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New commencement order introduces out of country human rights appeals and more


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The end of immigration appeals from within the UK is nigh: section 63 of the Immigration Act 2016 is being brought into force from 1 December 2016 by the Immigration Act 2016 (Commencement No. 2 and Transitional Provisions) Regulations 2016 (SI 2016/1037SI 2016/1037). The change introduces a power for the Home Office to remove a person who pursues a human rights appeal even while the appeal is pending.

A similar power was introduced in the Immigration Act 2014 but applied only to foreign criminals. It is now extended to all migrants who might rely on a human rights appeal. Given that the only grounds on which normal family immigration decisions can now be appealed are human rights grounds, this change affects a wide spectrum of “ordinary” migrants whose application has been refused by the Home Office.

Other provisions are also being brought into force in November and December 2016, all discussed below.

Impact of out of country appeals

The success rate for human rights appeals was 35% in the most recent tribunal statistics for 2015-16 (see main tables, table FIA.3). The average time taken to determine immigration appeals stood at 44 weeks for the most recent quarter, an increase of 14 weeks compared to the previous year (table T1). This is despite a 26% decline in the number of appeals since 2015. There are now 65,000 outstanding appeals waiting to be determined, an increase in the backlog of 22%.

So, in 35% of cases, the appellant would ultimately win their appeal. In the meantime, though, he or she will have to leave the UK, potentially losing his or her job and home and being separated from his or her partner and children, pay £800 to lodge an appeal, wait for nearly a year and then be readmitted to the UK once the Home Office decision is found to be wrong.

The massive appeal fees, the removal of the appellant from the UK and starving the tribunal of funds in order to prolong appeal times is all calculated to persuade people not to bother. We can expect far fewer people will lodge appeals, whether meritorious or not.

The amended section 96 of the Immigration Act 2014 will from 1 December 2016 provide as follows (removed words struck out in red, added words in bold green):

94B Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a person (“P”) who is liable to deportation under—

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or
(b) section 3(6) of that Act (court recommending deportation following conviction).

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed refusing P entry to, removing P from or requiring P to leave the United Kingdom, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed refused entry to, removed from or required to leave the United Kingdom.

It is likely that guidance will be issued on or around 1 December 2016 explaining how the Home Office proposes to exercise this power. The key case on the similar power for foreign criminals is Kiarie and that case, the current guidance and the possible differences in application of the power to foreign criminals and others are discussed in my ebook and course on the Immigration Act 2016. The course includes several talking head videos and clear signposting on what is in force and what is not.

It seems that the Government is set on creating a single tier of tribunal appeal; but that single tier is to be the Upper Tribunal in the limited scope of the judicial review jurisdiction. The First-tier Tribunal is being increasingly marginalised.

Other appeals provisions

It is not just section 63 of the Immigration Act 2016 which is being brought into force. Sections 64 and 65 repeals also come into force on 1 December 2016 as does section 62 and the power to cancel section 3C leave where a person has failed to comply with a condition of leave or has used deception in seeking leave, whether successfully or not.

Access to services provisions

Further “right to rent” residential tenancy provisions also come into force on 1 December 2016, including:

  • Section 39 of the Immigration Act 2016, which creates a new offence of knowingly leasing premises to a person who does not possess the right to rent by inserting new sections 33A, 33B and 33C into the Immigration Act 2014
  • Section 40 of the Immigration Act 2016, which inserts a new section 33D into the Immigration Act 2014 which enables a landlord to terminate a residential tenancy agreement in certain circumstances

Draft guidance has also been published for the courts in considering the defence of taking steps to end a residential tenancy agreement. This establishes an approximate benchmark of a tenancy finally ending within 3 months of a landlord discovering that a tenant was a disqualified person.

The Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016 (SI 2016/1060) have also been laid, coming into effect on 1 December 2016. These set out the prescribed form of notice to be used by landlords for the purpose of ending a tenancy without a court order under section 33D(3) of the Immigration Act 2014 as amended.

A draft version of the Immigration Act 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2016 has also been laid, presumably for consultation. The intended commencement date appears to be 30 October 2017. These regulations are linked to sections 40A to 40G of the Immigration Act 2014 as amended by the Immigration Act 2016. These provisions require banks and building societies to close current accounts where an account holder fails an immigration check. A recent inspection report revealed a 10% error rate with these checks.

Illegal working and labour market enforcement

Various provisions on illegal working and labour market enforcement are also now scheduled to come into force, including:

  • Sections 14 to 30 of the Immigration Act 2016 come into force on 25 November 2016, which create new “labour market enforcement undertakings and orders”.

  • Section 37 and Schedule 5 of the Immigration Act 2016 come nto force on 1 December 2016 and provide for limitation, denial or deprivation of private hire licences to those who do not have permission to work or whose permission to work is restricted.

  • Section 38 and Schedule 6 of the Immigration Act 2016 come into force on 1 December 2016, which create “illegal working closure notices” and “illegal working compliance orders”.

The Illegal Working Compliance Orders Regulations 2016 (SI 2016/1058) have also been laid, coming into force 1 December 2016.

Finally, various new enforcement powers are also commenced and as of 21 November so is the language requirement for public sector workers provided for at sections 77 to 84.

All of these provisions are covered in detail in my ebook and course on the Immigration Act 2016.

The Hostile Environment will be fully armed and operational by 1 December 2016.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.