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).
The UK Government’s Announcement of 17 September 2015, “New measures will make it tougher than ever before to live illegally in the UK”, coincides with the publication of the new Immigration Bill which was published the same day. The bill is intended to become the Immigration Act 2016. The Bill is meant to build up on the Immigration Act 2014. To put it in basic terms, a view can be taken that the Bill sets out the UK Government’s intention of getting the UK rid of not only those without current leave to be here but also those who have leave but are refused and are intending to appeal in- country but will be denied that opportunity.
The UK Government is not hiding the fact that they want undocumented migrants in the UK to leave, if not voluntarily, then by force. The Immigration Act 2014 is also intended to make life harder for those without leave to remain and also those whose claims have been refused and are intending to appeal whilst in the UK. The Immigration Act 2014 has generated litigation and its provisions are expected to continue generating legal challenges in future in the higher courts- as such it is doubted that the publication of the new Bill or its coming into force will result in an orderly queue to the airport any time soon by those it is intended to target.
THE MAIN CLAUSES
The new Bill is to be read together with several published FactSheets relating to the various clauses.
With a stated view to cracking down on serious exploitation of workers, the Government will appoint a new Director who will oversee the relevant enforcement agencies to provide an enforcement strategy for non-compliance in the labour market. The Government believes that the main bodies responsible for ensuring minimum standards are met for workers are currently not designed to deal with the increase in organised criminal activity engaging in exploitation in the labour market. It is believed that this kind of worker exploitation often appears to involve migrant workers. There will be created a new Director of Labour Market Enforcement appointed by and reporting to both the Home Secretary and the Secretary of State for Business. The Director’ s remit will cover labour market breaches, not immigration offences. The Director and the enforcement bodies will work closely with immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions.
The Government currently has powers to prosecute migrants with permission to be in the UK who are working illegally in the UK in breach of their conditions, however the Government considers that there is a gap in the current legislation as it does not cover people who have entered the UK illegally or overstayed their visas. A new offence will close this gap by covering any worker – self employed as well as employed.
With the intention of making it harder for people to live and work illegally in the UK, the Government will make it a criminal offence to work illegally, with a sanction of a fine and/or a custodial sentence of a maximum of 6months. By making illegal working a criminal offence in its own right, this will allow wages paid to all illegal workers to be recoverable under the Process of Crime Act 2002.
The Bill will make it an offence for an employer to employ someone whom they “know or have reasonable cause to believe” is an illegal worker. The maximum custodial sentence on indictment for an offence of employing an illegal worker will also be increased from two years to five years. These powers are intended to operate alongside and reinforce the existing system of heavy financial penalties for businesses that negligently employ illegal workers. The new measures are intended to build on legislation introduced in 2014 to strengthen punishments for employers which included doubling the maximum civil penalty to £20,000 per illegal worker.
As regards employers who continue to flout the law by employing illegal workers and evade sanctions, the Bill will introduce a power to close premises for up to 48hours. The closure may be cancelled if the employer demonstrates that they have conducted right to work checks where illegal workers have been identified. Where they cannot, the next step is to place the business under special compliance requirements, as directed by the courts. This can include continued closure for a period, followed by re-opening subject to the requirement to conduct right to work checks and inspections for compliance.
The Government’s intention is to prevent illegal immigrants from retaining UK driving licenses. The immigration Act 2014 provided the power to revoke UK driving licenses held by illegal immigrants. Foreign issued licenses cannot be revoked by the UK Government. Immigration Officers do not currently have the power to seize revoked UK licenses that they encounter. It is the responsibility of the license holder to return the revoked license to the DVLA and failure to do so is a criminal offence. The Immigration Bill 2015 will provide two new measures which build on the driving license related powers in the 2014 Act. It will provide a power for police and immigration officers to search people and premises, in order to seize the UK driving licenses(whether revoked or not) of illegal migrants. The Bill creates a new criminal offence of driving whilst unlawfully present in the UK, which carries a custodial sentence of 6months and/or fine of up to the statutory maximum. The new offence of driving whilst unlawfully present is anticipated to be a power to be used primarily by the police, in the course of their work who may encounter drivers who are not lawfully present driving on the UK roads. The vehicle used may be detained and upon conviction, the court may order its forfeiture. If a police officer stops a motorist for a driving offence, they can check the immigration status of that individual. If the individual is here illegally, the police officer will be able to search for and seize their UK driving license, arrest them for the driving offence and detain the vehicle. If the migrant is convicted of the offence, the court may order forfeiture of that vehicle. This is intended to make it harder for illegal migrants to lead a settled life in the UK.
