MigrationWatchUK warned on 26 November 2014 that, “Unless net migration falls substantially, the figures for the next decade are likely to be similar to the last decade, indeed higher”.
As the General Elections gets nearer, the issue of Immigration in the UK heats up – read more here on Alice’s blog on her views on Migration in the UK and how the UK Government are likely to get grips on immigration.
Apparently, according to the current opinion of some ( hopefully the minority few), when it comes to interpreting and applying the law in particular that emanating from the European Court of Human Rights(ECHR), Judges are going off on a frolic of their own out-with the law. Even more apparent it now seems is that almost all of the problems that have do with the perceived inability of the UK government in controlling immigration numbers can be traced directly to Judges who are leniently interpreting human rights law. The view is that they are thus to be blamed for their contribution towards permitting large numbers of immigrants to remain in the UK. Not only are these immigrants being permitted to stay in the UK but are also being allowed to bring even more of their family members from abroad into the UK.
These views emanate from a recent article in the Telegraph published on 8 November 2014 which reports; “Human rights laws have been interpreted to pave way for mass immigration…….. But the real problem posed by loss of control over our borders stems not from the EU treaty or even laws passed by politicians. It comes from law made by judges, most notably those of the European Court of Human Rights( ECHR) as they have interpreted international treaties to mean something quite different from the way their framers intended…. It is also under this judge-ordained “right” that many immigrants have been allowed to enter the UK from elsewhere in the EU. The EU treaties explicitly guarantee” freedom of movement” only to “workers”- not to their families…. The other conspicuous problem is that we are no longer allowed to deport most of this country’s 100, 000 ” asylum seekers” back to where they came from. This is also under the Human Rights Act, as interpreted by our own judges in 1999, when they ruled that we could not return refugees to France, from where most arrive, because France (like Germany) was deemed not to be “safe” on the grounds that they might be at risk of racial or other persecution…. All this makes nonsense of claims that uncontrolled immigration could be stopped by our leaving the EU, because we would still be ruled by the ECHR… The real problem is that we have allowed judges to misuse their powers to interpret the law in ways that were simply never intended. To regain control over our borders we would first need to regain control over those unelected judges”- We can’t control our borders until we control those judges www.telegraph.co.uk.
The class of Judges caught by this criticism include not only Judges from the ECHR but inevitably UK Tribunal Immigration Judges, High Court, Court of Appeal and Supreme Court Judges who also apply ECHR case law – all these unelected Judges apparently need to be reigned in and controlled.
If these views are held by the majority in the UK, it is not at all clear where this criticism leaves the important principles of impartiality and independence of the judiciary, separation of powers and the rule of law. Alarmingly the article fails to refer to these principles and a quote from John Locke, the Philosopher cannot help but come to mind-, “Where -ever law ends, tyranny begins”.
When the Supreme Court was created in 2009, Lord Phillips of Worth Matravers, President of the Supreme Court, said; ” For the first time, we have a clear separation of powers between the legislature, the judiciary and the executive in the United Kingdom. This is important. It emphasis the independence of the judiciary, clearly separating those who make the law from those who administer it…….Justice at the highest level should be transparent and the new Court will have a crucial role in letting the public see how justice is done”. www.independant.co.uk Supreme Court Move Separates Parliament from judiciary, 1 October 2009.
Further a report of the Judicial Appointments Constitution Committee, Chapter 2 The Constitutional Framework confirms, “The principle of judicial independence, without which the rule of law is impossible is recognized as an essential feature of constitutional democracies around the world…… Judges in the United Kingdom should not be appointed through political patronage. It is important not only that the judiciary act independently, but that they are seen to do so….. The principle of accountability is also important. Judicial independence does not require that no one be held accountable…….”. www.publications.parliment.uk 2012 House of Lords- Judicial Appointments- Constitution Committee.
