- BY Colin Yeo
Appeals and the Immigration Bill
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The new Immigration Bill (see Ronan’s previous post “Summary of clauses“) is so packed with nastiness that some really unpleasant parts of it – perhaps the whole of it – will make it to the statute book. No mainstream politician with influence will today stand up for the rights of immigrants and their families. The Lib Dems must have signed off on the contents of the Bill. Labour has said the party not only supports the Bill but would go further in introducing tougher measures.
Appeal rights are too technical and complex to attract headlines. And the removal of appeal rights is far from being the most socially damaging, racist part of the Bill. As a lawyer working to correct legal wrongs, though, it is the part I feel best able to write about. Here I try to peer into the future.
The end of immigration appeals?
The Bill removes appeal rights against decisions made under the Immigration Rules and even removes the ‘not in accordance with the law, including Immigration Rules’ ground of appeal.
For over 40 years we have had an immigration tribunal to correct administrative decisions profoundly affecting people’s lives. At first glance it now looks like conventional immigration law will come to an end. Seasoned lawyers in this field will recall that refugee law appeals were only created in 1993 and human rights appeals in 1998. Only these Johnny-Come-Lately appeals will remain while the original purpose for the immigration tribunal will be removed.
It would appear that tribunals will continue to exist for tax disputes, school place allocation, parking fines and welfare benefits, but not where one is accused of a sham marriage, faced with permanent separation from spouse or children or removed from the country.
In fact, though, it seems to me that immigration appeals will essentially continue, albeit in more complex form, and that judicial reviews will considerably grow. As I previously wrote, families will not simply accept their own extinction. They will find ways to fight on.
Human rights appeals
Human rights appeals will continue, although as currently drafted the Bill will actually remove all appeals against entry clearance decisions, including in human rights cases involving children and spouses (because of the s.113 NIAA 2002 definition of human rights claim, see members’ forum thread). This seems to be an error and ILPA is working on the issue (do join, they really need our support for this kind of work).
At the moment, contrary to the fantasies of Theresa May and Paul Dacre, human rights arguments are the last resort of any decent lawyer. Human rights applications will always be refused by the Home Office and without rules to guide, the outcome on appeal is a lottery. Anyone sensible will seek to fit their case within the Immigration Rules.
In future, that option will no longer be available on appeal and anyone who wants to contest a decision to refuse entry or to remove (a lot of people) will be forced to rely on the human rights arguments the politicians purport to hate.
Nevertheless, the Immigration Rules will still need to be considered in human rights appeals. Step 3 of the famous 5 steps set out in Razgar [2004] 2 AC 368 is to ask whether the interference with rights is in accordance with the law:
(i) Will there be an interference by a public authority with the exercise of the applicant’s right to respect for his private or family life?
(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(iii) If so, is such interference in accordance with the law?
(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?
If the decision is not in accordance with the law, there is no need to go as far as steps 4 and 5 to ask whether the interference is proportionate. So, if it can be shown that human rights are engaged in some way and that the Immigration Rules, as properly understood, were contravened in the making of the decision, the appeal will need to be allowed on human rights grounds without even getting as far as considering proportionality.
It is an unnecessarily convoluted and indirect way of doing things and it creates an artificial reliance on human rights arguments, which will no doubt be lamented later by the very politicians who created the problem. If one’s aim is to reduce reliance on human rights arguments (and abolish the Human Rights Act and replace it with domestic remedies) then it is the equivalent of using water to extinguish a chip pan fire. Which leads us neatly on to the subject of judicial review an an alternative remedy.
Judicial review
Where there is no adequate alternative remedy, a person who alleges that a decision made by the Executive branch of government may bring an application for judicial review. The removal of immigration appeal rights will create many more such people, and will therefore increase the number of applications for judicial review at the same time that politicians are trying to reduce the number of applications for judicial review.
Where an application and appeal does raise human rights issues (family migration cases, for example, or long residence in the UK, or where there are vested rights in a course of study or employment) then it looks like a human rights appeal will be possible, with compliance with the Immigration Rules being indirectly argued as described above.
