Rights of Appeal and the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015

Coming hot on the heels of the recent comments by Lord Justice Underhill in Singh v The Secretary of State for the Home Department, who said:

“the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.”

March 2015 brings two significant changes in UK Immigration law; the fourth commencement order in relation to the Immigration Act 2014 and Statement of Changes HC1025.

This reflects a continuing trend by the UK government, despite a litany of judicial complaint that the immigration law system is now approaching particle physics levels of complexity (my words), to make things even more complex.

Even a quick skim through the latest commencement order starts to melt ones brain trying to grapple with the series of transitional provisions.

In summary rights of appeal are being taken away for pretty much every category of applicant, except for refugee claims and human rights claims.

Trying to understand how this will work with reference to the applicable legislation takes some degree of mental gymnastics; in crude summary:

  • The Immigration Act 2014 substituted the entirety of s82 of the Nationality, Immigration and Asylum Act 2002. This substitution essentially limits the right of appeal to only human rights and asylum claims (don’t talk about EEA appeals). The relevant provisions of the 2014 act which do this (s15) were not immediately in force.

 

  • The Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 allowed s15 of the 2014 to take effect from 20 October 2014. However it only began to take effect in relation to certain decisions (students and criminals- nice equiparation).

 

  • The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 amends the previous order (seriously) to allow the 2014 Act to do its work in replacing the old appeals section of the 2002 Act.

 

  • Exceptions are for Tier 1, 2 and 5 applications (including dependant's applications) made before 2 March 2015 (and decided after 6 April 2015), along with any application made before 6 April 2015 but decided afterwards and where the applicant has now no leave to remain (decisions analogous to s82(2)(d) of the 2002 Act.)

Phew. Correct me if I am wrong...

Shortly applicants will be faced with the Home Office reviewing its own decisions rather than have a tribunal undertake this task. Ironically, even after this review period is over, it is likely that an individual could probably make a human rights claim, which will then provide an appeal anyway. Out of all that could be said about these changes the least sustainable position is that they will make it simpler to remove individuals from the UK.

Really, if you have a life here of some substance and then a series of unfair Home Office decisions, its not hard to see how you could argue that eventual removal will breach your fundamental rights.

Referring back to the Home Office’s original justification for these changes is interesting. The document Impact Assessment of Reforming Immigration Appeal Rights notes that:

“The Government therefore believes that reforming the appeals framework, to allow appeals only against the refusal of an application relating to fundamental rights and putting in place an administrative process to correct errors in decision making, would create a more streamlined system, ensuring swifter resolution of disputes relating to refused applications by the most appropriate means for the dispute in question. A power to require certain appeals to take place after the individual has left the country where no serious irreversible harm would result from that departure supports and develops these aims. A less protracted appeals process is preferable for applicants and for the Government, leading to individuals being either granted leave or becoming eligible for removal from the UK earlier.”

The difficulty is however that by segmenting the appeals process it is likely that individuals who are unsuccessful at the administrative review stage will continue to fight on human rights grounds through an appeal. The Impact Assessment presents most non-family appeals as really just about a missing document or factual error. My experience is that PBS appeals often come down to a complex argument about immigration rules transitional provisions, guidance changes or policy applicability. It is unlikely these issues will be resolved satisfactorily by an administrative review. An appeal or judicial review would be the next stage.

This is perhaps the nub of the issue. It is no use for the government to say; ‘we can take away appeal rights because most cases do not need a judge to review matters as our system is so straightforward’ on the one hand, whilst repeatedly and pointlessly making the immigration rules ever more complex.

It only takes a brief review of an immigration law website to see that there is a constant relentless stream of judicial decisions showing the vast numbers of errors which occur by decision makers.  Transitional provisions regarding immigration rules ignored, policies not taken into account, ambiguous rules inconsistently applied, children or dependants not considered properly, judicial precedents ignored.

Even worse there is a flow of decisions about certain core concepts, such as article 8 and the rights of children, which suggest even the senior judiciary cannot quite decide what the rules mean and how they should be applied. Who is likely, against this background, to be content with the Home Office reviewing its own decisions? When that department repeatedly and transparently loses litigation against its own system?

Any good immigration lawyer, faced with a loss of the right of appeal in a traditional sense, is not likely to stop at an unsuccessful administrative review which fails to consider these issues.

The blame for ‘protracted appeals’ is always squarely laid at the door of immigration lawyers by government. We are naughty, you see, by daring to actually try to fight for clients and to unpick the ridiculously laboured system that affects people in such drastic and unfair ways.

This was the attraction of the immigration appeals system; it forced appellants to raise all of the issues that were relevant at the right time. Experienced immigration judges, lawyers themselves, could weigh up each argument presented and decide accordingly. It was as close to a one-stop system as could be designed. Not perfect, far from it, but infinitely preferable to a disjointed series of stages in tackling an adverse decision that are guaranteed to in fact increase the time to resolve issues and make it harder to finally say that a case is finished. This is what we are now facing. It will be a system that serves no-one and certainly not government objectives to speedily and efficiently remove individuals with no right to remain.