Current appeal rights and the Home Office’s Keeling Schedule

I must confess to being a bit bewildered by the changes to appellate rights, which had remained generally static for around a decade, by advent of the Immigration Act 2014. The Immigration Act 2016 promises to make things even worse, but that is for another blog.

Under the old system which was governed by the pre-amendment Nationality, Immigration and Asylum Act 2002, individuals enjoyed an appeal right against a number of different types of immigration decisions. Disingenuously, at the time amendments were being mooted, the then Home Secretary now Prime Minister, Theresa May, used this fact to illustrate the picture of a ridiculous system where an individual would enjoy a dozen separate appeal rights. Of course in reality no individual would receive simultaneous decisions across all of the various categories, but reality that did not suit the objective of justifying a drastic curtailment of appeal rights.

Now there are only appeals against a decision to refuse a protection claim made by an individual, to refuse a human rights claim, or if the Secretary of State has decided to revoke an individual’s protection status[1]. All of these appeal rights relate to either the Refugee Convention (including the subsidiary status of humanitarian protection) or the European Convention on Human Rights. Very broadly they serve to protect against a risk to life in the country of return, a risk of torture or inhuman and degrading treatment in the country of return, or to protect an individual’s right to a private and family life.

Legislation.gov.uk is a useful resource but often the statutes, given the speed of change, do not reflect the amended legislation. The Home Office, in an uncharacteristically helpful act, have published a ‘Keeling Schedule’ which shows the current 2002 Act as amended by the Immigration Act 2014.

I will also confess to look up the genesis of the terminology ‘Keeling Schedule’, which is named after Sir Edward Herbert Keeling a Conservative Party politician in the United Kingdom who served as a Member of Parliament (MP) from 1935 to 1954.

This schedule is helpful. It also serves to highlight an interesting point. The Immigration Act 2014 replaces section 85(5) of the old act. The old s85(5) contained the requirement that if appealing against an entry clearance decision, then only the circumstances at the time of that decision could be considered by the tribunal. This was very recently confirmed in the case of Gurung v The Entry Clearance Officer, New Delhi [2016] EWCA Civ 358, reported on Freemovement. This case considered the old appeals regime.

The interesting point is that the requirement that the tribunal only consider circumstances at the time of the decision to refuse has been removed, yet it is still possible to make a human rights claim in the context of an entry clearance application and have a right of appeal. The Home Office’s Modernised Guidance publication on ‘Rights of Appeal’ confirms this. This document is demonstrative as to quite how difficult the government is seeking to make it even to actually assert a human rights claim in the first place.

This then appears to reverse the position that has held for many years and permits the tribunal to consider circumstances right up to the date of appeal, even in an appeal against an entry clearance officer’s decision. Given that often it can take a year to have an entry clearance appeal listed, this creates an interesting new dynamic.

This topic is also an illustration of why frequent changes in the law are damaging and wasteful. The restriction on raising circumstances arising after the date of an entry clearance decision was argued over for years, in various courts, including in the House of Lords and most recently the case of Gurung. All of that expense, effort and time spent to resolve a difference in how the law was to be interpreted is utterly wasted. We now have a new set of provisions to argue over, which will inevitably generate further jurisprudence, which will no doubt become meaningless with further legal changes in the future. As I understand it, not all areas of law are similarly affected (though many are), and the constant state of flux in immigration law seems to be a particular characteristic. Of course the law can evolve and develop, but constantly changing the fundamental legal framework serves no-one’s interests.

 

 

 

[1] Although appeals under the EEA Regulations 2006 do still exist, under a separate regime that confusingly invokes aspects of the 2002 Act.