The Government intends to make it harder for illegal migrants to live and work in the UK by working with banks and building societies to restrict their access to bank accounts.
The Immigration At 2014 prohibited banks and building societies from opening current accounts or individuals who are in the UK unlawfully. Checks are performed with the anti- fraud organisation Cifas. The new Bill goes further and includes measures to prevent illegal migrants from continuing to operate existing bank accounts. This includes bank accounts opened before the 2014 Act prohibition came into force and also where accounts were opened during a period of lawful stay but where the migrant has remained in the UK after their leave expired.
Banks and building societies will be required to check regularly whether they are operating a current account for a person known to be in the UK illegally, according to information provided by the home office via a specified organisation. If a bank establishes that a customer is an illegal migrant, they will have a duty to report the match and details of any other accounts they provide to the Home Office. Measures in the bill will provide the home office with a graduated range of option which could be deployed where a current account holder is confirmed to be unlawfully present. These include requiring banks and building societies to close the illegal migrant’s accounts as soon as reasonably practicable. This measure will be used in routine cases to disrupt the illegal migrant’s ability to remain in the UK and to encourage them to leave voluntarily. The Home Office will be granted the power to apply to the courts to freeze the current account until the illegal migrant leaves the UK. Use of this power is intended to be targeted towards hard to remove cases with significant funds, to leverage co-operation with the removal process. The Bill provides for prosecuting individuals for the new criminal offence of working illegally and recovering wages as proceeds of crime. This measure will be used where there is clear evidence that the assets are the proceeds of illegal working and the person meets the criteria for prosecution. Where the account is frozen, the individual will be able to access their funds to meet basic essential living needs and the level of funds will be determined by the courts in such cases.
The measures are intended to make it harder to live a settled life unlawfully in the UK and to incentivise voluntary departure.
The Government intends to make it more difficult for those with no right to be in the UK to rent private accommodation.
The Immigration Act 2014 introduced the Right to Rent scheme, which set out to prohibit illegal migrants from accessing private sector rented housing. The Right to Rent scheme was first implemented in part of the West Midlands and the Government has announced its intention to expand the scheme across the UK. Under the scheme, private landlords, letting agents and homeowners who let rooms need to check the right of prospective tenants to be in the country by conducting simple document checks, for example a passport or biometric residence permit. Landlords who fail to make the right checks are liable for a civil penalty of up to £3,000 per illegal migrant tenant.
Immigration status is not currently a ground for eviction, but landlords may be able to gain possession for other reasons. The Bill will enable landlords to evict illegal migrant tenants more easily, and in some circumstances without a court order. Landlords will obtain a notice issued by the Home Office which confirms that the tenant is disqualified from renting in the UK as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property. The Government is also introducing four new criminal offences to target unscrupulous landlords and agents who exploit migrants and who repeatedly fail to carry out right to rent checks, fail to take steps to remove illegal migrants from their property. These landlords or agents may face a fine, up to five years imprisonment, both a fine and imprisonment and further sanctions under the Proceeds of Crime Act.
The Bill intends to encourage illegal migrants, who are evicted, to make arrangements to depart from the UK. If they do not the Government states that they will take steps to remove them.
The Government intends to tackle illegal immigration and minimise its impact on public services, communities and businesses in the UK.
Immigration officers currently have powers to examine, arrest and detain illegal migrants for the purpose of removal. They also have search powers to find passports and travel documents to aid removal but if they find other evidence of use to law enforcement partners they cannot always act.
Immigration officers currently do not have powers to search for and seize evidence where the intention is to take administrative action, either to remove an illegal migrant from the UK or to serve a civil penalty notice on an employer or landlord. The Bill provides additional powers of search and seizure, but no extra entry powers.
The Immigration Bill will give immigration officers powers to seize and pass on evidence where there are reasonable grounds to believe it has been obtained through, or is evidence of, a crime and where it is necessary to prevent it being concealed, damaged, or destroyed.
The Bill creates new powers to allow officers to search for and seize evidence of illegal working (such as pay slips or time sheets) or of illegal renting (tenancy agreements and letting paperwork).
Detained migrants and prisoners facing deportation are subject to routine searches for items which may pose a threat to security, but not for nationality documents. This Bill creates new powers to search for and seize these documents which will help speed up removal.
