In March 2015 the Home Office started the new appeal rights. One the major changes that were brought into effect by the Immigration Act 2014 is the way that Immigration Appeals are dealt with by the Immigration and Asylum Tribunal. The Immigration Act 2014 reduces the grounds on which a challenge can be brought.
Prior to the Immigration Act of 2014 all valid immigration applications from people who were lawfully in the country submitted in time before the expiry of their current visa attracted a right of appeal.
Under the old rules, one could appeal the decision on one of the following grounds, NIAA2002:
• the decision is not in accordance with the immigration rules
• the decision is unlawful under section 19B of the Race Relations Act
(discrimination by public authorities)
• the decision breaches the person’s human rights, contrary to section 6 of the Human Rights Act 1998
• the person is an EEA national (or the member of the family of one) and the decision breaches the person’s rights under EU treaties
• the decision is not in accordance with a law for some other reason
• removal would breach the person’s rights under the Refugee Convention or the Human Rights Convention.
New Immigration Appeals under Immigration Act 2014
The new Immigration Act has overhauled the appeal system and replaced it with the Independent administrative review system, which will cost the applicant (£80 to file the review) and will be quicker (28 days).
There are now only four routes which have a right of appeal left appeal grounds left to challenge to the immigration tribunal being – a decision regarding international protection (e.g. asylum claims) or Human Rights (e.g. Article 8 – Right to family and Private Life) (new s 82 of 2002 act), Refusal to issue an EEA family permit as well as certain other EEA decisions. These appeal rights are in Regulation 26 of the Immigration (European Economic Area) Regulations 2006 and Deprivation of citizenship. Section 40A of the British Nationality Act 1981 applies.
The groups of immigrants that have been affected are Tier 4 migrants, all applications under the Points Based System like Tier 1 and Tier 2 worker.
The new appeal rights have actually resulted in a bonus to overstayers. Prior to the implementation of the new appeal rights overstayers who made an application on human rights grounds were not given a right of appeal. They were served with a refusal letter and had to wait for removal directions which would generate a right of appeal or they would have to bring a claim of Judicial Review through the Upper Tribunal. Post 6 April 2015 overstayers who have made an application for leave to remain which has elements of Human Rights arguments will be granted a right of appeal. Overstayers who have a human rights element to their cases should consider making a fresh application in order to trigger a right of appeal. The benefit of having a case heard in the First Tier Tribunal is that there is a higher chance of getting a humane decision from an Immigration Tribunal Judge than from the Home Office.
The Home Office self review system stands to be tested. As an immigration practitioner I am not optimistic that the self review system will work. The Home Office Senior Caseworker’s will not be impartial and from experience they tend to re argue the Home Office’s position and reinforce the reason to refuse application. They use a tick box system which does not look at the individual cases.
Where a person has been recommended for deportation the Home Office has changed the rules so that the appeal can only be undertaken once the person has left the United Kingdom.
An example to clarify this law. Z was sentenced to five years for a very serious criminal offence he committed as a 16 year old. He had been in the UK only a few months at the time of the offence. All of his immediate family are now in the UK and he wishes to remain in the UK with them relying on Article 8 of the ECHR. He is likely to face a certificate under Section 94B. The Home Office may well take the view that there is no real risk of irreversible harm in a case of this nature. If so, and absent a successful application for judicial review Z may appeal against his deportation but only once he has been deported.
The stakes in immigration cases are getting higher and higher. It is therefore important for applicants to seek advice from a reputable and trusted immigration Solicitors before embarking on making any application for leave to remain or an appeal..