UK Certification Procedure and Appeals: What the Home Office Consider A Weeding Out of Abusive, Spurious, Repetitious And Unfounded Claims

Although an applicant   who submits a claim  to the Home office   has the hope that  the  outcome will be positive, that claim may however be refused  with the Home office subjecting it  to the certification procedure.  The certification  procedure operated by the Home Office   in relation to human rights and asylum claims  has the effect of either  an outright denial of a right of appeal  or a  requirement  that such an appeal right be  pursued  after the person  has  left the UK.

Home Office policy as regards certification is clear:

Home Office Guidance Policy  Rights of appeal  Version 3.0 states, The appeals system contains a number of controls to prevent abuse of the system. In particular there are mechanisms to prevent repeat representations giving rise to repeat appeals, late claims giving rise to late appeals that delay removal and deportation, and unfounded claims giving rise to an appeal that delays removal”

Further Home office Policy Guidance  “ Certification of Protection and Human Rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims) Version 2.0  states:

“Policy intention behind certification

 The underlying policy intention when certifying protection and/or human rights claims is to protect the integrity of the immigration system and deter unfounded claims by:

  • preventing appeals delaying removal, where protection and human rights claims are clearly unfounded
  • supporting the reduction of intake of spurious protection or human rights claims by processing clearly unfounded cases quickly and to a high standard, thereby enabling resources to focus on those who are in genuine need of protection
  • supporting the reduction in asylum support costs by significantly reducing the time between the claim and decision stages in clearly unfounded protection claims “.

Knowing that it is usually not possible to predict (as opposed to providing a reasoned assessment of the chances of success),  the outcome  of a claim, an  applicant  would in any event  wish to   have a right to  an in- country right of appeal where the claim is  refused.   An in – country right of appeal, among other matters,  will   give a reasonable assurance that whilst that appeal is pending,  a person would be permitted to  remain in the UK  and also  preserves other rights  that person may have such as   the ability to continue  working in the UK  whilst the appeal is in  progress.  An affected person may  have a   British citizen   or EEA national  partner/child in the UK, and as such   being allowed to  remain in the UK  whilst pursuing that  appeal  right enables   family life to continue here  until  determination of  the  appeal, which may take some months to be concluded.

APPEAL RIGHTS  AND GROUNDS OF APPEAL

  • NON- EEA APPEALS:

The  Keeling  Schedule  prepared by the Home Office helpfully  shows Part 5 of  Nationality, Immigration and Asylum Act 2002( “2002 Act”)  as amended by the Immigration Act 2014,  Sections 15 and  17 and Schedule 9 Part4.

The new framework for appeals established by the Immigration Act 2014 against refusal of protection and human rights claims  came fully into force on 6 April 2015. However there were saving provisions made in the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 to protect certain persons who had rights of appeal at the time they applied for leave to enter or remain.

In accordance with the Immigration Act 2014 (Commencement No. 3, Transitional

and Saving Provisions) Order 2014, the post-Immigration Act 2014 appeals regime applied to the following individuals from 20 October 2014:

  • a person who becomes a foreign criminal within the definition in section 117D(2) of the 2002 Act on or after 20th October 2014
  • a person who is liable to deportation from the United Kingdom under section 3(5)(b) of the 1971 Act because they belong to the family of the person.

By virtue of the Immigration Act 2014 (Transitional and Saving Provisions)

Order 2014, the post-Immigration Act 2014 appeals regime applied to any decision to make a deportation order, decision to refuse to revoke a deportation order, or decision made under section 32(5) of the UK Borders Act 2007 made on or after 10 November 2014 in respect of:

  • a person who is a foreign criminal within the definition in section 117D(2) of the 2002 Act
  • a person who is liable to deportation from the United Kingdom under section 3(5)(b) of the 1971 Act because they belong to the family of the person

Under Section 82 of the 2002 Act a person may appeal to the Tribunal where a decision has been made to either:

  • refuse a protection claim
  • refuse a human rights claim
  • revoke protection status

A protection claim is a claim that removal of a person would breach the UK’s obligations under the Refugee Convention or in respect of a person eligible for a grant of humanitarian protection (Section 82(2)(a) 2002 Act).