The Bill ensures warrants for immigration officers to enter premises are aligned with police warrants.
The Bill provides a power to cancel leave extended by statute where conditions of leave have been breached or the applicant uses or has used deception in seeking leave to remain.
The Government intends to create a new power to allow the Home Office to require the courts to tag foreign offenders released on immigration bail but are waiting to be deported so that the Government always knows exactly where they are. This is intended to prevent absconding and increase the number of criminals deported. Currently, when a foreign national offender is released on bail, a judge has the discretion to tag a foreign national offender. The Immigration Bill will change the law to allow the Home Office to mandate a tag as a bail condition when an individual is released on bail. Tagging foreign national offenders using GPS technology is intended to allow immigration officers to more quickly re-detain them when deportation is imminent. The Government considers that monitoring individuals using GPS tags will also improve public protection.Illegal migrants, including foreign national offenders, who are awaiting deportation or removal, can be placed on conditions, such as reporting, if detention is not appropriate. The Government considers that the current legal framework for this is complex and fragmented as there are six different legal statuses including immigration bail and temporary admission. It is believed that this complexity is confusing and leads to litigation. The reforms will create a single power of bail, where it is clear what conditions can be imposed, when and what the sanction is for breaching conditions. Tagging will not automatically apply to all non-detained foreign national offenders as the government will seek electronic monitoring as a condition of bail when an foreign national offender is released.
The Government intends to make it easier to remove those who have no right to be in the UK by enabling them to remove a person whose human rights claim has been refused and making them appeal outside the UK, provided this does not breach their human rights. The intention is to extend the current “ deport first , appeal later” policy to other immigration cases and not just foreign national offenders liable to deportation. The Immigration Act 2014 reduced the number of rights of appeal against immigration decisions from 17 to 4. It also created a new power to allow those subject to deportation, primarily foreign criminals, to be deported first so that they have to submit any appeal after their removal – i.e. from outside the UK – so long as this does not cause serious irreversible harm or, otherwise breaches human rights. The Government now plans to extend this power to enable it to be applied to all immigration cases. A person will therefore only be able to appeal before removal where an asylum claim has been refused (provided it is not clearly unfounded) or where a human rights claim has been refused (provided it is not clearly unfounded) and there is a real risk of serious irreversible harm or other breach of human rights if the person is removed before the appeal. Where there is a real risk of serious irreversible harm, or breach of human rights, the Government states that the person cannot be removed from the UK before their appeal has been determined.
The government expects more illegal migrants to leave the UK rather than access support. They intend to restrict the support they give to people whose claims for asylum have been found unsubstantiated and their dependants, to those who are destitute and face a genuine obstacle to leaving the UK through changes to the Immigration and Asylum Act 1999.
The UK provides support for asylum seekers who would otherwise be destitute until their claim is finally determined, in line with their international obligations. However, the Immigration and Asylum Act 1999 provides support in broader circumstances. Section 94(5) allows failed asylum seekers with children to continue to receive the same support once their asylum claim has been finally rejected. Section 4 of the 1999 Act provides support for other failed asylum seekers and other categories of migrants.
The Immigration Bill aims to reduce the scope for such support to remove incentives for failed asylum seekers to remain in the UK illegally.
The Bill will make these key changes to the existing support framework: those with children with them when their asylum claim and any appeal are rejected will no longer be treated as though they were still asylum seekers and will cease to be eligible for support under section 95; section 4 will be repealed and support will only be available to failed asylum seekers and any dependent children if there is a practical obstacle that prevents them from leaving the UK.
To avoid destitution, the Home Office will continue to support failed asylum seekers with children if they cannot leave the UK because of a practical obstacle beyond their control (for example because they are unable to travel for medical reasons or because they are waiting for their national embassy to issue them with travel documents).
As regards how the proposals affect asylum seekers and refugees, the Government states that they will not. They state that they will continue to meet their international obligations to both groups. Asylum seekers who are destitute will be provided with accommodation if they need it and a weekly allowance to cover their essential living needs. If they are granted refugee status, they will have access to the labour market and be eligible to apply for mainstream benefits.
There will be transitional arrangements for failed asylum seekers already in receipt of support under section 95 or section 4 of the 1999 Act when the new measures come into force. This will avoid the scenario in which large numbers of families lose support abruptly. There are existing powers to manage these cases off support if they refuse to take steps to leave the UK voluntarily and these will be used on a case-by-case basis.
