The Home Office has introduced a new policy on reconsideration of old human rights claims that were refused before 6 April 2015 with no right of appeal: Requests for reconsiderations of human rights or protection based claims refused without right of appeal before 6 April 2015. The policy is important in the very many cases where a human rights application was made by an individual or family and the application was refused with no right of appeal because no removal decision was made. Under the new appeals regime introduced by the Immigration Act 2014 from 6 April 2014, no removal decision is needed for a right of appeal, only refusal of a human rights claim.
The policy states that decisions will be reconsidered where:
- the refused application for leave to remain included a dependent child under 18 who had been resident in the UK for three years or more at the time of application
- the applicant has a dependent child under the age of 18 who is a British citizen
- the applicant is being supported by the Home Office or has provided evidence of being supported by a local authority in accordance with a duty in legislation there are exceptional and compelling reasons to reconsider the decision at this time, or
- it is operationally expedient or appropriate to reconsider the decision
That last bullet point is obviously rather mysterious and no direct elucidation is offered in the public policy. There may be unpublished criteria on what might or might not be “operationally expedient or appropriate” but the end of the policy might also give us an idea: keep reading.
If one of the criteria is satisfied, the decision will be reconsidered and either refused again or leave might be granted. Interestingly, the policy is silent on whether a new refusal will generate a right of appeal and whether appeal forms should be served – but the policy does state that consideration should be given to certifying a refused claim, which implies that there is a right of appeal. There is no mention of the application also having to satisfy the paragraph 353 criteria for a fresh claim (does even the Home Office think Waqar is wrong?). The policy is also silent on whether the NHS surcharge will need to be paid.
If none of the criteria are met then the Home Office will respond by inviting a new paid application. The policy goes on to say that where no paid application is made and there has been no appeal, there will be no removal without an appealable decision being served:
A person in this situation (ie who made a human rights claim which was previously refused without a right of appeal but which would have attracted a right of appeal if it was made under the law as it applies from 6 April 2015) will not be subject to enforced removal without having received an appealable decision (subject to certification) subsequent to that refusal.
However, where the criteria for a reconsideration on request are not met and the person does not make a further application or claim by the appropriate route, the timing of any reconsideration of a previous refusal will be at the discretion of the Secretary of State, taking into account factors such as the imminence of removal.
This puts many people more or less back in the position of waiting for enforcement action in line with the previous Daley Murdock regime. However, it is possible to escape limbo by making a new charged application if in possession of sufficient funds and, if the tribunal in Waqar is right (which is dubious), if satisfying the fresh claim criteria.