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Rights and grounds of appeal: commencement and transition
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The major changes to rights of appeal and removal powers wrought by the Immigration Act 2014 took full effect on 6 April 2015, although with some transitional provisions for existing cases. This blog post, based on the second edition of my Immigration Act 2014 ebook, examines and attempts to explain who has a right of appeal under the old regime and who has a right of appeal under the new regime. The ebook includes some additional material and worked examples. The online course available for Tier 1 members on the Immigration Act 2014 has also been updated if you would like to claim CPD for reading the material, and I have added to the course an additional 23 minute video podcast on appeal rights covering rights and grounds of appeal, commencement and dealing with old and existing cases.
It is hard to believe that a more complex way of drafting the commencement orders could possibly have been devised. What follows is a simplification of the relevant commencement provisions: it is not a complete guide to all edge case scenarios. Any errors here are mine, but I am grateful to Jawaid Luqmani and Alison Harvey for their help, time and patience: we delivered ILPA training together on this issue a few weeks ago and there was much discussion beforehand. At one point I was considering giving up immigration law altogether and starting a new blog about cats.
The commencement of the new appeals regime and removal powers have been in three waves. In short, the waves were:
- Foreign criminals and Tier 4 applications (including family members) made on or after 20 October 2014
- Tier 1, 2 and 5 applications (including family members) made on or after 2 March 2015
- Against any decision on or after 6 April 2015 but, other than the above exceptions, not where the application was made prior to 6 April 2015, unless the decision on or after 6 April 2015 includes an asylum or human rights decision.
At the same time as the third wave removed traditional full rights of appeal, the system of Administrative Review under the Immigration Rules was expanded. This is covered in the ebook and will the subject of another blog post later on. It is useful to note that Administrative Review was not expanded to cover short term students, visitors, partners or children of members of the Armed Forces and some Appendix Armed Forces decisions, family members under Part 8 or Appendix FM, asylum decisions under Part 11 and some others. All these types of applicant should if refused and if there are grounds to do so pursue a right of appeal under the new amended section 82 of the Nationality, Immigration and Asylum Act 2002, albeit on human rights or refugee grounds only.
Wave One: from 20 October 2014
Section 1 was brought into effect for some migrants from 20 October 2014 by the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711). The way in which Commencement Order No 3 operated was at Article 2 to commence several sections of the Act, including sections 1 and 15 on removals and rights of appeal, on 20 October 2014 but, importantly, “subject to the saving provision in articles 9, 10 and 11”.
The saving provisions were in fact very extensive, though, and in this wave of commencement there were in reality only two groups of migrants affected.
- The first were foreign criminals who became foreign criminals within the definition of the amended section 117D(2) of the Nationality, Immigration and Asylum Act 2002 on or after 20 October 2014. This definition is examined below in relation to section 19 of the Immigration Act 2014. The power also applied to their family members who are liable to deportation.
- The second group were students who made a Tier 4 application to extend leave to remain on or after 20 October 2014. It also applied to their dependent partners and children who had also made an application to extend leave to remain on or after 20 October 2014.
However, unless the student makes an international protection or human rights claim, students who having made a Tier 4 application on or after 20 October 2014 but then make a different sort of application, whether from inside the UK or outside, become exempt from the new section 10 of the 1999 Act again and the old version applies once more.
Wave Two: from 2 March 2015
The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371) sets out the commencement of waves two and three.
Wave two began on 2 March 2015. Article 7 of the order amends Commencement Order No. 3 to add into the groups affected those who make an application on or after as a Tier 1, Tier 2 or Tier 5 migrant and their partners and children; Tier 4 migrants remain “commenced” so this brings all Points Based System migrants within the new regime where an application is made on or after 2 March 2015 (and for applications on or after 20 October 2014 for Tier 4 migrants).
The same “hokey cokey” in-out provisions of Commencement Order No. 3 applied during the limited currency of wave two, i.e. the regime would be disapplied if a different sort of application was later made. This is unlikely, though, given that wave three began shortly afterwards and had general effect.