The Government state that they intend to crack down on those who exploit illegal migrants by seeking to smuggle them into the UK. The Bill will give Border Force new powers to target vessels in UK territorial waters suspected of involvement in facilitating illegal entry into the UK.Border Force operates a fleet of cutters to enforce revenue and customs matters, in particular to lead the fight against the importation of controlled substances. Officers on board cannot exercise immigration powers in UK territorial waters so cannot intervene when they identify vessels which they suspect to be involved in facilitating illegal migration. The Immigration Bill will provide Border Force Officers with new powers to: stop, board, divert and detain a vessel where there are reasonable grounds to suspect that it is being used to facilitate the breach of immigration law or is being used in connection with such facilitation; search a ship and anyone and anything on the ship to obtain information or evidence of the facilitation offence; arrest of any person reasonably suspected of being guilty of an offence of facilitation and seize relevant information or evidence; use reasonable force in the exercise of any of these powers or functions.
When passengers arrive on international commercial flights they must present at immigration control. Carriers and port operators who fail to comply with their legal obligations in this regard may be liable for a criminal offence. The Immigration Bill will create a civil penalty scheme to incentivise carriers and port operators to invest in better passenger management processes. The detail of the scheme will be in secondary legislation and codes of practice, including the maximum penalty that can be imposed.
Travel bans restrict the movement of named individuals associated with regimes or groups, including terrorist groups, whose behaviour is considered unacceptable by the international community. The decision to impose a travel ban is made either by the United Nations’ Security Council or by the Council of the European Union. To implement travel bans in the UK, secondary legislation is laid before Parliament to amend the Immigration (Designation of Travel Bans) Order 2000. The Immigration Bill will remove the need to update this secondary legislation. Instead international travel bans against non EU nationals will take effect in the UK automatically.
The code of practice will outline the standard of spoken English to be met, the action to be taken by a public authority where someone does not meet that standard, the procedure to be operated to deal with any complaints and how the public authority can comply with its other duties including its obligations under the Equality Act 2010.
The Government will place a duty on public authorities to ensure that each person who works for a public authority in a customer-facing role, speaks fluent English. In determining how to comply with this duty, a public authority must have regard to a code of practice. The duty will ensure every citizen receiving help or advice is served by someone who can provide them with advice in clear English.
At the moment, the Government believes that there are many vital customer-facing public sector roles which do not require the job holder to be a fluent English speaker. This includes unqualified teachers, teaching assistants and unregulated NHS staff. It is considered that this cannot be allowed to continue for roles where communication with the British public is vital to deliver an effective service.
The Government wants to encourage businesses to source the skilled workers that they need from the resident labour market. They intend to introduce an immigration skills charge , which is intended to help address current and projected skills needs in the UK economy and contribute to reducing net migration.
The Bill will also allow the Home Office to formalise the framework of costs underpinning the passport fees to apparently better reflect the costs incurred in providing passport services, for example the costs of processing more complex applications requiring costly Home Office interventions, and to allow some passport fees to be set at above cost. This is intended to alleviate the corresponding burden on the vast majority of passport applicants and potentially facilitate further fee reductions.
Existing legislation governing the registration of births, deaths, marriages and civil partnerships is considered restrictive in terms of the products and services for which fees may be charged. The Bill will introduce what is stated to be modernised and flexible fee-raising powers in respect of services provided, enabling fees to be set for a wider range of products and services than is currently possible. This is stated to be intended to reduce the burden for providing registration services on the taxpayer by allowing such services to become increasingly self-sufficient.
The Bill will introduce a new immigration skills charge which will be applied to employers sponsoring non-EEA nationals who come to the UK under Tier 2 of the Points-Based System. The specific employers and amount will be set following consultation. The money raised will then be used to address skills gaps in the UK by contributing to funding training, particularly more apprenticeships.
CONSIDERATIONS
On the basis of the new Bill as per the Government’s intentions, those without leave to remain may seriously wish to consider seeking to regularise their immigration status in the UK. It is not every person who is undocumented who cannot establish a legal basis of stay upon application. It is possible for such a person to rely upon the Immigration Rules themselves as a basis of stay.
A person may be able to show by way of documentary evidence that they have been living in the UK continuously for at least 20years and be granted leave to remain.
A person without leave may be able to show that he has a child aged under 18years in the UK who has spent at least 7years continuously here and argue that it would be unreasonableness to expect the child to be removed with the parent to the country of origin.
Further a young person aged between 18 and 25years may also be able to show that they have lived continuously in the UK for half their lives.