Where there are no human rights issues, as in some Points Based System cases, particularly for entry to the UK, the only independent remedy will be an application for judicial review. In some ways these are more expensive because legal costs are higher, there is a risk one will have to pay the costs of the other side if one loses (although good luck claiming costs from someone abroad), it is lengthier and more convoluted as a legal process and it is not generally a facts based appeal where the judge will substitute his or her own decision at the end of the case. Nevertheless, immigration decisions can be very important to those affected, some of whom will want to pursue judicial review as a remedy.
Judicial review can be a lot cheaper than an appeal, particularly in some of the more obviously awful immigration decisions. Where the decision is withdrawn or the applicant wins the case, he or she should be able to recover legal costs and also perhaps damages from the immigration authorities.
Lastly, from 1 November 2013 almost all judicial reviews will be heard in the Immigration and Asylum Chamber of the Upper Tribunal (“Transfer of immigration judicial reviews to Upper Tribunal“). It seems that the main effect of the removal of simple appeal rights is to omit the First-tier Tribunal, jump straight to the Upper Tribunal and, therefore, increase the number of immigration judicial reviews reaching the higher courts.
Human rights for overstayers
One group looks set to benefit from the changes: overstayers. At the moment the arcane sophistry of the immigration notices that trigger appeal rights mean that overstayers who apply to remain on the basis of residence and family in the UK often have no right of appeal. They are left in limbo. In future, though, as long as they have made a human rights claim if they are refused that will trigger an instant human rights appeal. So long Daley-Murdock, and thanks for nothing.
Foreign criminals
Foreign criminals will also retain appeal rights as they always rely on human rights arguments to resist removal anyway. However, it is proposed that some will only be able to exercise appeal rights from abroad.
As with the existing ‘clearly unfounded certificate’ system for asylum claims the Home Office considers to be poor, such certificates can be challenged by applications for judicial review.
There will no doubt be many such challenges where the meaning of “a real risk of serious irreversible harm” is hammered out in the courts and, probably, pursued to Strasbourg. See the useful UK Human Rights Blog piece on this, Deport first, appeal second.
What does the future look like?
The twin bogeymen of judicial reviews and human rights claims will actually go forth and multiply: they will be the only avenues of redress for desperate people. Remedies will be more expensive to both individuals and government. Simple and cheap fact based appeals will be curtailed. A few businessmen, skilled workers and students who currently have appeals will not in future. Overstayers and foreign criminals will have, in some ways, improved appeal rights and ways of resisting removal.
The whole purpose of the tribunal system was supposed to be to provide cheap, efficient and effective justice in the field of administrative decision making. The complexity of immigration law combined with the volume of work generated by deep rooted organisational dysfunction at the Home Office has rendered those aims almost unattainable.
This Immigration Bill seeks to address the symptoms without treating the underlying illness. By doing so, it will compound the problems.
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15 responses
In my opinion the SSHD is unlikely to lament the increase in human rights arguments and judicial review as that will play into her long term plans – reform / repeal of the Human Rights Act, withdrawal from ECHR and reform (read decimation) of judicial review. I suspect that a short term rush of human rights appeals is just what she feels she needs as that will enable her to blame the HRA / ECHR for the problems that she is creating (ooops telling the country she is trying to solve).
I agree, I think it will actually suit them quite well. It is difficult to believe that immigration appeals would be removed entirely after the election, though – it seems more likely that they’d have to legislate again to remove the human rights ground of appeal and put back the immigration rules one. But that might be me being optimistic.
The formerly communist countries of Eastern Europe have joined the Council of Europe and the ECHR since becoming democracies, it can only be hoped that a UK gov’t would not proceed with withdrawal due to the political damage to the UK’s reputation and credibility which would result.
If “not in accordance with the law, including Immigration Rules” is no longer a ground for appeal, ECOs and HO officers will at least partially be above the law. Especially for those who can’t afford JR or assistance with human rights arguments, given the state of legal aid.
There will probably be a further increase in the amount of people using the EEA route (Singh) to bring their spouses to the UK, at least among those for whom it is viable to work or run a business for while in another EEA country and without being split from children in school etc etc.
