Full appeal rights for applications under the Points Based System are being ended with effect from today, 2 March 2015, and for all other cases from 6 April 2015. The initial change applies to those who make an application on or after 2 March 2015 under Tiers 1, 2 or 5, and of course has already been brought in for those making Tier 4 applications on or after 20 October 2014.
The second stage will from 6 April 2015 end full rights of appeal for all “legitimate” migrants (those within the Immigration Rules), increase rights of appeal for overstayers and preserve rights of appeal for those relying on the Refugee Convention or human rights law.
It will still be possible for affected migrants to appeal on human rights or refugee grounds, but such a right of appeal will often be useless. There is an argument that where human rights are engaged in some way (unlikely in most Points Based System cases), a human rights appeal will include ‘in accordance with the law’ grounds, but realistically for most of those affected the only recourse to an independent legal remedy will be an application for judicial review.
In tandem with scything of appeal rights, administrative review is being extended from 6 April 2015 by Statement of Changes HC 1025. Where a simple mistake is made by the Home Office this should be a quicker and cheaper remedy than an appeal, but the scope of review is far more limited than a full appeal and the review is not an independent one, it is conducted by a Home Office civil servant.
New paragraphs are inserted into Appendix AR to add a right of administrative review for certain decisions to cancel leave to enter or remain where the reason for cancellation is that there has been such a change of circumstances in the applicant’s case since that leave was given that it should be cancelled or the leave was obtained as a result of false information given by the applicant or the applicant’s failure to disclose material facts. Where such decisions are made in a Control Zone (outside the UK) the right of review can only be exercised from abroad.
Additionally, new types of decision made overseas will be subject to administrative review. The wording is confusing (well, it confused me) but basically it extends the formal Immigration Rules administrative review process to all applications for entry clearance except short term students, visitors, partners or children of members of the Armed Forces and some Appendix Armed Forces decisions, family members under Part 8 or Appendix FM, asylum decisions under Part 11 and some others. All these types of application should pursue a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (albeit on human rights or refugee grounds only).
The initial change, the removal of appeal rights for PBS migrants, is wrought by Article 7 of the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/317), which amends the earlier Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 and revokes the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014. Article 8 then applies the changes to all others from 6 April 2015.
If interested in appeal rights and the Immigration Act 2014 generally, take a look at the ebook, which I will update again shortly, and/or listen to Sadat Sayeed explaining the effects. You can read coverage of the earlier key commencement order here and here.