A House of Commons Standard Note of 15 August 2011 titled Separation of Powers states:
“Separation of powers” refers to the idea that the major institutions of state should be functionally independent and that no individual should have powers that span these offices. The principal institutions are usually taken to be the executive, the legislature and the judiciary. In early accounts, such as Montesquieu’s The Spirit of the Laws, the separation of powers is intended to guard against tyranny and preserve liberty. It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two…….. The creation of an independent Supreme Court and dismantling of the many-faceted office of Lord Chancellor have unpicked some aspects of the fusion of powers. Matters have also been complicated by the Human Rights Act 1998 and its requirement for judges to consider the European Convention on Human Rights and the decisions of the European Court of Human Rights in Strasbourg………….. The second element of the separation of powers is separation between legislature and judiciary. In the UK, judges are prohibited from standing for election to Parliament under the House of Commons (Disqualification) Act 1975. Judges are expected to interpret legislation in line with the intention of Parliament and are also responsible for the development of the common-law( judge- made law)……… Constitutionally, judges are subordinate to Parliament and may not challenge the validity of Acts of Parliament. However, there remains some leeway for judges to interpret statute and this raises the question of whether the judges are able to “make the law”. There is an element of judicial law-making in the evolution of common law…. The cooperation between judiciary and legislature has been described as a “constitutional partnership” as Parliament may give tacit approval to judge-made law by not interfering with it. Lord Woolf, for example, has argued that “the crown’s relationship with the courts does not depend on coercion”, but on a state of trust. Professor Bogdanor has argued, for example, that the Human Rights Act necessitated a compromise between two doctrines—the sovereignty of Parliament and the rule of law—and that the compromise “depends upon a sense of restraint on the part of both the judges and of Parliament”…… The third element of separation is between the executive and the judiciary. The judicial scrutiny function with regard to the executive is to ensure that any delegated legislation is consistent with the scope of power granted by Parliament and to ensure the legality of government action and the actions of other public bodies. On the application of an individual, judicial review is a procedure through which the courts may question lawfulness of actions by public bodies. This requires judges to be independent of government and Parliamentary influence. The judges have traditionally exercised self-restraint or “deference” in the areas of power that they regard themselves as competent to review”.
In the area of immigration it can be put forward that the UK Government has sought over the years to break away from judgments and application of law emanating from the ECHR without in practice removing themselves from being signatories of the ECHR. In particular the changes which have applied since 9 July 2012 in relation to the Immigration Rules show that the government has sought to “codify” the Immigration Rules as they relate to private and family life considerations with the intention that the need for Judges to actually interpret and therefore “make law” in practice is reduced.
The published Home Office Statement of Intent: Family Migration of June 2012 states, “ First, we shall end the situation where those claiming the right to enter or remain in the UK on the basis of ECHR Article 8 – the right to respect for private and family life – do so essentially without regard to the Immigration Rules. The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. The Immigration Rules will reflect the UK Border Agency’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare – or ‘best interests’ – of children who are in the UK. The rules will set clear thresholds for the impact of an applicant’s criminality on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. The rules will also reflect the fact that family life established when the parties knew one or both of them lacked a valid basis of stay in the UK carries less weight under the case law of the European Court of Human Rights”.
SOME UK CASELAW FOLLOWING THE JULY 2012 CHANGES
Caselaw has been generated in the UK Courts following the introduction of the new Immigration Rules as they relate to private and family life as below.
Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC) provides;
“1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria [2012] [2012]UKUT 00393 (IAC) to the same effect is endorsed.
2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.
3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.
4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.
5.The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad”.
Nagre v Secretary of State for the Home Office department [2013] EWHC 720 (Admin) considered also that:
“There is, in my judgment, nothing untoward in the fact that the new rules do not necessarily track absolutely precisely and provide in detail in advance for every nuance in the application of Article 8 in individual cases……., ….the new rules contemplate that there will be some cases in which a right to remain based on Article 8 can be established even though falling outside the new rules. Therefore, the basic framework of analysis contemplated by Lord Bingham Huang continues to apply, as was recognized by the Upper Tribunal in Izuazu”…. The Secretary of State does not contend that the new rules completely cover every conceivable case in which a foreign national may have a good claim for leave to remain under Article 8…”
The Government introduced paragraphs 398, 399 and 399A of the Immigration Rules in July 2012. Before the changes Immigration Judges were guided by case law in relation to considerations of circumstances in which a foreign national criminal could resist deportation on the basis of his right to family life under Article 8 of the Convention. The Court of Appeal in MF (Nigeria) v SSHD [2013] EWCA Civ 1192 concluded that the Immigration Rules in relation to deportation now provide a ‘complete code’ for the purposes of considerations of Article 8 rights as they relate to foreign national criminals however that they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.
In Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC), the Upper Tribunal criticised an Immigration Judge for embarking on a ”free-wheeling” Article 8 analysis, unencumbered by the rules as this was not the correct approach. The Upper Tribunal in Gulshan summarised what it considered to be the correct position:
“On the current state of the authorities:
(a) ………….