A human rights claim is a claim that to remove a person from or require them to leave the UK or to refuse them entry into the UK would be unlawful under section 6 of the Human Rights Act 1998.  In this regards, further reference can  be made to  the    currant Home Office  Guidance policy Rights of appeal Version 3.0”- https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/458403/Rights_of_appeal_guidance_v3_0.pdf

Rights of appeal exist against the following decisions:

  1. Refusal of a human rights or protection claim and revocation of protection status. These appeal rights are in Part 5 of the Nationality, Immigration and Asylum Act 2002 Act;
  2. Refusal of entry clearance and refusal to vary leave to remain, in some situations, where the application was made before the Immigration Act 2014 was in force;
  3. Refusal to issue an EEA family permit as well as certain other EEA decisions. These appeal rights are in Regulation 26 of the Immigration (European Economic Area) Regulations 2006;
  4. Deprivation of citizenship. Section 40A of the British Nationality Act 1981 applies.

Where there is no 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.

The following applications made  in the UK under the Immigration Rules are human rights applications and the starting position is that there is a right of appeal against refusal:

  • Paragraph 276B (long residence);
  • Paragraphs 276ADE(1) or 276DE (private life) ;
  • Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
  • Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
  • Part 8 of these Rules (family members) where the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK;

But not: paragraphs 319AA to 319J (PBS dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant);

  • Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM; Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
  • Appendix FM (family members)

But not: section BPILR (bereavement) or section DVILR (domestic violence)

The following claims made outside the UK  under  the Immigration Rules are human rights applications and there is a right of appeal against refusal:

  • Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
  • Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application ;
  • Part 8 of these Rules (family members) where the sponsor is present and settled in the UK or has refugee or has humanitarian protection status in the UK.

But not: paragraphs 319AA to 319J (PBS dependents), paragraphs 284, (sponsor granted settlement as a PBS Migrant) ;

  • Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
  • Appendix FM (family members)

But not: section BPILR (bereavement) or section DVILR (domestic violence)

Under Section 84  of the  2002 Act, an appeal against a refusal of a protection claim must be brought on one or more of the following grounds:

  • removal of the appellant from the UK would breach the UK’s obligations under the Refugee Convention;
  • removal of the appellant from the UK would breach the UK’s obligations in relation to persons eligible for a grant of humanitarian protection;
  • removal of the appellant from the UK would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention);

An appeal against the revocation of refugee status or humanitarian protection may only be brought on the grounds that removal would breach the UK’s obligations under the Refugee Convention or the UK’s obligations in relation to persons eligible for a grant of humanitarian protection.

In accordance with section 85 Nationality, Immigration and Asylum Act 2002, the Tribunal must not consider a new matter, (which amounts to a ground of appeal listed in section 84) unless the Secretary of State has given the tribunal consent to do so.

Section 92 of the 2002 Act sets out if a person can bring an appeal from within or outside of the UK. Where the person was outside the UK when they made the claim, they must appeal from outside the UK. When the person was inside the UK when they made a claim they may appeal from within the UK unless the claim has been certified under Section 94 or 94B of the 2002 Act.

Section 92  of the 2002 Act  should be read together with sections 94 and 94B which relate to certification when an appeal that would otherwise take place in the UK must be lodged after the appellant has left the UK.

Under Section 3C of the Immigration Act 1971 leave is statutorily extended for those situations where a person had leave when they made an application or claim and that leave expired prior to the Secretary of State  making a decision on the application or claim. Leave is extended until any appeal against refusal is finally determined.

Section 3D of the 1971 Act provides for the extension of leave until any appeal is determined where a person’s leave is varied so that no leave remains.

Where the right of appeal is exercised from within the UK, Section 78 of the 2002 Act provides that the appellant will not be removed while the appeal is pending.

Note: Relevant Home office Guidance Policy for Consideration, “Rights of appeal Version 3.0”-

  • EEA APPEALS:

Under section 109 of the 2002 Act, regulations can be made to provide for an appeal against an EEA decision. The Immigration Act 2014 makes no specific provision for appeals against EEA decisions.

