PART 2: THE IMMIGRATION ACT 2014- On outright removal, restriction and certification of appeal rights

The Government has made and continues to make substantial sweeping changes to the law in relation to immigration and asylum and some of these changes have come into force today. The appeal rights and the detailed wider basis of bringing grounds of appeal as brought into force by the Nationality, Immigration and Asylum Act 2002( the 2002 Act) have either been removed altogether or severely restricted. Instead wide certification powers have been brought into force such that no in- country right of appeal may be brought and in some cases sometimes only leaving as an avenue of challenge to the Secretary of State’s decision the procedure of Administrative Review or indeed Judicial Review.

The Secretary of State has the following certification powers which have the effect of requiring a person to appeal from outside the UK:

(i) a protection or human rights claim under section 94(1) of the 2002 Act if the claim is clearly unfounded;

(ii)a protection or human rights claim under section 94(7) if the person is to be removed to a third country where there is no reason to believe that their human rights will be breached;

(iii)a protection or human rights claim under Schedule 3 to the 2004 Act if it is proposed to remove him or her to a safe country for that claim to be considered;

(iv)a human rights claim by those liable to deportation as a foreign criminal under section 94B of the 2002 Act where there is not a real risk of serious irreversible harm if they are removed while the appeal is pending;

The following changes brought into effect by the Immigration Act 2014 are in force as of today:

Section 15 – Right of appeal to First-tier Tribunal provides:

“(1) Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) is amended as follows.

(2) For section 82 substitute—

“82 Right of appeal to the Tribunal

(1) A person (“P”) may appeal to the Tribunal where—

(a) the Secretary of State has decided to refuse a protection claim made by P,

(b) the Secretary of State has decided to refuse a human rights claim made by P, or

(c) the Secretary of State has decided to revoke P’s protection status.

(2) For the purposes of this Part—

(a) a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom—

(i) would breach the United Kingdom’s obligations under the Refugee Convention, or

(ii) would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

(b) P’s protection claim is refused if the Secretary of State makes one or more of the following decisions—

(i) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations under the Refugee Convention;

(ii) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

(c) a person has “protection status” if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;

(d) “humanitarian protection” is to be construed in accordance with the immigration rules;

(e) “refugee” has the same meaning as in the Refugee Convention.

(3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.”

(3) Sections 83 and 83A (appeal rights in respect of asylum claims) are repealed.

(4) For section 84 substitute—

“84 Grounds of appeal

(1) An appeal under section 82(1)(a) (refusal of protection claim) must be

brought on one or more of the following grounds—

(a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;

(b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

(3) An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds—

(a) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations under the Refugee Convention;

(b) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.”

(5) In section 85 (matters to be considered), for subsection (5) substitute—

“(5) But the Tribunal must not consider a new matter unless the Secretary of

State has given the Tribunal consent to do so.

(6) A matter is a “new matter” if—

(a) it constitutes a ground of appeal of a kind listed in section 84, and

(b) the Secretary of State has not previously considered the matter in the context of—

(i) the decision mentioned in section 82(1), or

(ii) a statement made by the appellant under section 120.”

Section 15 of the 2014 Act replaces section 82 of the Nationality, Immigration and Asylum Act 2002(“the 2002 Act”) and repeals sections 83 and 83A. The new section 82 provides that a right of appeal to the Tribunal will arise where the Secretary of State has decided to refuse a protection claim, or a human rights claim, or to revoke previously granted protection status. Section 15 is being brought into force from 20 October 2014, subject to saving and transitional provisions, by the The Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014. Regulations ensure that persons continue to be given notice of decisions that attract a right of appeal after these changes have taken effect.

The Immigration (Notices) Regulations 2003 make provision about how persons are to be given notice of decisions where the decision has a right of appeal. Those Regulations are amended by the Immigration (Notices) (Amendment) Regulations 2014 to make changes which are a consequence of the appeals measures in the Immigration Act 2014 and the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

The new Section 84 therefore no longer has as a ground of appeal that the decision is not in accordance with immigration rules or that the decision is otherwise not in accordance with the law.

Section 17 of the Immigration Act 2014 requires insertion of Section 92 into Part 5 of the Nationality, Immigration and Asylum Act 2014 as follows:

“17 Place from which appeal may be brought or continued

(1) Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) is amended as follows.

(2) For section 92 substitute—

“92 Place from which an appeal may be brought or continued

(1) This section applies to determine the place from which an appeal under section 82(1) may be brought or continued.

