Changes on Appeal Right – Government gives with one hand takes with the other
Some of you may have missed it but from this week, as of the 2nd March 2015, the government further rolled out the curtailment of immigration appeal rights.
One of the major features in the new Immigration Act 2014, in the latest bid of the government to crack down on immigration, is the way that Immigration Appeals will be dealt with. Through the Act, the parliament not only tries to dictate how Immigration Tribunal Judges Should deal with Appeals, especially under Human Rights Grounds (Paragraph 117B), but also reduces the grounds on which a challenge can be brought.
Pre- Immigration Act 2014
Until recent changes all valid immigration applications from persons LAWFULLY in the country submitted in time before the expiry of their current visa attracted a right of appeal, and one could appeal on various grounds to an independent immigration tribunal who would consider the decision afresh (both within and outside the immigration rules).
Grounds of appeal and the tribunal’s jurisdiction
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.
Such an appeal may take anything from 3 to 12 months to be resolved, as one may have the right of appeal to the upper tribunal, court of appeal and finally the Supreme Court. As a safety cap the law provides for the automatic extension of a migrant’s visa while they are undergoing the appeal process, meaning they don’t become an over-stayer during the process and they can continue to lawfully reside in the country if already here (Section 118 of the Nationality, Immigration and Asylum Act 2002 added section 3C).
Due to the fact that the tribunal is an independent body and tends to look at all the circumstances, as opposed to the Home Office caseworker, who tends to restrict themselves to strict internal guidance attempting codifies human rights considerations; a lot of decisions are overturned in appeal and the Home Office are then forced to issue the visas.
So what was the problem with this? One of the problems to the government is that such appeals take too long and cost too much… an appeal can take years, which to the annoyance of the government means that such an appellant has the right to stay on and there is nothing that the government can do meanwhile. Also, these appeals can be complex and necessitate spending thousands in legal fees to pursue a prolonged appeal.
New Immigration Appeal under Immigration Act 2014
The new Immigration Act seeks to overhaul the immigration appeal system with a replacement of the Independent administrative review system, which the government says would cost less to the applicant (£80 to file the review) and will be quicker (28 days).
All applications under the Immigration rules will eventually have their full right of appeal curtailed, with the only right of 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).
This new system seems to mean that a lot of migrants will lose out, but there are also a few unlikely winners:
Luckily, the appeal rights for EU applications, which are governed by the Immigration (EEA) Regulations 2006 as amended, will remain untouched – mainly since the government cant do anything about it due to binding EU laws.
Losers – All legal Migrants
By April 2015 all applications under immigration rules, save for the exceptions of Protection and Human Rights decisions, will be affected by these new rules.
The government has been implementing this in phases; Tier 4 student decisions were the first to lose the full appeal rights on 20th October 2014; all other applications under the Points Based System e.g. Tier 2 (worker) and Tier 1 also lost their full appeal rights as of 2nd March 2015 and it is expected that on the 6th of April 2015 all lawful migrant will lose their full rights of appeal.
One may wonder why I may look at this as a loss to migrants, after all doesn’t it mean that the migrant pays less in appeal costs and that the appeal time is shorter, thus their spouse would see them sooner if the decision is positively reviewed, right?…. well, maybe!! As a UK Immigration lawyer and a Human Rights Solicitor I have my reasons to be sceptical.
Firstly, having dealt with the UK Immigration sector for a while and having seen some of the shocking decisions that case workers make, I would not trust the same people to do a proper review – it goes against the oldest principle in law on natural justice, think about it, would you bite the hand that feeds you?
Also, in the past when applicants have appealed the Home Office would have had sufficient time to review such decisions before passing the case to their lawyers to defend the appeal in court, but this was not done. If the Home Office were serious about self-review the courts would not be backlogged with cases, as most decisions would have been reviewed positively before even getting to court hearings where the court would overturn the decision…
Winners – Over stayers and “illegal immigrants”
Hard to believe it, especially in the run up to election where the issue of immigration is a hot topic, but some of the unlikely beneficiaries are those without legal stay in the UK who, due to their lack of visa can only qualify to apply for a visa under Human Rights.
The current positions is that if you have no valid visa when making an application for leave, should your application be refused, you would have no right of appeal and would either have to wait until the government serves you with removal directions, which may generate a right of appeal or seek a more expensive process of bringing a claim of Judicial Review through the Immigration upper tribunal or high court. The cost of this coupled with the fact that such a person would have no right to work meant that most would have no option to challenge such a refusal, no matter how strong their case is.
Alternative Options – Judicial Review
Given that now moving forward there would be no appeal outside the human right and protected cases, your immigration lawyer would be prudent to include any Human Rights Arguments in his legal representation cover letter when you are submitting your application for a visa; this may prove crucial should the application be refused, as you would then still be able to appeal under Human Rights. With good legal argument most applicants would be able to use the Right to Private Life or Family Life, which encompasses a lot of things.
Of course not all will be able to bring their case within this Human right clause, which although it can be wide is a restrictive right which must be weighed against the public interest to control immigration and the protection of the economic welfare of the country, so inevitably they will end up under the Home Office new system of self review in which case, although the person reviewing the case will be someone different from the original caseworker who made the decision, they will still be on the Home Office’s pay role.
Contrary to government predictions, this new law will ultimately increase the bill for most migrants seeking justice, as after a Home office administrative review they will have to find a Human Rights angle to appeal the case and will have to seek a costly Judicial Review.
Apart from this process being expensive, the migrant would risk becoming an over stayer as their leave would not be automatically be extended when they file the Judicial Review action (although is the Home Office decision is quashed the stayer would in theory have been reinstated of judicial review is successful– taking parties back to position before the illegal decision) – this has serious implications as, if the person bringing the Judicial Review action has no right to live and work in the UK, how will he afford the action? Also, due to the new clause by the act, he can’t rent a house, drive, open a bank account or use the NHS.
Whereas the government’s concern on the time and cost of old appeal system is welcomed, one cannot help wondering whether a replacement with an non-independent review board is a suitable replacement, given that it would ultimately mean the further curtailment of migrant right, will make more persons illegal and ultimately backlog the upper tribunal with Judicial Review Applications, which will stretch the government resources even further.
Removing full appeal rights does not necessarily make the process cheaper if you can’t get your case assessed by someone independent and have to then do down the route of Judicial Review, which is twice as expensive as the old appeal system.
A simple solution would have been to make more use of the internal administrative review along side the existing appeal process, that way they would reduce the number of cases that ultimately end up in court and are allowed anyway, it would save both the migrant and the government money and time.
I sympathises with the government tough job of controlling immigration and meeting their unrealistic election pledge of reducing UK immigration (I really do!!) but the government seem to have missed the point by taking away full right of “legitimate” migrants, pushing the cost of independent legal remedy to more expensive process of judicial review and risking more people becoming “illegal”.
Ultimately a need to use a good immigration solicitor to deal with your immigration case whether in making the application, challenging the application view administrative review or even judicial review has been given heighten important as the stakes are now very high and you should try at much as you can to get it right the first time, as not doing so will cost you much more – a Good Uk immigration solicitor will help you better your chances in application, give you a better foundation for an appeal under Human Right if application is refused and give you a better fighting chance to challenge the case under New Administrative review or Judicial review…..
If you have been affected by this issue or any other UK immigration matter, please contact Tito, a UK Immigration and Human Rights Solicitor, for a Free Initial Consultation about your legal options – it’s free! Call 07544 669131 Or on Skype: tito.mbariti.