By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
This blog on the Immigration Act 2014 explains the operation of the Immigration Appeal System as found in part 5 and 6 of the Nationality Immigration & Asylum Act 2002. The Act introduced fundamental changes to the appeal process. The new appeal system in the Immigration Act 2014 is being commenced on a phased basis. During the transition of the phased period some appeals may continue under the former appeals regime. The main changes to the appeal system made by the Immigration Act 2014 are that a right of appeal only arises when the Secretary of State for the Home Department:
1. Refuses a Human Rights claim
2. Refuses the protection claim namely a claim for Refugee or Humanitarian Protection status
3. Revokes protection status, namely Refugee or Humanitarian Protection status
The refusal of other applications 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 UK or has made a Protection Claim or Human Rights claim or a decision to Remove or Deport has been made, the person may be served with “a one stop notice” under section 120 of the Nationality Immigration & Asylum Act 2002. This notices places an ongoing duty on a person to raise any additional reasons or grounds other than those in the application that would permit him to remain in the UK. The purpose of the 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 a 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 in country.
In addition to the power to certify late claims there are other certification powers which affect rights of appeal. A claim can be certified under section 94 where it is considered to be clearly unfounded; Where a person is from a designated state listed in section 94(4). If a claim is certified under section 94 it has the effect of making the appeal out of country.
In the case of deportation of a foreign criminal there is a further certification power in section 94B where a Human Rights claim has been refused and there is not a risk of serious irreversible harm if the person is removed and made to appeal from outside the country. There are also certification powers that apply when a person can be safely returned to a third country to have their asylum claim considered without an appeal in the UK and there are powers to certify national security cases.
The New Grounds of Appeal
The Grounds of Appeal are set out in section 84. An Appeal against refusal of a Protection Claim must be brought on one or more of the following grounds:
1. That the removal of the appellant from the UK would breach the UK’s obligations; or that their removal from the UK under the Refugee Convention; or that the removal of the appellant from the UK would breach the UK’s obligations in relation to persons eligible for grounds of Humanitarian Protection or that removal of the appellant from the UK would be unlawful under section 6 of the Human Rights Act 1998.
An appeal against the refusal of a Human Rights claim may only be brought on the grounds that the decision is unlawful under section 6 of the Human Rights Act 1998.
Section 120 Notice
Section 120 states that the Secretary of State or Immigration Officer may serve a notice on a person who has made a Protection claim or Human Rights claim or made an application for Leave to Enter or Remain in the UK; or a decision to deport or remove has been made and once served with a section 120 notice a person who requires leave to be in the UK must provide the statement setting out any additional reasons or grounds they have for entering or remaining in the UK, or any grounds on which the person should not be removed from the UK. This is an ongoing duty so that the further statements should be made if a new reason or ground for remaining in the UK arises. Any reasons or grounds should be raised as soon as reasonably practical. There is no requirement to reiterate the same grounds or reasons the Secretary of State is already aware of or has considered.
All persons liable for Removal or Deportation will normally receive a section 120 Notice at some point in the process. Once a notice has been served it will not be reissued. A time limit may be specified on the section 120 Notice. If the time limit has expired the Secretary of State must consider the matter or grounds raised but may be able to certify any claim. The impact of a section 120 Notice is significant. If a person fails to respond to a Notice and then makes a claim later without a good reason, if the claim is refused, it may be certified under section 96 of the 2002 Act with the consequences that there will not be a right of appeal. Where a person makes a statement in response to section 120 Notice the person may be told that in order to have the matter considered they must make an application on a specified form or follow a specified process.
Places from which an Appeal may be brought
Section 92 of the 2002 Act sets out if a person can bring an appeal from within or outside the United Kingdom. Where a person is outside the UK when they made the claim they must appeal from outside the UK. When the person is inside the UK when they make a claim they may appeal from within the UK, unless the claim has been certified under section 94 or 94B.
Matters before the Tribunal
Section 85 as amended provides that on appeal against the decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision. However, there are restrictions on the consideration of matters which constitute new matters which have not previously been considered by the Secretary of State. 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. The first question is whether a matter is “a new matter” or “new evidence”. In the first instance the Secretary of State (here the presenting officers) will need to consider if the matter raised amount to “a new matter” under section 85(6). A matter is “a new matter” if it constitutes a Human Rights or Protection Claim and the Secretary of State has not previously considered the matter. A new matter must be clearly distinguishable from and outside the context of the original claim. A new matter does not include additional facts or evidence of the original claim.
Immigration Status during appeals
A person’s immigration status during appeal continues as it was before the appeal for the duration that the appeal is pending. Where the appeal is brought within the UK, the person has the additional protection that while the appeal is pending they may not be removed in accordance with section 78 of the 2002 Act.
Under section 3(c) of the Immigration Act 1971 leave is statutorily extended for those situations where a person had leave when they made an application and that leave expired prior to the Secretary of State making a decision or an appeal being determined. Section 3(d) of the 1971 Act provides for an extension of leave until any appeal is determined where a person’s leave is varied so that no leave remains. If an appeal is allowed the original decision will have been found by the Tribunal to be unlawful on the basis that it breaches the person’s human rights and or right to protection under Refugee Convention or Humanitarian Protection. The Home Office must respond to the allowed appeal by reconsidering the original decision. In most cases this will mean granting an 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.