An EEA decision made before 6 April 2015 is governed by the (EEA regulations pre-6/4/15).

An EEA decision made on or after 6 April 2015 will be governed by the revised EEA regulations.

The EEA regulations have been amended to reflect the legal position as set out in the Immigration Act 2014 for asylum, protection and human rights claims.

Under regulation 26 of the Immigration (European Economic Area) Regulations 2006 (‘The EEA Regulations’) there is a right of appeal where a European Economic Area (EEA) decision has been made. An EEA decision means a decision under the Regulations that concerns:

  • a person’s entitlement to be admitted to the UK;
  • a person’s entitlement to be issued with or have renewed, or not have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card;
  • a person’s removal from the UK;
  • the cancellation pursuant to regulation 20A, of a person’s right to reside in the UK;

But an EEA decision does not include decisions under regulations 24AA (non-suspensive appeal certifications) or 29AA (readmission to admit case in person following non-suspensive removal).

POWERS OF CERTIFICATION

  • SECTION 94(1) CERTIFCATION: CASE BY CASE BASIS- 2002 ACT –APPEAL FROM OUTSIDE THE UK

Section 94(1) of the 2002 Act allows the Secretary of State to certify a protection and/or human rights claim as clearly unfounded on a case by case basis.

To be clearly unfounded a Home office caseworker must be satisfied that the claim cannot, on any legitimate view, succeed. The cases of Thangarasa and Yogathas [2002] UKHL 36 and ZL and VL v SSHD [2003] EWCA Civ 25 give the following guidance:

  • a manifestly unfounded claim is a claim which is so clearly without substance that it is bound to fail
  • it is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it.

In ZL and VL v SSHD [2003] EWCA Civ 25 the court also stated: ‘‘Where an appellant’s case does turn on credibility, the fact that the interviewer does not believe the appellant will not, of itself, justify a finding that a claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the appellant’s story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone’’.

Under section 94 asylum and human rights claims made in the UK can therefore be certified such that the claim cannot be relied upon to make an otherwise non-suspensive right of appeal into a suspensive appeal. In all cases where a protection and/or human rights claim is refused Home Office caseworkers are required to consider whether certification is appropriate and cases that are clearly unfounded should be certified unless an exception applies.

A protection claim may be certified if: a claimant raises nothing that could be considered as amounting to a fear of mistreatment on return; taking account of the person’s circumstances and the objective evidence, it is clear that there is no arguable basis that the feared mistreatment will arise on return; if it is clear from the objective evidence that the mistreatment feared, even if it did occur, would not amount to persecution or serious harm or if there is an option of international relocation.

A human rights claim may be certificated where based on a parental relationship if there is no evidence of a genuine and subsisting relationship between parent and child or the child is not British and has been in the UK for less than 7 years and there is no evidence of any arguably exceptional circumstances.

A human rights claim based on partner relationship may be suitable for certification if there is no evidence that the relationship is genuine; the relationship is fairly new; or the claim does not raise any circumstances which suggest that family life with their partner could not continue overseas and there is no evidence of any exceptional circumstances.

A human rights claim based on other family relationships may be suitable for certification where; the Article 8 claim is based on a relationship other than partner, child or adult dependent relative, such as two adult siblings or a parent/child relationship where the child is aged 18 or above, and there is no evidence of any arguably unusual level of dependency or exceptional features in the claim.

A private life claim may be suitable for certification where: the claim is based on limited job prospects in their country of origin; the claim is that private life would be breached owing to a medical condition but no evidence of the condition has been provided, the condition is not serious or treatment is available in country of return or that the claim is by an adult aged 25 or over who has lived in the UK for less than 20 years as an adult, and the claim does not raise any circumstances which suggest there would be very significant obstacles to the claimant’s integration into the country to which they would have to go if required to leave the UK, and there is no evidence of any exceptional circumstances.

Examples of Article 8 claims which are not likely to be suitable for certification include where there is a child of the family who is a British Citizen; there is a child of the family who is not a British Citizen but has lived in the UK for 7 years or longer; or there are genuine obstacles to the applicant continuing family life outside the UK but these obstacles are not insurmountable.

