As immigration practitioners we encounter decisions in relation to applications made on the basis of people’s private and family life which do not carry the right of appeal. The tendency in recent years has been to segregate decisions where the applicant is an over stayer or an illegal entrant so that the refusal to vary leave to remain, are made without further steps to enforce removal leaving our clients without an appealable immigration decision, which would gain them access to the Courts.
When applications based on personal relationships and UK connections are made to the Home Office we argue it firstly under the Rules and secondly outside them. The arguments outside the Rules are made in the language that a decision maker might find appealing ie., using the Secretary of State’s own policies, highlighting exceptional circumstances, discussing unjustifiably harsh consequences and discussing infringement of Article 8. The remedy upon the refusal of such applications in the absence of right of appeal will necessarily be recourse to Judicial Review, now brought in the Upper Tribunal. Not every over stayer application misses out on the right of appeal, because under the Home Office policy, requests for removal directions of persons who did not receive removal directions together with the refusal of their application for leave should do so, if there are dependent children who are aged under 18 or who have lived in this country for more than three years or who are British citizens or where the applicant is being supported from public funds or where there are exceptional and compelling reasons present. The policy is activated only by an express request in a pre-action protocol letter.