Wave Three: from 6 April 2015
Article 8 of Commencement Order No. 4 took effect on 6 April 2015. This again amends Commencement Order No. 3, amending even the amendments wrought as of 2 March 2015.
The saving provisions that limited commencement only to Tier 4 for applications on or after 20 October 2014 then also Tiers 1, 2 and 5 for applications on or after 2 March 2015 are completely replaced by new much more time limited saving provisions for pre-existing applications. Essentially, the new appeals regime is commenced for decisions made on all applications on or after 6 April 2015 and for some applications made before that, in line with the previous versions of the Commencement Orders:1 Where an application for Tier 4 leave to remain application (including family members) has already been made before 20 October 2014 and a refusal decision is made on or after 6 April 2015 which leaves the person with no leave, the old regime is preserved (amended Article 9(a) of the No. 3 Order, wrought by Article 8 of the No. 4 Order) 2 Where an application for Tier 1, 2 or 5 leave to remain (including family members) has already been made before 2 March 2015 and a refusal decision is made on or after 6 April 2015 which leaves the person with no leave the old regime is preserved (amended Article 9(b) of the No. 3 Order, wrought by Article 8 of the No. 4 Order) 3 Where an application was made before 6 April 2015 and a decision is made on or after 6 April 2015 to refuse leave to enter, entry clearance, a certificate of entitlement or to refuse to vary leave which leaves the person with no leave, the old regime is preserved. However, there is an exception to this, which is where the decision is also a refusal of an asylum, protection or human rights claim, in which case the new regime applies (amended Article 9(c) of the No. 3 Order, wrought by Article 8 of the No. 4 Order);
The big question raised by this third group, though, is what amounts to a human rights claim? For example, is an old application made before 6 April 2015 under Appendix FM a human rights claim? If so, there is a right of appeal but limited to human rights grounds only. If not, there is an old style appeal. There is no clear answer to the question and the tribunal or courts will just have to flip a coin. It may matter in some cases but in most cases, because of the Mostafa approach, a human rights only appeal can include consideration of compliance with the relevant Immigration Rules.4 Lastly, where a decision was made before 6 April 2015 and an appeal could have been brought under the old regime or has been brought and is pending, the old regime will apply (amended Article 9(d) of the No. 3 Order, wrought by Article 8 of the No. 4 Order)
Existing and old human rights claims
What about a person who has an outstanding judicial review challenging refusal of a human rights claim? Many such cases in truth seek a new removal decision that would trigger a right of appeal: the applicant can never succeed with the Home Office because the Immigration Rules are not satisfied, but if the facts are strong might succeed on a right of appeal to an independent judge.
The problem is that under the new regime there is no such thing as a removal decision, only a general power to remove, and anyway a decision to remove does not generate a right of appeal, only refusal of a human rights claim does that. The judicial review cannot achieve a right of appeal, it would seem.
The way forward is probably to withdraw the judicial review and to make a new human rights claim. For as long as the Upper Tribunal’s determination in Waqar remains good law, the claim should address the fresh claim test at paragraph 353 of the Immigration Rules. Any new application will potentially incur the NHS surcharge, unfortunately.
The same applies to old cases where a human rights claim has been made and rejected but with no right of appeal. The commencement of the new regime cannot magically confer a right of appeal on an old case, but a new application could, assuming while Waqar lasts that the fresh claim test is met and that the application fee and NHS surcharge are affordable or that the person is exempt.
Finally, for reference, links to all of the commencement orders collected together in one place:
- Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820)
- Immigration Act 2014 (Commencement No. 2) Order 2014 (SI 2014/1943)
- Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711)
- Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371)
- Immigration Act 2014 (Commencement No. 5) Order 2015 (SI 2015/874)
If you would like to read all of my legal analysis on the Immigration Act 2014 and further worked examples collected together in one place, take a look at the ebook or join up as a Tier 1 member and access the training course and video podcast.