(b) after applying the requirements of the Rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them: R (on the application of) Nagre v Secretary of State for the Home Department [2013] EWHC 720 (Admin);
(c) the term ”insurmountable obstacles” in provisions such as Section EX.1 are not obstacles which are impossible to surmount: MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC); Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC); they concern the practical possibilities of relocation. In the absence of such insurmountable obstacles, it is necessary to show other non-standard and particular features demonstrating that removal will be unjustifiably harsh: Nagre.
The Secretary of State addressed the Article 8 family aspects of the respondent’s position through the Rules, in particular EX1, and the private life aspects through paragraph 276ADE. The judge should have done likewise, also paying attention to the Guidance. Thus the judge should have considered the Secretary of State’s conclusion under EX.1 that there were no insurmountable obstacles preventing the continuation of the family life outside the UK. Only if there were arguably good grounds for granting leave to remain outside the rules was it necessary for him for Article 8 purposes to go on to consider whether there were compelling circumstances not sufficiently recognised under the Rules”.
The case of Gulshan appeared be taking interpretation of Article 8 matters to restrictive extremes, the effects of which have been reigned in by the Court of Appeal in MM– this was after some months during which some Article 8 appeals were dismissed for want of passing the threshold coined as the ” Gulshan gateway” to Article 8. Gulshan might be considered an example where the Judges sought to be overly influenced by the changes in the Immigration Rules.
MM v SSHD 2014 EWCA Civ 985 in the Court of Appeal provides:
“128.There are three further cases to note where the court has analysed the correct approach to the lawfulness of an IR in principle, as opposed to whether a refusal to grant entry on individual facts was justified. The first is: R(Nagre) v SSHD a decision of Sales J.[138] The case was a challenge to the lawfulness of new IRs presented to Parliament at the same time as those with which this case is concerned. The Nagre IRs were new paragraphs 276ADE to 276CE, introduced by HC 194 and they concerned the requirements to be met by an applicant for leave to remain on the grounds of “private life”. The object of the new rules was to address more explicitly than previous IRs had done the factors which (under UK and Strasbourg case law) weigh in favour of or against a claim by a foreign national to remain in the UK, based on Article 8. Along with the new IRs, the Secretary of State issued guidance in the form of instructions regarding the approach of officials in deciding whether to grant leave to remain outside the Rules, in the exercise of the residual discretion that the SSHD had to grant such leave. It could be granted in “exceptional circumstances”, which are defined in the same terms as those applicable to the present appeals. No challenge was made to the guidance. Sales J held that the new IRs could not provide for all possible circumstances that might arise under Article 8. But the new rules would guide the decision makers in most cases. In those that were not covered by the new IRs, only if there was an “arguable case that there may be good grounds for granting leave to remain outside the Rule by reference to Article 8 that it [would] be necessary for Article 8 purposes to go on to consider whether there were compelling circumstances” to grant such leave.[139] He followed the guidance in R(Izuazu) v SSHD (Article 9 – new rules).[140] At [35] and [36] Sales J said:
“The important points for the present purposes are that there is full coverage of an individual’s rights under Article 8 in all cases by a combination of the new rules and (so far as is necessary) under the Secretary of State’s residual discretion to grant leave to remain outside the Rules and that, consequent upon this feature of the overall legal framework, there is no legal requirement that the new rules themselves provide for leave to remain to be granted under the rules in every case where Article 8 gives rise to a good claim for an individual to be allowed to remain. This had always been the position in relation to the operation of the regime of immigration control prior to the introduction of the new rules and the introduction of the new rules has not changed these basic features of the regime.
Therefore, in my judgment, the Claimant’s challenge to the lawfulness of the new rules fails. No matter how closely, or not, the new rules track the detailed application of Article 8 in individual cases, the immigration control regime as a whole (including the Secretary of State’s residual discretion) fully accommodates the requirements of Article 8. The fact that the new rules do not do that in all cases by themselves does not render them unlawful”.
129.Sales J’s decision therefore follows the logic of Laws LJ’s statements in [38]-[39] of AM(Ethiopia), analysed above. However, there is a difference in that in Nagre the new rules were themselves attempting to cover, generally, circumstances where an individual should be allowed to remain in the UK on Article 8 grounds; whereas in AM(Ethiopia) and in the present appeals the rule challenged stipulates a particular requirement that has to be fulfilled before the applicant will be allowed to enter or remain. The argument in each case is that it is that specific requirement that offends Article 8. Nagre does not add anything to the debate, save for the statement that if a particular person is outside the rule then he has to demonstrate, as a preliminary to a consideration outside the rule, that he has an arguable case that there may be good grounds for granting leave to remain outside the rules. I cannot see much utility in imposing this further, intermediary, test. If the applicant cannot satisfy the rule, then there either is or there is not a further Article 8 claim. That will have to be determined by the relevant decision-maker”.