When the government purports to have reliable and useful statistics on immigration, has anyone looked into the reason for the departure and return of British citizens? It would give some idea of the use of the European route and of more permanent emigration which might or might not be due to the immigration rules, a representative sample of people would need to be surveyed.
Human nature means “regulation kicks end up in regulation kick backs”, a turn of phrase that I have changed from another area of behaviour. It doesn’t solve the problem, it just results in most educating themselves to circumvent the regulation, and only the innocent suffer under one of those false defences – eg ignorance or following orders.
From eg motor regulations to immigration rules how are Mrs May or the Conservatives going to keep immigration to a reasonable reciprocal level. As Andrew has indicated, Singh is an obvious “circumvention”, especially as little as 4 months now has precedent in case law. France and Ireland are probably the favourite choices with ferries and trains available to avoid the EC38 non-compliant airline industry.
Answer is simple. Tackle the large areas using the 80% 20% rule. If there is no focus, there will be no notable effect, especially with the experience of all of the Home Office. Police spend most of their time dealing with minor matters at the expense of major matters that affect people more – eg the latest rules on middle lane hoggers.
Family migration is so small compared to the figures overall, and the refusals have such little effect on numbers, but disproportionate effects on familes.
The root of the problem I study, and is more philosophical, but up from that there is the problem with secular government. How do you otherwise limit people who think they have absolute power in governing people using absolute laws? I use the term absolute not because they are, but because they think they are.
Recent experience tells me that Mrs May is helping UK citizens to become more racist, especially among the young mob-rule teenagers, many who have no jobs. Eggs thrown at the house, verbal racial abuse, laser light shining is now an almost daily occurance for our family down here in Kent over the last month. Even EU nationals who are mainly white say they are targeted.
Thanks Mrs May, when will you be changing the HO logo, you know, the bit that refers to a more tolerant society?
That’s awful, I’m sorry. Many of us have been really worried that would be the outcome of the messages being sent by politicians and it is horrible to think it is happening. There have been a couple of grim incidents recently, but politicians like May will never accept the responsibility that is theirs. They will instead keep banging on about how important it is that their ‘conversation’ isn’t suppressed, as if anyone was ever doing so.
The traditional position under the sovereignty of parliament means that in theory the party/ies with a majority have absolute power. There is no written constitution to restrain them and the monarch interfering by for eg. not signing a bill is unheard of and would cause a constitutional crisis. So the ECHR is important for that reason too.
I wanted to say though sorry to hear about what is happening to your family. That’s disgusting and I hope the police can be of some assistance.
Benefit Sanctions Must Be Stopped Without Exceptions in UK?
Petition Calling For Benefit Sanctions To Be Scrapped Hits Nearly 2000 Signatures In First Few Hours
http://you.38degrees.org.uk/petitions/benefit-sanctions-must-be-stopped-without-exceptions-in-uk
Hi there i am in this problem area my wife is mexican i m british and my son to he is now 15 months i have watched him grow over skype for over a year first steps and words now and change from baby to little person , I have payed out all saving i have for visa and also flights ect ect and hospital bills as no nhs in mexico. But this is not taken into consideration at all 5 grand it tallies up to i am on benefits and disabled due to a accident but i have worked up to then for over 15 years and served in the armed forces to i am so desperate to get this visa as its very hard to watch over a pc your marriage and son grow up , out of the 3 years we have been together and married i think we have only been together for 1 year as the situation has been very hard with the laws , My wife is educated to degree level and was working for the mexican government she has worked all her life and i have gone back to re tain to have to do home courses but i have just got 3 top a level in music technology and want to go to uni to do music technology and work in a studio as my legs and foot are not good and this job would suit me. but i cry every night and so much to take . ALL I WANT IS TO HAVE A CHANCE AT BEING A FATHER AND BEEN A GOOD HUSBAND .
My case is a sample of how it will make genuine people suffer. I applied for ILR on long stay basis. I came as a student for masters , i did my PhD with full funding and worked on a prestigeous european aerospace research project. I finished my PhD and started working in a small start up company . I am on tier-1 dependent now. I applied for ILR. but i noticed that there is some issue in 2005 when i started my PhD … I applied for student visa extension through university student batch scheme. i applied before my visa is expired. But unfortunately, i did not receive back from them for nearly 37 days. Once i got the information from university international office on declined payment, i arranged an alternative payment within a week and got visa extension.
