Human Rights Appeals and the new 2014 Act. Perhaps an appeal right after all?

Having spent another morning trying to make sense of the recent changes I wrote about yesterday- I think that its important to highlight some critical information in the recent Statement of Changes and Commencement Orders. Reading the various commencement orders, you could be forgiven for concluding that appeals would come to an end for all applications under the Immigration Rules made after 6 April 2015. However the devil is in the detail. Commencement Order No 3 is the first to deal with the replacement of section 82 of the 2002 Act (which pertains to appeals). It contains a definition of a 'Human Rights Claim' at Article 11(5) as:

"(a)“human rights claim” means—

(i)a claim made by a person to the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention); or

(ii)an application for leave to remain made under paragraph 276ADE of, or Appendix FM to, the immigration rules;"

This is significant- the 2002 Act, even after amendment by the 2014 Act does not contain a definition of a Human Rights Claim which includes applications made under certain immigration rules. The standard definition, contained at s113 of the 2002 Act is:

"“human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights."

Why is this important? Well the next commencement order purports to remove that article and replace it with the series of time limited exclusions which appear to eventually cover all applications made under the Immigration Rules.

However an examination of the Explanatory note to the recent Statement of Changes is confusing (maybe just to me). In the section dealing with Administrative Review, those decisions eligible for administrative review appear to exclude applications under Part 8 of the immigration rules and Appendix FM (amongst others). These are really family applications, along with anything under 276ade, which relate to long residence.

The Statement of Changes specifically says that these decisions must pursue "an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review."

This is confusing- since the commencement orders do not appear to say that these decisions will still be eligible for appeal, and logically appear to remove rights of appeal for all applications made after 6 April 2015 under the Immigration Rules.

The key is in the explanatory note where it is said that:

"Section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014) provides a right of appeal against a refusal of a human rights claim. Where there is a right of appeal, an appeal is the appropriate remedy rather than administrative review. A human rights claim under Article 8 of the ECHR is implied in applications made under certain immigration rules listed in paragraphs AR3.2(c) and AR5.2(a). To ensure that there is clarity that consideration of human rights is only conducted under those rules listed, a consequential amendment has been made to paragraph 2. If a person wishes to make a human rights claim they must make an application under the relevant rule or otherwise make a claim outside the rules."

So essentially some types of applications will be considered as Human Rights Claims anyway, but apparently using a definition of 'implied claim' that does not appear in the 2002 Act as amended or in the new 2014 Act which amends it. The definition did seem to appear at article 11(5) of the third commencement order, but this will be deleted by the fourth commencement order and replaced with the definition at s113 of the 2002 Act (which doesn't mention Immigration Rules). Never mind of course that commencement orders are probably not authoritative sources of statutory definitions

This is all very confusing indeed, and perhaps I am missing something fundamental, but unpacking it all, applications under the Immigration Rules under these rules listed below will still have appeals to the Tribunal and the authority for this appears to be the explanatory note to the Statement of Changes:

(i) Paragraph 276B (long residence);

(ii) Paragraphs 276ADE(1) or 276DE (private life);

(iii) Paragraphs 276U and 276AA (partner or child of a member of HM Forces);

(iv) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;

(v) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules, or under paragraph 284, 287, 295D or 295G where the sponsor was granted settlement as a Points Based System Migrant) or has refugee or humanitarian protection status in the UK;

(vi) Part 11 of these Rules (asylum);

(vii) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;

(viii) Appendix FM (family members), but not where an application is made under section BPILR (bereavement) or section DVILR (domestic violence),

Very happy to be corrected on this, but I cannot see any other way to view things.