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“Remove first, appeal later” provisions in force from today: new guidance published

“Remove first, appeal later” provisions in force from today: new guidance published

The power under the Immigration Act 2016 to certify any human rights appeal, not just deportation appeals, for “remove first, appeal later” treatment came into force today, 1 December 2016. For background see this earlier blog post: New commencement order introduces out of country human rights appeals and more.

Guidance has today been updated on how the power should be exercised by immigration officials: Section 94B of the Nationality, Immigration and Asylum Act 2002. Amongst the general updating, a new part has been added on the “phased implementation for non deport cases”.

This part of the guidance applies the new power only to cases where the appellant did not have leave at the time he or she made the relevant human rights claim and where the human rights claim is not founded on a relationship with a British national family member:

Implementation of the extended power is being phased.

The power to certify non-deport cases should be applied on or after 1 December 2016 where the case under consideration meets both of the criteria below:

  • the claimant did not have existing leave at the point that they made their human rights claim (for example, overstayers or illegal entrants)
  • the claimant does not rely on their relationship with a British national family member

For the purposes of identifying this cohort, the term ‘family member’ means a partner, parent, or child, where there is evidence of the relationship.

This represents a relatively limited roll out of the new power and it is more or less in line with the statements of Ministers during the passage of the Immigration Act 2016. For example, then Immigration Minister James Broken-shire said back in 2015 that the power would be used to remove illegal immigrants:

“Through the Immigration Act 2014, we introduced a ‘deport first, appeal later’ rule for foreign national offenders.

“And now, through the Immigration Bill, we will remove even more illegal immigrants by extending this rule to all immigration appeals, apart from where there is a risk of serious irreversible harm.”

If you have leave at the time you apply to extend it, you are refused and you lodge an appeal you might well win, it is hard to see how you can be described as an “illegal immigrant”.

A lot of cases will no doubt still be affected by this power, though. Even where a person qualifies for section 94B certificate under the new policy, the legal arguments against removal are a little different to deportation cases and may well be worth pursuing by way of an application for judicial review. The public interest in a temporary removal is certainly not as high.

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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