My ILR refused stating that i overstayed during that period. They refused it without right to appeal. But as per SAR File from them, it clearly shows that PRP called for and they resent to university only after 1 month. I clearly mentioned my address in the application. There are two questions : 2.8. Write address where you stay, 2.9. Address to deliver documents or communication from home office (if it is different from the above).. I wrote same address in 2.8 and 2.9 but scribbled address in 2.9 as it is same. Now home office rejected my ILR that as address is scribbled, it is my fault . If they sent to the address given in the application ,i would have received it. but i did not receive it .It might be the problem from home office or royal mail. If i would have received, i would have arranged another form of fee within 1 or 2 days.
As i am on tier-1 general dependent , they allowed me to stay till end of my stay. But, the issue is : how , i can arrange payment without knowing the payment was processed and declined??
As it happened in 2005 before 2007… Immigration Act 2007 applies. I am victim of one of the wrong decision..But i dont have appeal to right. I dont know what happens next in the next year…
Can any one help me with this regard. I can not spend money anymore as i already spent alot. I am feeling that home office planning to remove as many people as possible to gain some political edge.. I am a genuine immigrant contributed and contributing to UK economy.. But they are making me victim…
JASON PROSSER, consider the EEA (Surinder Singh) route. Nani, do you have a copy of your
application from 2005? It may help if you can show that the UKBA sent
a reply to the wrong address.
Hi Vinny, Thank you for your reply.
I got that application from 2005and reviewed and also reviewed case worker notes from SAR File. It clearly shows that the application sent through student batch scheme which is a separate route and department in Home office. Their notes showing that they sent it.
There is no clear evidence where they sent. but it clearly shows a case worker wrote ” prp not claimed for,Application and Documents Resent ( As per Home office customer service people, It means documents / message that they sent to inform about declined payment or application rejection did not delivered to the applicant and returned back to them).
I gave correct address( In case, if they sent it to my personal address..) . The address is still valid as it is student accommodation for masters and PhD students run by University student accommodation.
How my application can be withdrawn (there is no evidence that my application was withdrawn) if i did not get information about rejected payment. There is no evidence that application and documents were moved from home office mail room.. There is no evidence that they sent letter with declined payment information.
The reason that they cited is : Your argument stating that the information should sent to the college. But in the question2.9, you wrote an address and scribbled. No where in the other parts of application, address is not scribbled. It clearly shows that they sent it to my private address or not sent. But q.2.9 clearly shows that “if the address is different from the address given in q.2.8). q.2.8 has correct address.. This is questionable.. But they did not give right to appeal.. So i have left with only Judicial Review which i can not afford. It is same for so many genuine and good immigrants.
I dont know any barrister/solicitor who can offer me NO WIN NO FEE service for judicial review .. Can any one suggest one..
Is it possible for home office to revert back its decision if i send an explanation letter on how their decision is not correct? Can any one here help me?? please. I dont know any human rights organisations.. I would like to approach them too.. Could you please suggest few of them. I dont want to leave this here as it is not fair to make me victim without my fault. Please help me.
JASON PROSSER, alternatively, if you are subject to E-ECP.3.1 (c), then adequate maintenance and accommodation are required.
I have passed on everything but of course been disabled i have limited funds all my savings i had have gone on flights a and this visa and a lawyer so i have none , also my wife has very limited so its not the accommodation or the 18.5 its the no money in mt bank account . And this is going to be hard to get round as of course i can not work and my wife at the moment she has our son and can not leave him for 15 hours a day to work for a 3rd of what wage we get here in uk as it will take 15 years to hit any where near the amount they’re talking. I am hopeful in march 3-5 when the high court re do the laws again if not i have the chance to appeal but of course i always think of the worst as so hard to get anywhere here ???
And vinny we have already looked into do what you have advised and as i said i have no hope even getting out to europe let alone working for 3 months .