(2) In the case of an appeal under section 82(1)(a) (protection claim appeal), the appeal must be brought from outside the United Kingdom if—

(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country), or

(b) paragraph 5(3)(a), 10(3), 15(3) or 19(b) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe third country) applies.

Otherwise, the appeal must be brought from within the United Kingdom.

(3) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if—

(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country) or section 94B (certification of human rights claims made by persons liable to deportation), or

(b) paragraph 5(3)(b) or (4), 10(4), 15(4) or 19(c) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe third country) applies.

Otherwise, the appeal must be brought from within the United Kingdom.

(4) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was outside the United Kingdom, the appeal must be brought from outside the United Kingdom.

(5) In the case of an appeal under section 82(1)(c) (revocation of protection status)—

(a) the appeal must be brought from within the United Kingdom if the decision to which the appeal relates was made while the appellant was in the United Kingdom;

(b) the appeal must be brought from outside the United Kingdom if the decision to which the appeal relates was made while the appellant was outside the United Kingdom.

(6) If, after an appeal under section 82(1)(a) or (b) has been brought from within the United Kingdom, the Secretary of State certifies the claim to which the appeal relates under section 94(1) or (7) or section 94B, the appeal must be continued from outside the United Kingdom.

(7) Where a person brings or continues an appeal under section 82(1)(a) (refusal of protection claim) from outside the United Kingdom, for the purposes of considering whether the grounds of appeal are satisfied, the appeal is to be treated as if the person were not outside the United Kingdom.

(8) Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is finally determined, the appeal is to be treated as abandoned unless the claim to which the appeal relates has been certified under section 94(1) or (7) or section 94B.”

Further section 17 of the Immigration Act 2014 requires insertion of Section 94B into Part 5 of the Nationality, Immigration and Asylum Act 2014 as follows:

“(3) After section 94A, insert—

“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, 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.”

Section 94B of the Nationality, Immigration and Asylum Act 2002 allows a human rights claim to be certified where the appeal process has not yet begun or is not yet exhausted where it is considered that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return. The result of certification under section 94B is that the right of appeal against the decision to refuse the human rights claim will be non-suspensive, meaning it will not be a barrier to removal. Any appeal can only be heard out-of-country.

If the representations raise protection or human rights grounds and it is decided to refuse the claim, the Secretary of State must consider whether the claim should be certified under existing powers (section 96 and section 94 of the 2002 Act, in that order) or, in the case of non-protection human rights claims, under section 94B of the 2002 Act (as inserted by the 2014 Act), which allows the certification of human rights claims made by those liable for deportation in certain circumstances.

If it is not possible to certify an asylum and/or human rights claim under sections 96, 94 or 94B, then the foreign criminal will have an in-country right of appeal

If post-decision representations do not raise protection or human rights grounds then there will be no right of appeal against the decision.

On 20 October 2014 the Home Office published relevant Guidance- Section 94B Certification Guidance for Non-European Economic Area Deportation Cases”. The Guidance makes it clear that Section 17(3) of the Immigration Act 2014 amended the 2002 Act to introduce a discretionary certification power in relation to human rights claims made by those liable to deportation under sections 3(5)(a) and 3(5)(b) of the Immigration Act 1971.

The Guidance acknowledges that Human rights claims which can be certified under section 94 of the Nationality, Immigration and Asylum Act 2002 should not normally be certified under section 94B because section 94 is a stronger power which will usually take precedence, and in any case will have the same effect as section 94B certification. Further Protection claims made wholly or in part under Articles 2 and/or 3 of the European Convention on Human Rights cannot be certified under section 94B. This is because they must be certified under section 94 if they are clearly unfounded, and if they are not clearly unfounded, then it will be arguable that there is a real risk of serious irreversible harm.

In order for certification not to be possible, there must be a real risk of harm that would be both serious and irreversible. When deciding whether it is appropriate to certify a human rights claim under section 94B, case owners must consider whether an out-of-country appeal would result in a real risk of serious irreversible harm before the appeal process is exhausted. The serious irreversible harm test is derived from the European Court of Human Rights (ECtHR), which uses it to determine whether they should issue Rule 39 injunctions preventing removal. The term “real risk” is a relatively low threshold and has the same meaning as when used to ascertain whether removal would breach ECHR Article 3. However, the terms “serious” and “irreversible” must be given their ordinary meanings. “Serious” indicates that the harm must meet a minimum level of severity, and “irreversible” means that the harm would have a permanent or very long-lasting effect. If the human rights claim is based on Article 8, case owners must consider not only the impact on the foreign criminal’s rights, but also those of any partner or child.