It may also be possible to show that they are applicable exceptional circumstances in an individual or family case such that they should be granted leave to remain in the UK outside the immigration rules by reliance upon Article 8 of the ECHR.
A single mother with no leave to remain may have a child who is British by virtue for example of that child having been born of a British or settled father. A “Zambrano” application or family life Article 8 human rights application may be submitted to the Home Office. As regards the “Zambrano” application, a primary carer of a British citizen will qualify for a derivative right of residence where they can show that they are a primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if they as the primary carer are required to leave the UK.
An undocumented father may have a British child but be separated from the British or settled mother yet be able to obtain an order from the family courts ordering contact and therefore be able to apply for leave to remain as a parent seeking to have access to the child.
The Government intends to extend the “ deport first, appeal later ” powers to all immigration cases. This certification procedure is challengeable (where there are merits to the case) by way of judicial review and where a claim is made in some cases removal is normally suspended pending a decision on grant of permission to proceed with the claim. The Home Office has published guidance on how to apply the “serious irreversible harm test” and the relevant guidance gives the following example of where serious irreversible harm could result: the person has a genuine and subsisting relationship with a child or partner who is seriously ill, requires full-time care, and there is no one else who can provide that care. Not many people will be able to meet the high threshold applicable to resist removal. In the Government’s Fact Sheet, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response as published on 17 September 2017 is ,”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. Basically the answer is none and as such providing for an out of country appeal in practise is simply an illusion, with only a mere hope of obtaining a successful outcome, however in deserving cases with prospects of success, it is suggested that the certification procedure be challenged by way judicial review prior to removal action being taken.
CONCLUSION
It is therefore likely that before the Bill becomes law, the Home Office may well see an unexpected flurry of activity as regards submission of applications for leave to remain with the result that those that had been the target of the new provisions may well obtain leave to remain, if not granted directly upon application by the Home Office themselves or failing that following a successful in country appeal as it is not every case that can be certified or not have such certification successfully lifted.
INTRODUCTION
The Government has brought in changes in relation to restricting appeal rights and these mostly affect foreign national criminals subject to deportation. In essence where foreign national criminal who are subject to deportation do not raise a protection claim or human rights claim they will not obtain a right of appeal. However where they do in fact raise these claims in order to resist deportation, the Home Office may certify the claim in particular relying upon new certification powers thereby denying the foreign national criminal an in- country right of appeal altogether and instead requiring them to appeal outside the UK following departure.
LIABILITY TO DEPORTATION
Non- EEA foreign criminals may be considered for deportation under the Immigration Act 1971 or the UK Borders Act 2007.
To be subject to automatic deportation provisions the foreign national criminal must meet the relevant criteria under the UK Border Act 2007. Where the foreign national criminal does not meet the automatic deportation threshold criteria consideration is given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good.
Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:
Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Where an exception applies then automatics deportation cannot continue however that does not necessarily preclude deportation action under the Immigration Act 1971. An individual is also exempt from automatic deportation under sections 33(1)(b) of the UK Borders Act 2007 if they fall within sections 7 or 8 of the Immigration Act 1971 and they are exempt from deportation. Where the Secretary of State decides none of the exceptions apply and that deportation under section 32 of the UK Borders Act 2007 is required, a decision to deport must be served setting out why the foreign national criminal’s presence is not conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the United Kingdom is not conductive to the public good. This gives the Secretary of State discretion to act in a way that reflects the pubic interest.
A non -EEA foreign national will normally be considered for deportation pursuant to the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below;
The Home Office can also take into account:
Section 3(5)(b) of the Immigration Act 1971 provides for deportation of family members if another person to whose family he belongs is or has been ordered to be deported. When considering whether section 3(5)(b) is appropriate full account must be taken of paragraphs 365 to 366 of the Immigration Rules. Section 7(1) of the Immigration Act 1971 states that it is not lawful to deport Commonwealth or Irish Citizens who were Commonwealth or Irish Citizens and were ordinarily resident in the UK for the commencement of the Act in January 1973 and ordinarily resident in the UK for at least five years before the decision to make a deportation order. Where the Home Office decide that deportation is appropriate then a decision to make a deportation order is served by the Secretary of State setting out why the foreign national’s presence is non-conducive to the public good. The decision informs the foreign national that they may if they wish make representations within 20 working days as to why they should not be deported. The decision is required to issue a warning under Section 120 of the Nationality, Immigration and Asylum Act 2002 which places a continuing obligation to raise with the home office any reason why they should be permitted to remain in the UK including any time there is a change of circumstances as soon as they occur. The decision is also required to seek representations from the foreign national about whether there are any reasons why any appeal against a final refusal of any claim by the Home Office should not be certified under section 94B of the 2002 Act, the effect of which would be an out of country right of appeal. Article 8 claims from foreign national criminals are considered under paragraphs 398 to 399A of the Immigration Rules also with reference to sections 117A to 117D of the Nationality Immigration and Asylum Act 2002(as amended by section 19 of the Immigration Act 2014).
