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“No right of appeal” human rights decisions


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There can be few immigration practitioners who do not presently encounter decisions in relation to applications made on the basis of peoples’ private and family life which do not carry the right of appeal. In recent years the prevailing tendency has become to segregate decisions, where the applicant is an overstayer or illegal entrant, such that refusals to vary leave to remain are made without further steps to enforce removal, leaving migrants without an appealable immigration decision which would gain them access to a merits appeal in the First-tier Tribunal (because overstayers do not enjoy the right of appeal given section 82(2)(d) of the Nationality Immigration and Asylum Act 2002, and absent any duty to make speedy removal directions when refusing applications, see Daley-Murdock [2011] EWCA Civ 161). Numerous considerations arise in these cases as to the remedies available and their scope.

limbodancepartyWhen applications based on personal relationships and UK connections are made to the Home Office in the modern era, they need to be argued firstly under the Rules and secondly outside them, latter arguments being voiced in the language that decision makers find most appealing, i.e. via the Secretary of State’s own policy (Family members under the Immigration Rules), which sets out a dichotomy by which “exceptional circumstances” leading to “unjustifiably harsh consequences” may suggest infringement of Article 8 and thus call for a grant of leave outside the Rules on the ten year route to settlement, whereas “compassionate factors” will indicate the grant of (a different form of) Leave Outside the Rules “which may be unrelated to Article 8 (eg serious ill health)”: though MM (Zimbabwe) [2012] EWCA Civ 279 reminds us that the availability of health treatment may well be relevant in the assessment of proportionality where there are firm family ties here, suggesting that the line between the two classes of case is not an unwavering one.

The remedy upon the refusal of such applications, absent a right of appeal, will necessarily be recourse to judicial review, now brought in the Upper Tribunal. Not every overstayer application misses out on a right of appeal, however, for under the Home Office policy on Requests for Removal Decisions a person who did not receive removal directions together with the refusal of their application for leave should do so if there are dependant children aged under 18 who have lived in this country for more than three years or are British citizens, or where the applicant is being supported from public funds, or where there are “exceptional and compelling reasons” present (though the policy is activated only by an express request in a Pre Action Protocol letter).

Upon judicial review, it may be expected that the Tribunal will apply the law as set out in the extant decisions of the higher courts, both domestic and European, addressing the interpretation of Article 8, though having regard to the clear pointers to proportionality in the average case that may be inferred from the categories of private and family life that Appendix FM and Rule 276ADE themselves recognise, as discussed by Beatson LJ in Haleemudeen [2014] EWCA Civ 558. There are questions of substantive law as to whether the decisions are lawful and compatible with the Applicant’s fundamental rights: e.g. whether there was a two-stage process in which the second-stage consideration (admittedly one which is necessary only where there are sufficiently exceptional or compelling circumstances to warrant the possibility that there would be a different result outside the Rules than within them – see Nagre [2013] EWHC 720 (Admin) and Gulshan [2013] UKUT 640, as confirmed by Shahzad (Art 8: legitimate aim) [2014] UKUT 85 (IAC)); whether the correct legal code has been applied, bearing in mind that Edgehill [2014] EWCA Civ 402 teaches us that applications made before 12 July 2012 should be evaluated on the basis of the then extant Rules; whether the best interests of the child have received appropriate consideration, taking account of the historic recognition by both the executive and judiciary that seven years of residence may well represent sufficient time to have established strong links here; whether private life has been evaluated with respect to the Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) guidance which shows that the reality of connections in both country of return and the UK needs to be measured and compared; whether appropriate attention has been given to the degree of precariousness exhibited by the person’s past residence here, taking account of the Strasbourg Court’s tendency to evaluate Article 8 rights borne of legal residence by the yardstick of reasonableness rather than the “insurmountable obstacles” test that applies to those with no firm immigration status (see for example Ahmed [2014] EWHC 300 (Admin)); whether or not the each critical limb of the application has been comprehended by the decision maker and given appropriate attention, including the full diversity of personal, professional and family relationships, mental and physical health concerns, and the actual difficulties that would result from relocation abroad.

Whilst traditionally lawyers are used to arguing judicial reviews via the lens of public law with its particular interest in illegality (including material errors of fact and failures to take account of relevant considerations), procedural irregularities, and irrationality, these cases are different. In Nasseri [2009] UKHL 23, Lord Hoffmann said that when a judicial review alleges infringement of an ECHR right the position was different from normal domestic judicial review proceedings (where the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer): in these cases there must be a rigorous audit of the correctness of the decision itself. In A v Chief Constable of Kent Constabulary [2013] EWCA Civ 1706 Beatson LJ stressed (at VIII(i)) that intensive review is nevertheless not a full merits review and explains (at VIII(ii)) that procedural failings may still have some relevance to the review process. And whilst a decision maker who correctly deploys their expertise taking proper account of all material aspects of the evidence before them will deserve a margin of respect, refusal letters which overlook relevant considerations will be more prone to being set aside, as shown by Lord Mance, in Miss Behavin’ [2007] UKHL 19, stating that where:

“The court is … deprived of the assistance and reassurance provided by the primary decision-maker’s ‘considered opinion’ on Convention issues … its scrutiny is bound to be closer.”