The presence of a child within a family does not prevent consideration of whether certification is appropriate, however Home Office   caseworkers are required to make sure they carefully consider the claim of the family as a whole and also as individuals.

The effect of certification under Section 94 is to restrict the right of appeal against refusal so that the claimant can only appeal once they have left the UK (referred to as a non-suspensive appeal).

When a person brings or continues an appeal relating to a protection claim from outside the UK following certification under section 94, the appeal is to be treated as if the person were not outside the UK.Home office policy is that further submissions should not be certified under Section 94.

Where further submissions are rejected and there is no fresh claim under paragraph 353 there no claim to certify. If further submissions are accepted as a fresh claim this means the claim has a realistic prospect of success at appeal so it cannot be clearly unfounded.

Sections 94(3) and 94(4) of the 2002 Act- List of Designated  States:

Section 94(3) provides that when refusing protection and/or human rights claim from a person entitled to reside in one of the listed states, the Secretary of State must certify the claim unless satisfied that the claim is not clearly unfounded.

Section 94(4) contains a list of designated states.

A state is included on the list (‘designated’) if there is in general in that state or part of it no serious risk of persecution of persons entitled to reside in that state or part and removal to that state or part of it of persons entitled to reside there will not in general contravene the UK’s obligations under the European Convention on Human Rights (ECHR).

Section 94(5) allows the Secretary of State for the Home Department (SSHD) to designate:

  •  all of a state
  •  a geographical part of a state
  •  a state in respect of a description of a person
  •  a geographical part of a state in respect of a description of a person

Where partial designation exists, only those cases that meet the designation criteria can be certified under Section 94(4). However  home office caseworkers must consider certification under Section 94(1) on a case-by-case basis where section 94(4) is not applicable.

Note: Relevant Home office Guidance Policy is “ Certification of Protection and Human Rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims) Version 2.0” https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421559/Certification_s94_guidance_-_2.0_EXT.pdf

  • SECTION 94(7) CERTIFCATION: THIRD COUNTRY : 2002 ACT – APPEAL FROM OUTSIDE THE UK     

Under Section 94(7), the Secretary of State may certify a protection claim or human rights claim made by a person if it is proposed to remove the person to a country of which he is not a national or citizen, and  there is no reason to believe that the person’s rights under the Human Rights Convention will be breached in that country.

In determining whether a person in relation to whom a certificate has been issued under subsection (7) may be removed from the United Kingdom, the country specified in the certificate is to be regarded as—

-a place where a person’s life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion, and

-a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention or with the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.

  • SECTION 94B CERTIFCATION – 2002 ACT –APPEAL FROM OUTSIDE THE UK

Section 17(3) of the Immigration Act 2014 amended the Nationality, Immigration and Asylum Act 2002 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(6) of the Immigration Act 1971.

Section 94B allows a human rights claim to be certified where the appeals process has not yet begun or is not yet exhausted and the Secretary of State considers that removal pending the outcome of an appeal would not breach section 6 of the Human Rights Act 1998. One ground upon which the Secretary of State may certify a claim under section 94B is 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 section 94B certification is that the right of appeal against the decision to refuse the human rights claim is non-suspensive, meaning it is not a barrier to removal. Any appeal can only be lodged and heard, or continued if the claim is certified after the appeal is lodged, while the person is outside the UK.

When a person brings or continues an appeal relating to a protection claim from outside the UK following certification under Section 94B, the appeal is to be treated as if the person were not outside the UK.

The 2006 EEA Regulations have also been changed to allow non-suspensive appeals in certain EEA cases to reflect the provision in the Free Movement Directive, although the power is different.

The leading judgment on section 94B  is Kiarie & Byndloss v SSHD [2015] EWCA Civ 1020, handed down by the Court of Appeal on 13 October 2015.

The relevant policy Guidance is  “Section 94B of the Nationality, Immigration and Asylum Act 2002, Version 5, 30 October 2015”.

  • SECTION 33 AND SCHEDULE 3 OF THE 2004 ACT- SAFE THIRD COUNTRY CERTIFICATION -–APPEAL FROM OUTSIDE THE UK    

  Safe third country legislation is  found at Section 33 and Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) which came into force on 1 October 2004.

