In a judgement handed down on 26 November 2015, the Upper Tribunal, closely following Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020, dismissed a Regulation 24AA certification judicial review challenge by an EEA national subject to deportation.
(Although no longer subject to an embargo, the judgement is at the current time yet to be published in the public domain).
Where a person is refused leave to remain by the Home Office, considerable distress inevitably arises. An in -country right of appeal may be provided or the applicant may be required to appeal once they have left the UK. On the other hand, a right of appeal may be denied altogether.
The Home Office have increasingly made it so over the years that applicants intending to submit leave to remain applications think twice before doing so in light of the applicable prohibitive costs involved in not only having to make provision for the relevant home office application fees but also as from April 2015, the NHS Health Surcharge. Families seeking to submit human rights applications are most affected in particular where they have no leave to remain, no source of income but having qualifying children for example under the “7year Rule” justifying submission of a leave application. Not only is the cost of the home office application fee daunting but there is also the possibility, where upon refusal, that further Tribunal appeal fees may need to be paid if an in -country right of appeal is given.
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.
The UK Government has over the years (more so since July 2012) sought to introduce measures intent upon ensuring that foreign national criminals are deported or excluded from the UK. Where deportation appeals are won, the Home Office’s now predictable reaction is an onward appeal, challenging allowed Tribunal decisions and sometimes with success. Those subject to deportation therefore cannot afford to proceed upon an assumption that once a deportation appeal is won, the Secretary of State will not seek to appeal such a decision.
On 6 November 2015, the Upper Tribunal notified their decision in Osoro ( Surinder Singh) [2015] UKUT 593 (IAC). They concluded their decision with observations seeming to cast strong doubt upon the continuing effectiveness of Surinder Singh following the coming into force of the EEA Regulations. Having raised doubt as to the co- existence of Surinder Singh with the Regulations, the Upper Tribunal regrettably did not take it upon themselves to answer the very questions they had unilaterally raised. To top it all , there is an equally strong warning from the Upper Tribunal to legal practitioners and Judges to take care in considering what was actually decided in Surinder Singh. It seems we do not appear to be understanding the ratio decidendi, in that judgement. The Appellant and Sponsor in Osoro however appears to have been legally unassisted and as such the warning to legal practitioners might perhaps have awaited adjudication upon a specific and appropriate case both where an appellant was legally represented and where the raised issues could have been fully ventilated in relation to the questions the Upper Tribunal have regrettably deferred to a future case.