On Tuesday I speculated on whether section 19 of the UK Borders Act 2007 might be brought into force. This was entirely speculative at the time, but today I’ve heard rumours that this is indeed what is going to happen, and soon. However, I can find no relevant Commencement Order and have checked both Hansard and the statute database.
The information seems to be coming from the tribunal, which might make sense. The main saving for effectively scrapping appeals in Points Based System cases would be for the tribunal. The Home Office rarely seem to attend these appeals.
Introducing section 19 is a very effective way for the Home Office to sidestep Pankina. Decisions will not be any more lawful than they are now, but they will be much less easy to challenge. Rather than complying with the law, the Home Office would rather prevent itself from being challenged. There is a risk of increasing the number of judicial reviews, but most applicants would probably prefer to re-apply. This will cause them to commit the criminal offence of overstaying and will substantially increase UKBA income from the huge application fees. Fees income is likely to be reduced with the planned reduction in immigration, scrapping of the Post Study Work route, reductions in the numbers of students and so on, and this income stream has become very important to the UK Border Agency. No doubt the increased income from fees is a reason for making this change.
Given that 54% of these appeals seem to be successful and so very many of these appeals are only necessary because the Home Office refuse to follow Pankina despite electing not to appeal it, the move seems particularly disgraceful. I have heard speculation about the potential for a contempt of court challenge on refusal to follow a judgment of a court, so maybe that is something that will be explored further. I can see a few hurdles to establishing contempt in a non-specific judgment, though.
For information, section 19 does not remove the right of appeal as such, rather it renders an appeal largely pointless. The only evidence that could be submitted to the tribunal would be evidence that was submitted to the Home Office, unless an allegation of fraud is made by the Home Office or certain other limited exceptions apply.
If the Points Based System was as simple as it was supposed to be and was genuinely transparent and comprehensible to the layperson, section 19 might be more acceptable. The PBS rules are so incredibly complex, though, that intelligent applicants very often make mistakes.
As an aside, this is probably neutral news for immigration solicitors, as the PBS will continue to force immigrants to require lawyers to help them understand it, but bad news for immigration barristers, as there will be less appeals.
More to follow if I hear anything.