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Appeals and the Immigration Bill

Appeals and the Immigration Bill

The new Immigration Bill (see Ronan’s previous post “Summary of clauses“) is so packed with nastiness that some really unpleasant parts of it – perhaps the whole of it – will make it to the statute book. No mainstream politician with influence will today stand up for the rights of immigrants and their families. The Lib Dems must have signed off on the contents of the Bill. Labour has said the party not only supports the Bill but would go further in introducing tougher measures.

Appeal rights are too technical and complex to attract headlines. And the removal of appeal rights is far from being the most socially damaging, racist part on the Bill. As a lawyer working to correct legal wrongs, though, it is the part I feel best able to write about. Here I try to peer into the future.

The end of immigration appeals?

Taylor House hearing centre in London
Taylor House hearing centre in London

The Bill removes appeal rights against decisions made under the Immigration Rules and even removes the ‘not in accordance with the law, including Immigration Rules’ ground of appeal.

For over 40 years we have had an immigration tribunal to correct administrative decisions profoundly affecting people’s lives. At first glance it now looks like conventional immigration law will come to an end. Seasoned lawyers in this field will recall that refugee law appeals were only created in 1993 and human rights appeals in 1998. Only these Johnny-Come-Lately appeals will remain while the original purpose for the immigration tribunal will be removed.

It would appear that tribunals will continue to exist for tax disputes, school place allocation, parking fines and welfare benefits, but not where one is accused of a sham marriage, faced with permanent separation from spouse or children or removed from the country.

In fact, though, it seems to me that immigration appeals will essentially continue, albeit in more complex form, and that judicial reviews will considerably grow. As I previously wrote, families will not simply accept their own extinction. They will find ways to fight on.

Human rights appeals

Human rights appeals will continue, although as currently drafted the Bill will actually remove all appeals against entry clearance decisions, including in human rights cases involving children and spouses (because of the s.113 NIAA 2002 definition of human rights claim, see members’ forum thread). This seems to be an error and ILPA is working on the issue (do join, they really need our support for this kind of work).

At the moment, contrary to the fantasies of Theresa May and Paul Dacre, human rights arguments are the last resort of any decent lawyer. Human rights applications will always be refused by the Home Office and without rules to guide, the outcome on appeal is a lottery. Anyone sensible will seek to fit their case within the Immigration Rules.

In future, that option will no longer be available on appeal and anyone who wants to contest a decision to refuse entry or to remove (a lot of people) will be forced to rely on the human rights arguments the politicians purport to hate.

Nevertheless, the Immigration Rules will still need to be considered in human rights appeals. Step 3 of the famous 5 steps set out in Razgar [2004] 2 AC 368 is to ask whether the interference with rights is in accordance with the law:

(i) Will there be an interference by a public authority with the exercise of the applicant’s right to respect for his private or family life?

(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(iii) If so, is such interference in accordance with the law?

(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?

If the decision is not in accordance with the law, there is no need to go as far as steps 4 and 5 to ask whether the interference is proportionate. So, if it can be shown that human rights are engaged in some way and that the Immigration Rules, as properly understood, were contravened in the making of the decision, the appeal will need to be allowed on human rights grounds without even getting as far as considering proportionality.

It is an unnecessarily convoluted and indirect way of doing things and it creates an artificial reliance on human rights arguments, which will no doubt be lamented later by the very politicians who created the problem. If one’s aim is to reduce reliance on human rights arguments (and abolish the Human Rights Act and replace it with domestic remedies) then it is the equivalent of using water to extinguish a chip pan fire. Which leads us neatly on to the subject of judicial review an an alternative remedy.

Judicial review

Where there is no adequate alternative remedy, a person who alleges that a decision made by the Executive branch of government may bring an application for judicial review. The removal of immigration appeal rights will create many more such people, and will therefore increase the number of applications for judicial review at the same time that politicians are trying to reduce the number of applications for judicial review.

Where an application and appeal does raise human rights issues (family migration cases, for example, or long residence in the UK, or where there are vested rights in a course of study or employment) then it looks like a human rights appeal will be possible, with compliance with the Immigration Rules being indirectly argued as described above.

Where there are no human rights issues, as in some Points Based System cases, particularly for entry to the UK, the only independent remedy will be an application for judicial review. In some ways these are more expensive because legal costs are higher, there is a risk one will have to pay the costs of the other side if one loses (although good luck claiming costs from someone abroad), it is lengthier and more convoluted as a legal process and it is not generally a facts based appeal where the judge will substitute his or her own decision at the end of the case. Nevertheless, immigration decisions can be very important to those affected, some of whom will want to pursue judicial review as a remedy.

Judicial review can be a lot cheaper than an appeal, particularly in some of the more obviously awful immigration decisions. Where the decision is withdrawn or the applicant wins the case, he or she should be able to recover legal costs and also perhaps damages from the immigration authorities.

Lastly, from 1 November 2013 almost all judicial reviews will be heard in the Immigration and Asylum Chamber of the Upper Tribunal (“Transfer of immigration judicial reviews to Upper Tribunal“). It seems that the main effect of the removal of simple appeal rights is to omit the First-tier Tribunal, jump straight to the Upper Tribunal and, therefore, increase the number of immigration judicial reviews reaching the higher courts.

Human rights for overstayers

One group looks set to benefit from the changes: overstayers. At the moment the arcane sophistry of the immigration notices that trigger appeal rights mean that overstayers who apply to remain on the basis of residence and family in the UK often have no right of appeal. They are left in limbo. In future, though, as long as they have made a human rights claim if they are refused that will trigger an instant human rights appeal. So long Daley-Murdock, and thanks for nothing.

Foreign criminals

Foreign criminals will also retain appeal rights as they always rely on human rights arguments to resist removal anyway. However, it is proposed that some will only be able to exercise appeal rights from abroad.

As with the existing ‘clearly unfounded certificate’ system for asylum claims the Home Office considers to be poor, such certificates can be challenged by applications for judicial review.

There will no doubt be many such challenges where the meaning of “a real risk of serious irreversible harm” is hammered out in the courts and, probably, pursued to Strasbourg. See the useful UK Human Rights Blog piece on this, Deport first, appeal second.

What does the future look like?

The twin bogeymen of judicial reviews and human rights claims will actually go forth and multiply: they will be the only avenues of redress for desperate people. Remedies will be more expensive to both individuals and government. Simple and cheap fact based appeals will be curtailed. A few businessmen, skilled workers and students who currently have appeals will not in future. Overstayers and foreign criminals will have, in some ways, improved appeal rights and ways of resisting removal.

The whole purpose of the tribunal system was supposed to be to provide cheap, efficient and effective justice in the field of administrative decision making. The complexity of immigration law combined with the volume of work generated by deep rooted organisational dysfunction at the Home Office has rendered those aims almost unattainable.

This Immigration Bill seeks to address the symptoms without treating the underlying illness. By doing so, it will compound the problems.

Series Navigation<< ‘Officers 1 Immigrants 0’: The mob mentality of the Immigration BillAdministrative review success rates >>
Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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