The forthcoming hearings in these cases in the Upper Tribunal are likely to be the anvil upon which the relevant principles are to be more precisely forged.

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Mark Symes

Mark is a barrister at Garden Court Chambers with twenty years of casework experience, he is co-author of the "encyclopaedic... pre-eminent" Asylum Law and Practice and is enthusiastic about all areas of all immigration law, from human rights to commercial cases. Mark is rated as a "real expert" and as "dynamic and brilliant" by Chambers UK 2014.


6 Responses

  1. Blessing in disguise?……Mark do you reckon therefore such cases stand a better chance of success via the JR route than the old conventional appeal route basing on the wider availability of options to run on JR than appeal?

    Taking into account the recommendation of the UT in MF(Nigera)/ Izuazu ‘the unchanged approach of the old Strasbourg jurisdiction in the two tier thresholds of assessment’. Taking into account statutory obligations from 1998 HRA, if its been accepted that the claimant arguably, has some degree of ‘family’ or ‘private life’ though not to degree of curtailment/ of the feared right to make it un proportionate.

    Shouldn’t in real practice such claimant who been denied an internal right of appeal under section 82 of the 2002 Act relay on the statutory provisions of section 65 of the 1999 Act as that would be cheaper in terms of private funding

    (ii) takes shorter time to resolve that JR’s
    (iii) No feared costs orders hanging over their shoulders.

    In your own experience do the UK courts ever give any purposive and practical application into Articles 1, 13 ( effective remedy?

    wouldn’t failure to ‘exercise discretion to making a removable decision’ failure to apply provisions of Published policy and if not supported with strong reasons further justify incompatibility with section 84(i)(f) and hence further proof of unproportionality capable of succeeding under a Human Right appeal under section 65 in cases where a Conventional appeal under s82 has been declined for political correctness?

  2. The appeals provisions in the 1999 Act were repealed by the 2002 Act. That leaves JR for ‘limbo’ cases. It can be an effective remedy, but requires a solicitor and is costly. The UT’s JR jurisdiction is narrower than that of the First-tier’s, so a statutory appeal is to be preferred. The 2014 removes the problem by granting a right of appeal to a refused human rights claim. I do not know though when that part of the Act it is to be commenced.

    1. Thanx Julian……
      It all now makes sense , will take my time and study the 2014 Act, but if it really does restore a Human right appeal, maybe its not a ‘monster’ all through we thought it was.

      It really makes no sense how the 2002 repeal ( of the s65) was for long deemed compatible with sections 3,4 of the Human Rights Act?What is the logic/ rationale of providing a Human Rights applications ( with no internal mechanism of assessing the legality of the resultant decision?)…. save for the fee they bring in?

      90 percent of such applicants wouldn’t come any where near an entitlement of a statutory right of appeal (overstayed their leave) so unless 99 percent of all applications were being granted there had to be an internal way of assessing legality of decisions.’Stateless application’ applications too don’t seem to faring better, hopefully the said remedy conferred under the 2014 will apply to them too. I See fee related challenges ( remission) for those who have paid for HR application in repeat of events following ‘bai bai’ COA challenges!UK.

      Otherwise just cant Wait for the day Art 6 exclusions in Immigratn matters will be shaken if not moved,… cant say never!!.

  3. Also, of course, the Home Office can certify human rights claims thus leaving no right of appeal. Hitherto this has been uncommon but with the 2014 act it may become more common… otherwise there will be a great many human rights appeals.

    I note you (the article author) say the request for removal directions has to be in PAP. I have sometimes made it in the original application. I guess it is somewhat academic, since if they ignore the request in the application you can always put it again in the PAP.

    One advantage of JR is that it bypasses tribunal case law such as Gulshan- or at least, means you won’t be faced with a judge who thinks Gulshan is binding at first instance. On the other hand, it is the same tribunal deciding these claims as decided Gulshan, so my hopes are not high.

    As regards illegality, where there are children involved inevitably section 55 comes into play and (almost as inevitably) the Home Office will have failed to deal with it adequately. Hence illegality is a real submission and also a vital part of the Human Rights case (by virtue of step three of Razgar).

  4. Does the Home office still consider the PAP? I don’t think so. It’s a myth that the HO follows their own policies. It’s been 8 months since I got a refusal and they are still refusing to issue me with removal direction even though I have 3 children who lived here for over 3 years.

  5. Home Offfice does sometimes respond to the PAP. And if you’ve invoked the policy in it the response is usually to reconsider. In fact the response is quite often to reconsider, even when the grounds raised in the PAP were not the strongest! Sometimes they respond negatively though. And on very rare occasions they give a straightforward positive decision without going through the reconsideration hoop- but that was on a different issue from the NRA point we are looking at.

    However, if it has been 8 months you have passed the JR deadline and are probably not going to be able to get a decision from HO.