The Guidance further acknowledges that although the serious irreversible harm test sets a high threshold, there may be cases where that test is met. Such cases are likely to be rare, but case owners must consider every case on its individual merits to assess the likely effect of a non-suspense right of appeal. In relation to dual certification, the guidance provides that if a protection claim is certified under sections 94 or 96, but it is not possible to certify a linked Article 8 claim (or other non-protection human rights claim) under either of those powers, then consideration must be given to certifying the Article 8 claim under section 94B as long as there is not a real risk of serious irreversible harm.

Additionally on 20 October 2014 the Home Office published the “Appeals Guidance” on the 2014 Act which explains the operation of the immigration appeals system as found in Parts 5 and 6 of the Nationality, Immigration and Asylum Act 2002 (The 2002 Act) as amended by Part 2 of The Act. The Guidance makes it clear that during the transitional phasing period some appeals may continue under the former appeals regime. The main changes to appeals made by the 2014 Act are that a right of appeal only arises when the Secretary of State (i) refuses a human rights claim; (ii) refuses a protection claim, namely a claim for refugee or humanitarian protection status; (iii) revokes protection status, namely refugee or humanitarian protection status. Refusal of other applications (and other immigration decisions such as a removal decision or curtailment of leave) will not give rise to a right of appeal. It may be possible for a person to apply for an administrative review of a refusal of an application if it is an eligible decision and it is alleged that a case working error has occurred. If a person has made an application to enter or remain in the United Kingdom (UK), has made a protection claim, or a human rights claim, or a decision to remove or deport has been made, the person may be served a “one stop notice” under section 120 of the Nationality, Immigration and Asylum Act 2002 (as amended by the 2014 Act). This notice places an ongoing duty on a person to raise any additional reasons or grounds (other than those in the application) that would permit him/her to remain in the UK. The purpose of this notice is to require a person to raise reasons and grounds at an early stage and to prevent matters being raised at the last minute. If no response is made to the notice but the person makes a late claim, if refused, the claim can be certified under section 96 of the 2002 Act, such that there will not be a right of appeal if the claim could have been raised earlier (and there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice, s96(2)(c)).

The grounds on which an appeal can be brought are set out in section 84 (as amended) and in summary provide that the appeal can only consider the refusal of the claim made (including a new matter where consent is given). Section 85 (as amended) sets out the matters the Tribunal can consider. The main change is that the Tribunal can only consider a “new matter”, which has not been considered by the Secretary of State if she has given the Tribunal consent to do so. A matter is a “new matter” if (i) it constitutes a human rights or protection claim, and (ii) the Secretary of State has not previously considered the matter. The Guidance provides examples of what are likely to constitute new matters. A new matter should not be raised before the Tribunal unless the Secretary of State has had a chance to consider the new matter. A person may wish to raise a “new matter” as part of an appeal under section 82(1), the Tribunal however, must not consider a new matter unless the Secretary of State has given consent for the Tribunal to do so.

If the Tribunal considers a new matter without the Secretary of State giving consent for it to do so, it will act outside its jurisdiction. The Secretary of State may seek to appeal the decision of the Tribunal to consider the “new matter. If the Secretary of State withholds consent the appeal should proceed on the basis of the original matter(s) only.

If an appeal is allowed the original decision will have been found by the Tribunal to be unlawful on the basis that it breached a person’s human rights and/or the right to protection under the Refugee Convention and/or Humanitarian Protection. The Home Office must respond to the allowed appeal by reconsidering the original decision. In most cases this will mean granting the immigration leave that the applicant would have been entitled to on the factual findings of the Tribunal. Where there is a challenge as to how the Home Office has implemented an allowed appeal the route for this will be through Judicial Review.

CONSIDERATION & CONCLUSION

The changes in Section 15 and 17 of the 2014 Act are clearly aimed primarily at either restricting or removing altogether the appeal rights of Foreign National Prisoners who are liable to deportation and even those not liable to deportation. There is always a risk of litigation when the law is changed and it can be argued that in such cases commencement of judicial review proceedings challenging the certified decision in order to obtain an in-country right of appeal may be a real possibility in appropriate cases.

There are yet more changes to come into force in relation to the Immigration Act 2014 and as may be expected in the context of immigration law, it will hardly be surprising that litigation and relevant test cases will arise from the Upper Tribunal, the High Court, Court of Appeal and perhaps the Supreme Court no matter how long it may take for the legal issue in dispute to be finally resolved judicially.

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