 Schedule 3 recognises the particular status of European countries that are subject to Dublin II requirements including Eurodac.

The Secretary of State may certify 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.

Any appeal right against the decision to refuse leave to enter or treat as an illegal entrant where an asylum or human rights claim has been made will be non-suspensive if the claim(s) are certified under Schedule 3 to the 2004 Act.

Any human rights claims certified as “clearly unfounded” under Schedule 3 (paragraph 5(4) in relation to Dublin countries at Part 2 or paragraphs 10(4) in Part 3, 15(4) in Part 4, or 19(c) in Part 5, as appropriate in other cases) maintain non-suspensivity.

The Immigration Rules provide:

“Third country cases

  1. (1) In a case where the Secretary of State is satisfied that the conditions set out in Paragraphs 4 and 5(1), 9 and 10(1), 14 and 15(1) or 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are fulfilled, he will normally decline to examine the asylum application substantively and issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as appropriate.

(2) The Secretary of State shall not issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 unless:

(i) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity at the border or within the third country or territory to make contact with the authorities of that third country or territory in order to seek their protection; or

(ii) there is other clear evidence of his admissibility to a third country or territory.

Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country or territory before the removal of an asylum applicant to that country or territory.

345(2A) Where a certificate is issued under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 the asylum applicant shall:

(i) be informed in a language that he may reasonably be expected to understand regarding his removal to a safe third country;

(ii) be provided with a document informing the authorities of the safe third country, in the language of that country, that the asylum application has not been examined in substance by the authorities in the United Kingdom;

(iii) sub-paragraph 345(2A)(ii) shall not apply if removal takes place with reference to the arrangements set out in Regulation (EC) No. 343/2003 (the Dublin Regulation) or Regulation (EC) No. 604/2013; and

  1. iv) if an asylum applicant removed under this paragraph is not admitted to the safe third country (not being a country to which the Dublin Regulation applies as specified in paragraph 345(2A)(iii)), subject to determining and resolving the reasons for his nonadmission, the asylum applicant shall be admitted to the asylum procedure in the United Kingdom.

(3) Where a certificate is issued under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 in relation to the asylum claim and the person is seeking leave to enter the Immigration Officer will consider whether or not he is in a position to decide to give or refuse leave to enter without interviewing the person further. If the Immigration Officer decides that a further interview is not required he may serve the notice giving or refusing leave to enter by post. If the Immigration Officer decides that a further interview is required, he will then resume his examination to determine whether or not to grant the person leave to enter under any other provision of these Rules. If the person fails at any time to comply with a requirement to report to an Immigration Officer for examination, the Immigration Officer may direct that the person’s examination shall be treated as concluded at that time. The Immigration Officer will then consider any outstanding applications for entry on the basis of any evidence before him.

(4) Where a certificate is issued under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 the person may, if liable to removal as an illegal entrant, or removal under section 10 of the Immigration and Asylum Act 1999 or to deportation, at the same time be notified of removal directions, served with a notice of intention to make a deportation order, or served with a deportation order, as appropriate”.

Asylum claims may therefore  be refused without substantive consideration of the application if the applicant can be returned to a safe third country. A safe third country is one of which the applicant is not a national or citizen and in which a person’s life or liberty is not threatened by reason of race, religion, nationality, membership of a particular social group or political opinion. It is also one from which a person would not be sent to another State in contravention of his rights under the 1951 Convention relating to the Status of Refugees and the 1967 New York Protocol.

Third Country Unit (TCU) is responsible for making all decisions on safe third country grounds. The Third Country Unit considers two broad types of asylum cases. Most are those which come under the arrangements provided by the Dublin Convention or the Dublin II Regulation (the “Dublin arrangements”). Some are third country removals outside of those arrangements –ie  non-Dublin cases.

Council Regulation (EC) No 343/2003 “Dublin II” establishes the criteria and mechanisms for determining the EU Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

Eurodac allows for the computerised exchange of fingerprints solely in order to support the application of the Dublin arrangements by identifying those applicants already known to other participating states.

