Immigration Act 2014 Update
Changes to appeal rightsThe significant changes to appeal rights in immigration matters which have been anticipated since the Immigration Act 2014 received Royal Assent in May 2014 are now being introduced.
How are appeal rights changing? Section 15 of the Immigration Act 2014
("IA 2014") amends section 82 (rights of appeal) and section 84 (grounds of appeal) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”). A right of appeal was previously triggered by a relevant immigration decision being made, such as a refusal of entry clearance, refusal to vary leave to remain which resulted in no leave to remain and a decision to remove an applicant from the UK.
Rather than focusing on the decision made, the amendments to s. 82 introduced by the IA 2014, now focus on the type of claim made. Under the new s. 82, a right of appeal
occurs only where:
- (i) A Protection Claim is refused;
- (ii) A Human Rights Claim is refused; or
- (iii) Protection status is revoked.
A Protection Claim is one in which a person claims that their removal from the UK would breach the Refugee Convention or their right to humanitarian protection, so essentially a claim for asylum or humanitarian protection
A Human Rights Claim is a claim that a decision would be unlawful under the Human Rights Act 1998, for example because it would breach a person’s right to a private and family life in the UK under Article 8 of the European Convention on Human Rights.
Previously grounds of appeal included the ground that a decision was not in accordance with the law, that discretion ought to have been exercised differently and that a decision breached a person’s rights under the Refugee Convention and/or the Human Rights Act 1998. Under the new provisions, grounds of appeal are limited to these last two provisions.
It is arguable, that where Article 8 human rights arguments are being made, the third limb of the Razgar test
, that an article 8 decision must be in accordance with the law, allows for an appeal where the Secretary of State’s decision is not in accordance with the law.
When do they come in force?
The first groups to be affected by the new appeal regime were foreign national criminals and Tier 4 students, unfortunately linked by Commencement Order (No. 3). The new appeals applied to them from 20 October 2014
A further Commencement Order (No 4) has now been implemented which brings the new appeal regime to bear on all other Points Based System applications (Tier 1, Tier 2 and Tier 5) from 2 March 2015
Full rights of appeal will come to an end for all other applicants from 6 April 2015
The only silver lining is that overstayers who previously only had a right of appeal against a removal decision will now have a right of appeal where they have made a human rights or protection claim. It may also be possible to argue a right of appeal against refusal of a fresh claim for asylum where a human rights or protection claim has been made. This remains to be seen.
1. Administrative review
Administrative review provisions are contained within Appendix AR of the Immigration Rules. They provide that eligible decisions can be subject to the Administrative Review procedure. From 6 April 2015, eligible decisions are all decisions save for those stemming from an application under visit visa provisions, long residence, HM Forces, part 8 and Appendix FM for family members and asylum. Decisions under these sections should be appealed under s. 82 of the NIAA 2002, albeit only on human rights or protection grounds.
Administrative review is conducted by a caseworker at the Home Office who will not be the same caseworker who made the original decision. It is designed to amend case working errors which exhaustively include the following:
- (a) Where the original decision maker applied the wrong Immigration Rules;
- (b) Where the original decision maker applied the Immigration Rules incorrectly;
- (c) Where the original decision maker incorrectly added up the points to be awarded under the Immigration Rules;
- (d) Where there has been an error in calculating the correct period of immigration leave either held or to be granted;
- (e) Where the original decision maker has not considered all the evidence that was submitted as evidenced in the eligible decision;
- (f) Where the original decision maker has considered some or all of the evidence submitted incorrectly as evidenced in the eligible decision;
- (g) Where the Immigration Rules provide for the original decision maker to consider the credibility of the applicant in deciding the application and the original decision maker has reached an unreasonable decision on the credibility of the applicant;
- (h) Where the original decision maker’s decision to refuse an application on the basis that the supporting documents were not genuine was incorrect;
- (i) Where the original decision maker’s decision to refuse an application on the basis that the supporting documents did not meet the requirements of the Immigration Rules was incorrect;
- (j) Where the original decision maker has incorrectly refused an application on the basis that it was made more than 28 days after leave expired; and
- (k) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.
An application must be made within 14 calendar days on a prescribed form with payment of the AR fee of £80.
2. Judicial review
Judicial Review can be used to challenge the decision of a public body, such as the Home Office, where there is no right of appeal. A court can decide whether or not a decision has been made legally and make an order directing a public body to reconsider the decision, grant an injunction or grant damages.
In determining whether or not a decision made by the Home Office has been carried out legally, the court will consider whether the decision making process was illegal, irrational or unlawful. The court can also determine whether or not a decision was made in compliance with the European Convention of Human Rights.
Judicial review requires expert legal advice.
What advice do we have?
Our Leeds based immigration solicitor, Emma Brooksbank’s advice
is that applications need to be right first time. Limits on appeal rights will make many refusals unappealable.
The significant disadvantage with the Administrative Review procedure is that it is not an independent process. Experience of Administrative Review for entry clearance applications and Entry Clearance Manager reviews shows that there is a tendency for reviewers to simply rubber stamp the original case worker’s decision. In many cases, there will no opportunity for independent judicial scrutiny. Judicial review may be an option but this a complicated procedure and requires expert legal advice. Now more than ever, expert immigration advice is a necessity.