It is therefore clear that despite the changes to the Immigration Rules, the UK Courts should where a claimant does not meet the requirements of the rules still go on to make an assessment of Article 8 applying the criteria established by ECHR caselaw.
RESTRICTIVE GOVERNMENT CHANGES IN THE LAW AFFECTING HUMAN RIGHTS CONSIDERATIONS
The Government via the Immigration Act 2014 also seeks to bring in changes which have the potential of removing rights of appeal altogether in deportation human rights cases via certification as well as seeking to “direct” how judges should interpret public interest consideration in Article 8 claims:
Section 19 of the Immigration Act 2014, now adds to the Nationality, Immigration and Asylum Act 2002 a new Part 5A entitled “Article 8 of the ECHR: public interest considerations”. Section 117A states that Part 5A applies where a court or tribunal has to determine whether a Home Office immigration decision breaches a person’s right to respect for private and family life under Article 8 and as a result would be unlawful under section 6 of the Human Rights Act 1998. In such a case the court or tribunal must have regard to the “public interest question” which means the question whether an interference with a person’s right to respect for private and family life is justified under Article 8. Section 117B sets out the public interest considerations which the court or tribunal must treat as applicable in all cases. Subsection (2) states that it is in the public interest and particularly in the interest of the economic well-being of the United Kingdom that persons who seek to enter or remain in the United Kingdom are able to speak English and are therefore less of a burden on taxpayers and better able to integrate into society. Subsection (3) states that it is in the public interest and economic well-being of the United Kingdom that such persons are financially independent and are therefore not a burden on taxpayers and better able to integrate into society. These are therefore clear instructions to courts and tribunals on how the reference in Article 8.2 to the economic well-being of the United Kingdom is to be interpreted. Section 117C sets out the additional public interest considerations in cases involving foreign criminals. The deportation of foreign criminals is considered to be in the public interest. The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. In the case of a foreign criminal who has not been sentenced to a period of imprisonment of four years or more, the public interest requires his deportation unless Exception 1 or Exception 2 applies. Exception 1 applies where the foreign national has been lawfully resident in the United Kingdom for most of his life, he is socially and culturally integrated in the United Kingdom and there would be very significant obstacles to his integration into the country to which he is proposed to be deported. Exception 2 applies where the foreign national has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of the foreign national ‘s deportation on the partner or child would be unduly harsh. In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2. These considerations are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
Section 17 of the Immigration Act 2014 now adds to the Nationality, Immigration and Asylum Act 2002 a new Section 94B. A human rights claim made by a non-EEA national may be certified in the context of deportation, under section 94B of the Nationality, Immigration and Asylum Act 2002. 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 the person to the country or territory to which the person is proposed to be removed, pending the outcome of an appeal in relation to the person/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). The grounds upon which the Secretary of State may certify a claim include that the person 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 the person is proposed to be removed. 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.
The EEA Regulations have also been changed to allow non-suspensive appeals in certain EEA cases. Regulation 24AA of the EEA Regulations 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 Secretary of State may only give directions for the person’s removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of the person to the country or territory to which he is proposed to be removed, pending the outcome of his appeal, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). The grounds upon which the Secretary of State may certify a removal include that the person would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed. 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.
CONCLUSION
Having regard to the changes in law sought to be introduced by the UK government in relation to codifying the relevant Immigration Rules, the practical reality is that as regards to private and family life considerations and with the effort to limit or remove human rights appeals for foreign national criminals, it appears that there is in any case a Government drive to dampen down UK Judge’s law making powers in the area of immigration and asylum.
The Immigration Rules on private and family life introduced in July 2012 properly viewed can be considered as part of the Government’s intention of having Judges in the UK not “needing” to apply and interpret ECHR caselaw when considering whether a person fulfils their strict requirements. By suggesting that the Government seek to control and reign in Judge’s powers of interpretation and law making as they apply to human rights law, there is a real and increasing danger that the role of the judiciary in this regards may be reduced to that of merely rubber stamping whatever form of law the may government seek to introduce in order to by-pass the ECHR.
“Jimmy Mubenga death: G4S guards ignored deportee’s cries before he died on airliner”, reported the Independent on 4 November 2014.