Outside the Dublin arrangements, applicants are generally returned either to the safe third country of embarkation or, more rarely, to another safe third country if evidence exists that the applicant would be admitted to that state.

In all safe third country cases TCU caseworkers must be satisfied that:

  • The applicant is not a national or citizen of the country of destination;
  • The applicant’s life and liberty would not be threatened in that country by reason of race, religion, nationality, membership of a particular social group or political opinion; and the government of that country would not send the applicant to another country other than in accordance with the 1951 Convention (the concept of ‘non-refoulement’). As with other types of removal, the removal to a safe third country must not breach the United Kingdom obligations under the ECHR.

Relevant home office Policy Guidance :-

-Safe Third Country Case

-Chapter 27 – Third Country Cases

-Third Country Cases :Referring and Handling:

  • SECTION 96 CERTIFCATION – 2002 ACT -DENIAL OF A RIGHT OF APPEAL

Section 96 of the 2002 Act removes the right of appeal against a refusal where the refusal was of a claim that could have been made earlier. A case may be certified under Section 96 regardless of whether the right of appeal notified or the Section 120 notice served was under the 2002 Act before its amendment by the Immigration Act 2014 or after its amendment.

Section 96 works together with section 120  of the 2002  which imposes an ongoing duty on individuals to raise new matters with the Secretary of State  as soon as reasonably practicable after they arise.

The new process under the Immigration Act 2014 requires that a section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arises. The consequence of not complying with the notice and making a late claim could be that the claim is certified under Section 96  of the 2002 Act which removes any consequential right of appeal where the claim is refused.

Section 120 Nationality, Immigration and Asylum Act 2002 states that the Secretary of State or an immigration officer may serve a notice on a person who has:

  • made a protection claim or a human rights claim
  • made an application to enter or remain in the UK
  • a decision to deport or remove has been made or may be taken

The EEA Regulations provide that a Section 120 notice can be served in EEA claims.

Once a person has been served with a section 120 notice, if that person requires leave to be in the UK (or only has leave by virtue of section 3C or 3D of the Immigration Act 1971), the person must provide a statement setting out any additional reasons or grounds he or she has for remaining in the UK, or any grounds on which he or she should not be removed from the UK. This is an ongoing duty which continues until the individual has either left the UK or has been granted leave. A time limit may be specified on the section 120 notice. This time limit indicates the period after which a decision may be made. However, once this limit has expired, a person is still under an ongoing duty to provide the Secretary of State  with any new or additional reason or ground. If the time limit has expired, the Secretary of State must still consider the matter or grounds raised but if appropriate may be able to certify any claim under Section 96.

R (on the application of Vassell) v Secretary of State for the Home Department (s.96 NIAA 2002, test; merits) IJR [2015] UKUT 0404 (IAC) provides:

“In J v Secretary of State for the Home Department [2009] EWHC 705 (Admin), Stadlen J set out a four stage process that must be undertaken by the Secretary of State before she could certify a claim under s.96 of the Nationality, Immigration and Asylum Act 2002. The merits of any new matter raised by an applicant are not relevant to this process.

  1. In J v Secretary of State, Stadlen J set out the following four stage process to be undertaken by the respondent before she could certify a claim under s.96:

“Under s.96(1) and (2) before the Secretary of State can lawfully decided to certify, she has to go through a four stage process.  First, she must  be satisfied that the person was notified of a right of appeal under s.82 against another immigration decision (s.96(1)) …  Second, she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in the appeal against the old decision (s.96(1)(b)) … Third, she must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (s.96(1)(c)) …  Fourth, she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification.”

Relevant Home Office Policy Guidance is  “Late claims: certification under section 96 of the Nationality, Immigration and Asylum Act 2002, Version 1”-

  • SECTION 97 AND 97A NATIONAL SECURITY CERTIFICATION -2002 ACT

Section 97 certificates:

Certificates may be issued in national security cases under section 97 of the 2002 Act. The effect of a section 97 certificate is that an appeal may not be brought to the tribunal. Any appeal already lodged will lapse. Instead there is a right of appeal to the Special Immigration Appeals Commission (SIAC).

