Yes, there is a right of appeal against a refusal of entry clearance, even under the appeals regime introduced by the Immigration Act 2014. I mention this because a client’s appeal was just rejected by the First-tier Tribunal under rule 22 of the procedure rules on the basis that there is no right of appeal against refusal of entry clearance. It is very worrying that a duty judge can get this so very wrong.
We are attempting an appeal to the Upper Tribunal as the most appropriate remedy but the case of Abiyat and others (rights of appeal) Iran [2011] UKUT 00314 (IAC) is somewhat ambiguous on whether there is a right of appeal in such circumstances or whether we have to pursue an application for judicial review against the tribunal. We do have a “reasoned” (if obviously wrong) determination but the decision is made under rule 22, the equivalent of what was rule 9 at the time of Abiyat.
The relevant provision is the Immigration Act 2014 Schedule 9 paragraph 53, which amended the definition of human rights claim at section 113 of the Nationality, Immigration and Asylum Act 2002 to include the highlighted words:
“human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention)
That paragraph of Schedule 9 was commenced by Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711), although with further provision on commencement by Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371).
The amended section 113 obviously includes a right of appeal against refusal of entry clearance. There is a separate issue about whether a given application for entry clearance is or is not a “human rights claim”. Some have suggested that the human rights claim must be explicit: “I claim human rights!” For myself, I think that must be wrong and that as long as the application does in reality, as determined by a judge, raise human rights issues then there is a right of appeal. I am fortified in that belief by the fact that the Home Office agrees. Refusals of entry clearance under Appendix FM (other than domestic violence and bereaved spouse settlement applications) are considered by the Home Office to raise human rights issues capable of generating a right of appeal even though there is no explicit human rights claim in the form.
It is not for the Home Office unilaterally to decide the tribunal’s jurisdiction, though. That is for the tribunal or, if necessary, the courts. It would help if they got it right, though.
