State seeking to vacate the appeal because a new matter has been raised, and
- avoid certification under NIAA 2002, s 96 (negating matters that could have been raised earlier)
Experience gives no ground for optimism that administrative reviews will be turned around within the target 28 days, or that Home Office consideration of new matters, withdrawn from the tribunal to permit primary consideration by the Home Office, will be considered promptly. The limited acknowledgement of the interests of some children is difficult to square with the statutory obligation to safeguard and promote the welfare of all children to which some Home Office caseworkers remain oblivious. How the courts will interpret this new invasion of their judicial independence, the bottle-necking into residual redress as appeal rights are closed off, as well as what is unlawful under ECHR-which remains subject to accumulated case law-remains to be seen. Faced with the new bureaucracy of administrative review, advisers may start a new log of how it meets expectations of streamlined efficiency, for submission to the Chief Inspector in his 12-month review. IA 2014, Pt 2 may be seen as reductive not only of clients’ legal rights and access to independent judicial scrutiny, but also of transparent constitutional checks on how the executive works. Those checks have been the best guarantee of efficiency.