- BY Colin Yeo
New duty to keep Home Office informed
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When reviewing the Home Office’s new Appeals Guidance policy document I was reminded of a new feature of the appeals regime that is an important one but which was tucked away in the schedules to the Immigration Act 2014. A new expanded section 120 of the 2002 Act is introduced by paragraph 55 of Schedule 9 and came into effect with sections 1, 15 and 17(2) as of 20 October 2014 for the groups already described previously (foreign criminals and students):
The new s.120 notices can be served not only if a person is pursuing an appeal but if a human rights or protection claim is made, any application for leave to enter or remain has been made or a deportation or removal decision has been made.
Once served on a person it imposes an ongoing duty to inform the Secretary of State as soon as reasonably practicable of any new or additional reasons the person should be permitted to remain or should not be removed. A failure to do so will risk certification under the amended section 96 of the Nationality, Immigration and Asylum Act, subsection 2 of which now provides:
(2) A person may not bring an appeal under section 82 if the Secretary of State or an immigration officer certifies—
(a) that the person has received a notice under section 120(2),
(b) that the appeal relies on a ground that should have been, but has not been, raised in a statement made under section 120(2) or (5), and
(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in a statement under section 120(2) or (5).
This latter change is wrought by paragraph 41 of Schedule 9. Certification has the effect of preventing a person bringing an appeal. Failing to keep the Home Office informed can therefore have serious consequences for an appeal, although there are no other sanctions for those not intending to pursue an appeal.
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2 responses
I was trying to work out when and how this new s120 regime might work, and what advantage might be gained from using it. In the context of students and deportees, I am not sure it means much. Presumably a student will get one with a refusal to extend leave. It might serve as a mechanism for making a human rights claim, but the HO will presumably require them at that point to make an application under the family or private life rules. And presumably too, it will be the mechanism by which a person notified that they are being considered for deportation can make their asylum or human rights claim. The joy of the old s120 process though was that it allowed a person to change the basis of their appeal, post-decision. But with the loss of appeal rights, s120 sort of loses its mojo.
As I read it, the student application carries a right of appeal if it includes the sentence “removal of the applicant from the United Kingdom would be a breach of the respondent’s duty under section 6 of the Human Rights Act 1998.” (see commencement order).
If the Ho forgot to certifiy this obvious human rights claim with the decison, then you’re good to appeal!