Section 97 certificates are issued if the Secretary of State has decided, or directed, that a:

  • person’s exclusion or removal is for reasons of national security, in the interests of relations between the UK and another country
  • decision is or was based on information not to be made public for reasons of national security, in the interest of relations between the UK and another country, or to protect the public interest in some other way

Section 97A certificates

Certificates can also be issued under section 97A of the 2002 Act:

  • if a certificate is issued under section 97A(1) or 97A(2), then an appeal against a deportation order or removal notice cannot be brought or continued from within the UK
  • if a certificate is issued under section 97A(2B) to the effect that removal of the individual will not breach the UK’s obligations under the European Convention on Human Rights (ECHR)
  • section 97A(2C) interprets section 97A(2B) as meaning that the person in question would not be subject to ‘serious irreversible harm’ if removed

 

  • REGULATION 24AA CERTIFCATION FOR EEA NATIONALS :THE EEA REGULATIONS AS AMENDED

Regulation 24AA contains a certification power which sets out circumstances in which a person liable to deportation may be removed from the UK before the conclusion of the appeal process.

The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2014 amended the Immigration (European Economic Area) Regulations 2006 so that an appeal against a deportation decision under Regulation 19(3)(b) of the EEA Regulations no longer suspends removal proceedings, except where:

  •  the Secretary of State has not certified that the person would not face a real risk of serious irreversible harm if removed to the country of return before the appeal is finally determined.
  • the person has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.

The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK, rather, by amending Regulation 29 of the EEA Regulations, it removes the suspensive effect of that appeal. So, whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK. The new Regulations also do not impact on the period allowed for voluntary departure, and a person liable to deportation pursuant to the EEA Regulations still has 30 days in which to leave the UK voluntarily before their removal is enforced, save in duly urgent cases.

Therefore, regulation 24AA applies to:

  • a person who appeals in time against an EEA deportation decision, where that appeal has not been finally determined;
  •  a person who has not appealed against an EEA deportation decision but would be entitled to do so from within the UK (this does not include out of time appeals).

The amended EEA Regulations also allow a person who was deported under Regulation 19(3)(b) before their appeal is finally determined, to apply from out of country for permission to re-enter the UK solely in order to make submissions in person at their appeal hearing.

The relevant Policy Guidance is, “Regulation 24AA certification guidance for European Economic Area deportation cases, Version 2.0 , 20 October 2014”.

  • PARAGRAPH 353 OF THE IMMIGRATION RULES- FURTHER SUBMISIONS

Paragraph 353 of the Immigration Rules describes the process of deciding whether further submissions are or are not a fresh claim and hence, whether a further right of appeal exists if those further submissions are refused.

If a further submission does not amount to a fresh claim under Paragraph 353, there is no right of appeal against the rejection of the further submissions.

All representations received following the service of a Section 94 certified decision  are considered in line with the case of  ZT(Kosovo) [2009] UKHL 6 which stated that Paragraph 353 of the rules must be applied to all further submissions in Section 94 cases.

In R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 00169 (IAC), the Upper Tribunal made detailed references to the following caselaw:

  • R (BA (Nigeria)) v SSHD [2010] 1 AC 444
  • ZT (Kosovo) v SSHD [2009] 1 W.L.R. 348
  • R (ZA (Nigeria)) v SSHD [2011] QB

and  concluded:

“The current statutory appeal regime requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal.

Where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim. Paragraph 353 of the Immigration Rules provides the mechanism to determine whether they amount to a claim the refusal of which enables a right of appeal.

The Immigration Act 2014 (Transitional and Saving Provisions) Order 2014/2928 brings those whose deportation decision (which includes a decision to refuse to revoke a deportation order) was made after 10th November 2014 into the statutory scheme in the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014, irrespective of when they were convicted of a criminal offence.14.Paragraph 353 does not appear and is not alluded to in the legislative framework. It and its predecessor have never been alluded to. The two systems exist alongside each other. It remains in the Rules and, despite the amendment of s82 of the 2002 Act from 20th October 2014 and despite there being amendments to the Rules since that date there has been no amendment to paragraph 353….     