If there is found to be a breach of the UK’s obligations under the refugee convention or the ECHR then deportation under either the UK Borders Act 2007 of the Immigration Act 1971 will not be possible.
DEPORTATION APPEALS AFTER 20 OCTOBER 2014
The changes to the immigration appeals system in the Immigration Act 2014 are being brought into force on a phased basis. The first phase started on 20 October 2014 and included foreign criminals being deported. The new appeals regime will also apply to persons being deported as family members of foreign criminals under section 3(5)(b) of the Immigration Act 1971.
Rights of appeal are restructured such that a person only has a right of appeal where the Secretary of State refuses a human rights claim or a protection claim or revokes a person’s protection status. The 2014 Act does not change the rights of appeal under EEA regulations and deprivation of citizenship.
The place from which an appeal can be brought or continued is dependant on where the person was when the claim was made and the nature of the claim. The definition of “foreign criminals” does not include all deportation cases. Some persons who are not foreign nationals may be subject to deportation. During the first phase of commencement of the new Act these persons will retain rights of appeal under the pre- Immigration Act 2014 regime. Where a foreign national criminal makes a human rights or protection claim if the claim is refused the right of appeal is under the new Act. If no representations are made after the above mentioned 20working day deadline for representations has passed, the Secretary of State is most likely to make a decision on issuing a deportation order on the facts that are before them. As a human right claim will not have been made by the individual the deportation order will not be appealable and the individual may expect to be removed. Any representations received after the deportation order has been made must still be considered by the Home office. If it is decided on the basis of the post – deportation order representations that deportation should not be pursued the deportation order will be revoked. However under the new Act there is no longer a right of appeal against deportation or the refusal to revoke a deportation order. Therefore from 20 October 2014 foreign criminals will no longer be able to appeal against a deportation decision. Any foreign criminal who applies to have their deportation order revoked will fall under the new appeals regime if they are served with a refusal to revoke( a revocation decision) on or after 20 October 2014. This will be the case irrespective of whether the decision is served in the UK or overseas.
A person is however likely to have a right of appeal where the Secretary of State refuses to revoke a deportation order only where they make a protection or human rights claim which is refused.
CERTIFICATION
If the representations raise protection or human rights grounds and it is decided to refuse the claim(s), the Secretary of State is required to consider whether the claims should be certified under existing powers (section 96 and section 94 of the 2002 Nationality and Immigration Act) or in the case of non- protection 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 to deportation in certain circumstances. Where it is not possible to certify a protection or human rights claim under the above mentioned provisions then the foreign national will have an in- country right if appeal.
CONCLUSION
The current government ‘s policy in relation to foreign national criminals is ” deport first, appeal later”. In practice therefore there are instances of foreign national criminals who having held indefinite leave to remain for up to 20years with families here having their human rights claims being refused and certified under Section 94B of the 2002 Act. They are expected to appeal outside the UK following their departure. The Home Office themselves acknowledge that meeting the threshold for the irreversible harm test in this regards is high and that cases that will succeed are rare. Therefore although there is a reduction in rights of appeal as a result of the amending provisions of the 2014 Act and the introduction of new and additional certifying powers, in practice the mere fact of potentially being able to appeal a human rights claim if refused is just but a mere hope.
Where certification is applied, this means currently in light of the relatively new appeal provisions, judicial review claims will be lodged as the Section 94B power of certification is discretionary and it may also be possible to seek to challenge the certification decision also having regard to what appears a restrictive accompanying policy being applied in conjunction with Section 94B of the 2002 Act. Therefore rather than expediting removals of foreign national prisoners by denying them a right of appeal in- country, for some time at least there will be a priority by claimants to take judicial review action. Having regard to the lengthy period of time the Upper Tier Tribunal is taking to consider such types of review claims, it is not only likely that it will take longer to deport affected persons but also that whilst judicial review claims are pending they may even be granted bail by the Tribunal.
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.
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: