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You can’t just decide to not obey the law, immigration officials informed


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On 4 August 2020, the Home Office issued new guidance to its civil servants on how to respond to immigration appeals that the department has lost. The 18-page document can be found here (pdf download). For the most part, the guidance is welcome. Anyone who has ever won an appeal knows the pains of writing to the post-decision team again and again trying to actually get the decision implemented. The new guidance looks to eradicate or at least minimise that. 

The guidance acknowledges straight off the bat that:

It is unlawful to “deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it” Mersin (2000) EWHC Admin 348.

This is, unfortunately, how it feels for a lot of practitioners. In the most recent appeal I did, it took four months and a pre-action protocol letter complaining about the delay before the decision was implemented.

Entry clearance appeals are even worse because applicants usually need to hand in their passport, meaning it’s common to wait for the better part of six months from the appeal being allowed to the visa being issued. That may not sound like long but that’s potentially another six months of separation for a torn-apart family, or six months of lost employment income for someone struggling to pay the bills for lack of a right to work.

Presumably this new approach is an attempt to reduce any complaints/claims arising from delay. The guidance acknowledges those risks:

An allowed appeal should be implemented promptly, otherwise the individual may not be able to access benefits and services to which they are entitled, and they may bring a judicial review challenging the delay in implementation.

Another useful bit of clarification is that, where the determination finds that the relevant Immigration Rules are met, the Home Office agrees that it should grant the leave or entry clearance provided for in those rules.

This is particularly important in Appendix FM cases. There was a period of confusion when the Immigration Act 2014 was implemented because appeals could no longer be brought on the basis that the decision was not in accordance with the Immigration Rules. We had to do a detour and explain why that misapplication of the rules was a breach of human rights in order to appeal against certain decisions. That led to a lot of people who were successful being granted leave on the ten-year route to settlement rather than the five-year route, because the Home Office considered they had been successful on “human rights grounds”. Being forced to wait double the time for settlement means spending huge chunks of cash on extension applications. Having this clarity is a welcome addition, even if it does come five years late. 

The guidance is also arguably more generous than necessary. It notes that where a parent’s appeal has been allowed but where a dependent child did not appeal the same decision, the caseworker:

should consider whether implementation of the allowed appeal has implications for the dependants and, if so, take the necessary action. 

It also does a decent job of telling officials to stop moaning about judges and get on with the job:

You cannot decide not to implement an allowed appeal because you think the Tribunal had no jurisdiction to allow the appeal. Any dispute about the Tribunal’s jurisdiction must be raised at the appeal or in an onward appeal. Where the jurisdiction of the Tribunal is not successfully challenged, the determination of the Tribunal will be valid and must be implemented. 

The Tribunal is responsible for interpreting the law. Where the Tribunal allows the appeal any disagreement about the decision must be raised at the appeal or in an onward appeal, otherwise the appeal must be implemented. You cannot refuse to implement an allowed appeal simply because you do not agree with it. 

The one part where this guidance falls down is where it talks about facilitating re-entry for people who were removed from the UK before their appeal. This might be if their human rights claim was certified as “clearly unfounded” or — the one that still annoys me the most — people who were removed during pending EU law appeals

In those cases, you would expect the Home Office to do the legwork. After all, you’ve won your appeal and been considerably inconvenienced by potentially having left your job and your family behind.

[ebook 14398]

Not so, says the guidance. The template letter to be issued to successful appellants says that they must formally apply to return online (selecting “the return to the UK” option at this link). So that’s exactly what I did, filling in the form from the point of view of someone whose appeal was successful.

There is no application fee but the process is as tortuous as ever. Why do you need to know my parents’ names and every country I’ve travelled to in the last ten years? They also have the audacity to make you go through the usual appointment booking process, meaning you need to register on VFS Global or TLSContact websites with their Kafkaesque technical issues. You are then treated like any ordinary punter and are even offered paid-for slots at the visa centres.

The document is silent on who pays the airfare for a successful appellant to return. No doubt the Home Office will try to dodge responsibility in the usual manner.

The idea that someone who was removed on foot of an unlawful decision should then need to pay for their flight back to the UK, or for appointments to get their return visa, sounds outrageous but is potentially not illegal. After R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 in the Supreme Court, there was a rush of cases where people tried to return pending their appeals, but the Court of Appeal said that there is no presumption in favour of return even if the underlying decision was unlawful.

All in all, this guidance does a decent job of ironing out some creases but I suspect it’s just going to encourage more litigation on some bigger issues.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.