14.Paragraph 353 does not appear and is not alluded to in the legislative framework. It and its predecessor have never been alluded to. The two systems exist alongside each other. It remains in the Rules and, despite the amendment of s82 of the 2002 Act from 20th October 2014 and despite there being amendments to the Rules since that date there has been no amendment to paragraph 353….

16.The current appeal scheme enables an appeal against a decision by the SSHD refusing the applicant’s human rights claim. There has to be a claim and then a decision in order to enable an appeal. The current scheme no longer enables an appeal against a decision refusing to revoke a deportation order. The SSHD may, having decided to refuse a human rights claim, thereafter decide whether to invoke the certification process. Without a claim (and without a decision) there is no appeal.

17.The history of paragraph 353 and the jurisprudence is set out above. BA (Nigeria) was concerned with a decision, not whether there had been a decision. ZT (Kosovo) concerned the continuing responsibility of the respondent to consider representations made whilst an applicant remained in the UK even though the initial claim had been refused and certified – again there had been a decision and the issue was what to do with submissions. ZA (Nigeria) confirmed that the respondent was not obliged to issue an appealable immigration decision whenever further submissions were made.

18.If the applicant is correct and any submission made amounts to a claim, the response to which is an appealable decision, this would result in an applicant being able to make numerous consecutive claims that would result in numerous consecutive appeals. Although each of those could be certified, the mere existence of such a scenario would result in it being virtually impossible to reach finality. BA (Nigeria) is not authority for the proposition that submissions amount to a claim and that the response to those submissions is a decision within the meaning of Part 5. The current statutory framework continues to provide for unmeritorious claims to be certified. There is nothing in this framework that precludes the making of a categorisation decision; paragraph 353 remains in force.

19.The current statutory appeal context requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal. Submissions that purport to be a human rights claim do not without more trigger a right of appeal. There has to be an intermediate step, a categorisation, namely “do the submissions amount to a claim at all”. Paragraph 353 of the Rules provides the mechanism to determine whether they amount to a claim; if not then the decision does not amount to a decision to refuse a human rights claim.

20.If an applicant is aggrieved by a decision not to categorise submissions as a claim, then s/he has a remedy in judicial review proceedings. Where a claim has already been determined, submissions made subsequent to that require a decision as to whether they amount to a claim. If determined to be a claim the decision to refuse that claim will trigger a right of appeal, subject to certification. If the submissions are determined not to be a claim, as here, there is no decision and thus no right of appeal”.

Relevant  current Home Office policy Guidance is “Asylum Policy Instruction Further Submissions Version 8.0  Publication Date: 30 March 2015”.

CONCLUSION

Despite the certification procedure being increasingly   put to use by the  Home Office, where  they have got it wrong, there is always the option of challenging a certification by way of judicial review.  Where  this proves cost prohibitive and “defects”  can be remedied  by  new,  additional evidence,   then a possibility may  exist of submitting a fresh new claim to the home office, however the claim  has to be well prepared to cater for the event of being met  by a consideration  by reference to paragraph  353  of the Immigration Rules but this time with a possible  outright  denial of a right of appeal under that provision.

The  UK government having recently  won in Kiarie, R (On the Application Of) v The Secretary of State for the Home Department [2015] EWCA Civ 1020   in relation to a challenge to Section 94B of the 2002 Act,  what is  currently aslo awaited  is the outcome of any similar challenge to  the operation of Regulation  24AA of the 2006 EEA Regulations.  The UK  Government may have  defeated the Section 94B challenge  in Kiarie, however  it may very  well  be that  there might be yet  again future challenges  to Section 94B   but  focusing  upon a  manoeuvre   of  other forms   of arguments different to those raised in Kiarie.

Various changes  are intended to be   introduced by the UK Government  in 2016 and  the   “deport first, appeal later” policy that  is inextricably  linked to the  certification procedure but  to those subject to deportation,   is likely to be  extended  to   non- deportation appeals.    It therefore remains to be seen whether  2016 brings  in  amendments or additions to  legislation in non – deportation  cases, drafted along  broad similar lines to Sections  94B and Regulation  24AA.

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