The Home Office has within the last year ( more so since the coming into force of the Immigration Act 2014) increasingly sought to put in place measures to deport as many foreign criminals as possible from the UK but in so doing, seem to be deliberately blurring the line between the relevant applicable law and principles that apply when deporting a foreign national criminal as opposed to an EEA national criminal subject to deportation. There has, for example, been a deliberate mirroring of the Section 94B certification, which applies to non- EEA foreign national criminals and the Regulation 24AA Certification that applies to EEA nationals similarly subject to deportation – the intention being to deny deportees an in – country right of appeal. In terms of relevant litigation in this regards for both categories of deportees, the Secretary has so far been winning, as in Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department  EWCA Civ 1020 in relation to section 94B and as regards Regulation 24AA, of which judgment was handed down by the Upper Tribunal on 26 November 2015, following a judicial review claim. The judgment is not yet in the public domain.
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  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).
Having regard to EEA law with particular reference to the provisions of the Directive 2004/38/EC and the differing levels of protection it provides to EEA nationals against expulsion, the Home Office have been aware for a considerable length of time of how difficult it is to seek to remove EEA nationals, even those subject to deportation having been convicted of criminal offences in the United Kingdom. In brief the mentioned Directive provides that EU member states may take expulsion decisions against Union citizens and their family members on grounds of public policy, public security and public health with such measures requiring to be justified and in compliance with the principle of proportionality. The personal conduct of the EEA citizen must also represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
It is however becoming increasingly clear since the coming into force of Regulation 24AA of the 2006 EEA Regulations that the Home Office are making efforts to deport EEA nationals almost on the same basis as non -EEA foreign national criminals by resorting to human rights considerations and certifying arising human rights claim as a justification of effecting increased deportations rather than applying relevant law originating from the parent Directive 2004/38/EC. Regulation 24AA was initially rolled out to a limited cohort of cases from 28 July 2014 however that first phase came to an end on 17 October 2014 and as such the full practical effect of the regulation having wider applicability is now being felt. Regulation 24AA certification must now be considered in all deportation decisions made pursuant to the 2006 EEA Regulations unless it falls within certain exceptions.
In order to seek to substantially reduce the numbers of EEA nationals having their appeals heard whilst they are present in the UK, regulation 24AA is being applied by the UK government to take effect whether or not an EEA national has had a chance to appeal a negative EEA decision or where he has so appealed but the appeal is yet to be determined . The effect of regulation 24AA is that the Home Office can issue a certificate within the negative decision and warning that removal directions may or will be set directing the EEA national’s removal from the UK pending the outcome of the appeal so long as the Home Office is satisfied that removal would not be unlawful under Section 6 of the Human Rights Act 1998 which requires the Home Office not to act contrary to the Human Rights Convention. The grounds upon which the Home Office can certify the decision include that the EEA citizen would not before the appeal is finally determined face a real risk of serious irreversible harm if removed from the United Kingdom. This sets a very high threshold to overcome.
Where such removal directions are set, in order to prevent removal the Home Office will expect that an application for an interim order/injunctive relief be made to the Upper Tier Tribunal or other Court. Such applications are usually made by way of a judicial review claim. So long as the interim order application has been submitted to the Upper Tribunal or relevant Court the removal will be deferred upon proof of an issued sealed claim without a decision upon the interim order having actually been taken by the Tribunal at the same time as lodgement.
There are however certain exceptions set out within regulation 24AA where removal will take place even if an application for an interim order is made. Regulation 24 AA has an accompanying Home Office Guidance Policy, ie The Regulation 24AA Certification Guidance for European Economic Area Deportation Cases Version 2.0 , 20 October 2014. The guidance applies to any EEA national or non-EEA national with enforceable EU law rights who fall to be deported under regulation 19(3)(b) of the 2006 EEA Regulations. The guidance among other provisions also provides for some very limited cases considered not suitable for regulation 24AA Certification.
The application of a regulation 24AA certificate therefore does not prevent a person from lodging an appeal from within the UK, rather, by amending regulation 29 of the 2006 EEA Regulations, it removes the suspensive effect of that appeal so that whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK. The amended EEA Regulations however allow a person who has been deported to apply from out of country for permission to re-enter the UK solely in order to make submissions in person at their appeal hearing. The question currently appears to be whether removal and exclusion of EEA nationals by reliance on provisions stemming from regulation 24AA is lawful and justifiable as this regulation appears to focus on human rights considerations. Although the human rights claim may have been certified, the EEA claim itself will not be. It may be argued that the resultant removal directions cannot be relied upon to deport the EEA national where the only reason is that there is a certification the human rights claim whilst the EEA appeal/claim remains pending. It can also be readily argued that having regard to the parent Directive, to the need to justify EEA deportations and to only deport where it is proportionate and justifiable to do so the introduction of regulation 24AA and its accompanying policy appears somewhat contrary to basic EEA principles on expulsion of EEA nationals from host member states.
It appears that as long as the Home Office are satisfied that pending the outcome of the appeal, removal of an EEA national will not be unlawful under Section 6 of the Human Rights Act 1998 then removal of an EEA national subject to deportation is justifiable. In this regards, an issue deserving of real consideration is that as a right of residence under EEA law provides a higher level of protection than that under a human rights claim, in order to seek to circumvent the practical effect of regulation 24AA an EEA national may tactfully seek to exclude reliance upon human rights provisions during the course of a claim or appeal. The Home Office may however seek to treat a human rights claim as impliedly raised in any case depending on the facts put forward during the claim. The current Home Office approach seeming to combine EEA law and human rights law however should not be necessary as these are separate and distinct areas of law. The grounds for certification in regards to Regulation 24AA are based on a test of facing a real risk of serious irreversible harm if the EEA national is removed. Where an EEA claim or appeal is raised, having regard to EEA law the grounds upon which exclusion of an EEA national are to be justified are set out within the parent Directive. Regulation 24AA contains none of the relevant EEA considerations required to justify exclusion more so when that regulation is clearly stated to be intended to have regards to human rights considerations.
Pending some detailed clarifications from the higher courts, the issue therefore is whether it is lawful for the Home Office to seek to set removal directions and exclude an EEA national from the United Kingdom having regard only to human rights provisions of the ECHR as opposed to relevant provisions of the parent Directive 2004/39/EC whilst an EEA claim remains pending and uncertified. There is thus currently an argument to be put forward that a regulation 24 AA certification as it applies in practice has the effect that reliance upon it to exclude EEA nationals from the UK before their deportation EEA appeals are heard may result in a breach of EEA law itself generally and a breach of the EEA national’s individual rights specifically.
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:
- the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
- the period of imprisonment is 12 months or more, and
- the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
- the criminal was serving that sentence on or after 1 August 2008, and
- the criminal had not been served with a notice of decision to deport before 1 August 2008, and
- none of the exceptions set out in section 33 of the 2007 Act apply.
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 non -EEA foreign national is recommended for deportation by a court empowered to do so;
- the non- EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime;
- the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
- the non EEA foreign national is a persistent offender. “Persistent offender” means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
- the non EEA foreign national has been sentenced to less than 12 months’ imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;
The Home Office can also take into account:
- Cautions: Police cautions can also be taken into account when considering whether deportation is conducive to the public good;
- Previous Convictions: All previous convictions can be taken into consideration when making a deportation decision on or after 13 December 2012;
- Serious Harm offences: The Secretary of State has discretion to consider whether an offence has caused serious harm. Such an offence may result in a sentence of less than 12 months but may still be grounds on which to pursue deportation.
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.
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.
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.
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.