Three G4S security guards are currently on trial for manslaughter following the death of Jimmy Mubenga on 12 October 2010 on a British Airways flight from Heathrow about to take off for Angola. Following service of a criminal sentence in the UK, Mr Mubenga was due to be deported by the immigration authorities. He was being escorted by three private security guards working for Group 4 Services (G4S) contracted by the UK Border Agency. Following his death, an inquest returned a verdict of unlawful killing as it was found that Mr Mubenga, a father of five had died as a result of unlawful force being applied. Mr Mubenga had died following the use of restraint by the security guards. They held Mr Mubenga forward such that he was unable to breath properly. Shouts that he could not breath were heard by other passengers however these were unheeded by the security guards.
It is truly hoped that there never need be a loss of life during the removal process due to unreasonable force being used, however the government is under increasing pressure to effect removal of deportees in particular following the recent report on 22 October 2014 from the National Audit Office as regards Foreign National Offenders (FNO). The report found that , “Removing FNOs from the UK continues to be inherently difficult and public bodies involved have been hampered in their efforts by a range of barriers, although poor administration has still played a part……”
Amyas Morse, head of the National Audit Office also stated, ” It is no easy matter to manage national offenders in the UK and to deport those who have completed their sentences. However, too little progress has been made, despite the increased resources and effort devoted to this problem. The Government’s focus on preventive measures and early action is promising, but it has only just started to exploit these options. It needs to build on the momentum of its recent action plan….”
The government can therefore be expected to increasingly focus more on removals of those in particular who have been convicted here and served their sentence.
Although the government will effect enforced removals where a person no longer has a legal basis to remain in the UK, the question however arises as to whether the techniques employed to restrain deportees show respect for the dignity and rights of those being removed. Clearly a loss of life during the deportation process does not.
Mr Mubenga had been held in a ‘head-down” restraint position using techniques which were not part of the control and restraint techniques in which the detainee custody officers involved had been trained.
Another obvious question would be how best to approach an apparently non-compliant deportee just before a flight if not by use of some physical force. Rather than approach the issue solely from the perspective of needing to swiftly effect a “successful” removal by whatever means, it may be necessary to consider and appreciate the heightened situation of distressed intensity a deportee may find himself in during the removal process in particular as in the case of Mr Mubenga where he was leaving behind a wife and children behind in the UK. Apparently the security guards did not seek to calm the situation down with words but simply and mainly resorted to the use of force.
The government has published a Detention Services Order 07/14, Risk Assessment Guidance for Contracted Escort Staff with an implementation date of 30 August 2014. It provides guidelines on the waist restraint belt, leg restraints and the mobile chair for detainees under escort and associated risk assessment. A further Detention Services Order 06/2014, Risk Assessment Guidance for Escorted Moves- All Contractors with an implementation date of 26 August 2014 provides guidelines on handcuffs, leg restraints and escort chains on detainees under escort and associated risk assessment. Both orders recognize that the use of any restraint should be necessary, reasonable and proportionate and that unless risk is properly assessed and the use of restraints fully justified, the use of restraints is likely to amount to inhumane and degrading treatment under Article 3 of the ECHR.
The government will therefore continue to apply some restraint however where in a particular situation a deportee, in inevitable distress as will almost always be the case in an enforced removal situation, resists removal the most reasonable and proportionate course of action surely is to abandon that proposed removal rather than risk a loss of life or cause severe physical injury to a deportee. The deportee not being in a position to escape custody from an airplane can be returned to the place of detention and another removal date set for another day. The vast majority of detainees liable to removal are to be assumed to be reasonable and sensible people regardless of their place of origin and can be expected to reach a conclusion sooner or later that where there is no prospect of remaining in the UK that they will eventually have to leave. Unless a deportee seeks somehow to make themselves “indefinitely irremovable”, which may be an impossible mission long term, those that may physically resist removal more vigorously than others can also be expected to cooperate at some point with the removal process. Although it may be of some cost to the government to defer removal and cancel a flight, rather than for escorts/ security guards to seek to take a risk and use physical force in a situation which may quickly and unexpectedly escalate out of control, this may be a more reasonable, proportionate and humane course of action rather than risk a loss of life merely to effect a deportation.
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.
On 16 October 2014 the Minister of State for Immigration and Security, James Brokenshire MP, laid a written ministerial statement in the House of Commons and announced the reforms that have today come into force as follows:
A mother or father subject to deportation proceedings may be caught up in a dilemma where they have a pending appeal in the immigration Tribunal either imminently to be heard or being heard whilst an application is pending in the family courts in relation to access to a child residing in the UK who is either a British citizen or has leave to remain. The question is whether to request an adjournment or proceed with the appeal without knowing the final decision of the family courts as regards their view where the best interests of the child lies.