In this blog post, Jacqueline Moore, who heads up the immigration team in our Glasgow office, focuses on the changes introduced by the Act to the appeals system and analyses what these changes could mean for you.

Why more change?

The fact that more changes are being introduced to the immigration appeal system comes as no surprise, particularly to those who have worked in this area for a lengthy period.  Over the last two decades there has been an almost constant set of changes imposed upon the appeals system.

These changes are all motivated by the government's belief that the appeal system is abused and that migrants use the appeal system to drag out unmeritorious cases in order to prolong their stay in the UK.

Therefore, the government's mind-set is that if they restrict appeal rights giving themselves more power in the process (more detail on this below) then there will be fewer appeals and less opportunity for abuse of the system.

With statistical evidence revealing that almost half of all immigration appeals are successful, it would seem that the Government is putting the cart before the horse and should be focusing on getting the decision right at the first instance rather than changing the rule book.

This blog post will now outline the main changes contained in the Act to the Appeals system.

Appeal rights down from seventeen to four

One of the governments leading headlines is that they have reduced the number of appealable immigration decisions from seventeen to four. Some commentators have aptly referred to this as the scything of appeal rights ( http://www.freemovement.org.uk/appeals-provisions-of-the-immigration-act-2014/).

You can now only appeal in a set of four limited circumstances:-

  1. That your removal is a breach of the UK's obligations under the refugee convention
  2. That your removal from the UK would breach the UK's obligations in relation to your eligibility for a grant of humanitarian protection
  3. That your removal is a breach of your human rights in terms of Section 6 of the Human Rights Act
  4. That the decision to revoke your protection status breaches the UK's obligations

This now means that if you want an appeal right you must make a human rights claim as part of your application otherwise you will have no appeal. It is not all doom and gloom, however, and there is some good news here, as those who make human rights applications as overstayers will now have an automatic right of appeal where previously these individuals were placed in a long period of limbo  (sometimes years) while they waited for an enforcement decision being issued to trigger an appeal right.

The crucial decision for all applicants and their representatives will be whether or not a human rights claim should be made. A word of caution; although a human rights claim will trigger an in country appeal, if the Home Office consider the claim to be manifestly ill-founded they will certify it which means there will be no independent appeal right to the tribunal and instead the only avenue will be judicial review.  Worst still, if the claim is certified this means that your leave will not be extended during any judicial review challenge to the decision.

Raising new matters at appeal

One of the driving goals of this Secretary of State for the Home Office is to have more control over the appeals process. A key measure designed to meet this goal is the introduction of a new rule which requires the Secretary of State's representative to give consent before any new matter can be introduced in court.   For those of us who practice regularly before the First Tier Tribunal, there is little optimism about the likelihood of the Secretary of State's representative (in court known as Home Office Presenting Officer (HOPO))  granting consent.  In the past, it has often been this new matter, which has been the strongest aspect of the client's case and therefore the HOPO's have fought hard to argue that it should not be admitted for consideration by the Tribunal.  Under the new rules, the HOPOs have been dealt all the cards and will undoubtedly use them to their best advantage.

Administrative review challenge

For those who do not make a human rights claim, administrative review is the new ground for challenging refusal of immigration decisions. Essentially, the administrative review process is a process designed to correct case working errors. Although the review will go to a different decision maker within the Home Office, there are serious questions over the independence of this scheme and it rather seems that the Home Office are marking their own homework.

How will administrative review work?

An individual who receives a refusal decision will have 28 days to lodge administrative review. The process will cost £80. It will be essential that the applicant or the representative set out in full detail with any supporting evidence the reason why they consider the decision to be wrong. 

What are the potential outcomes with administrative review?

In the best case scenario, the Home Office will accept that a case-working error has been made and the leave sought will be granted.  Alternatively, the Home Office could accept that an error has been made but refuse the application for other reasons or the reviewer could uphold the original decision.

If the refusal decision is upheld, the only challenge against this decision will be judicial review which is a slow process and for those who do not qualify for legal aid funding very expensive.  Further, although an applicant's right to work will continue throughout the administrative review process it will not continue whilst the matter goes to judicial review which can take many months to determine.

Time-scale for Change

The reforms to the immigration appeals system in the Immigration Act 2014 are being phased in from 20 October.  As of 20 October 2014, any Tier 4 application made after that date will no longer carry an in country right of appeal.  If the applicant wishes to challenge the decision they will have to do so through Administrative Review. 

The exception to this will be where a human rights claim has been made as part of the Tier 4 (General) application, however as stated above a human rights challenge can be certified as unfounded, and should only be made after having taken specialist legal advice.

There are however transitional provisions. The new appeal provisions are also in force where a decision to deport has been made. Any Tier 4 applications (for either main applicant or dependant) made before 20 October 2014 but decided after this date will carry the right of appeal.  In terms of timing, the date of application is the date that the application is made online and the fee is paid.

There can be no doubt that the Government has (yet again) made an already complex system more difficult to navigate.

In our view, these changes mean that it is even more important than ever to ensure that your initial application meets the Immigration Rules and is accompanied by all the Specified Documentation required in order that you succeed at the first hurdle without having to either appeal or seek administrative review.

Please get in touch with the writer or any member of the team in Glasgow or Edinburgh if you require any further information or assistance in respect of an application or an appeal/administrative review.