The major changes to rights of appeal and removal powers brought by the Immigration Act 2014 took full effect on 6 April 2015
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.
The major changes to rights of appeal and removal powers brought by the Immigration Act 2014 took full effect on 6 April 2015, although with some transitional provisions for existing cases
The commencement of the new appeals regime and removal powers have been in three stages.
1. Foreign criminals and Tier 4 applications (including family members) made on or after 20 October 2014
2. Tier 1, 2 and 5 applications (including family members) made on or after 2 March 2015
3. Against any decision on or after 6 April 2015 but, other than the above exceptions, not where the application was made prior to 6 April 2015, unless the decision on or after 6 April
The saving provisions that limited commencement only to Tier 4 for applications on or after 20 October 2014 then also Tiers 1, 2 and 5 for applications on or after 2 March 2015 are completely replaced by new much more time limited saving provisions for pre-existing applications
Essentially, the new appeals regime is commenced for decisions made on all applications on or after 6 April 2015 and for some applications made before that, in line with the previous versions of the Commencement Orders:
Where an application for Tier 4 leave to remain application (including family members) has already been made before 20 October 2014 and a refusal decision is made on or after 6 April 2015 which leaves the person with no leave, the old regime is preserved
Where an application for Tier 1, 2 or 5 leave to remain (including family members) has already been made before 2 March 2015 and a refusal decision is made on or after 6 April 2015 which leaves the person with no leave the old regime is preserved
Where an application was made before 6 April 2015 and a decision is made on or after 6 April 2015 to refuse leave to enter, entry clearance, a certificate of entitlement or to refuse to vary leave which leaves the person with no leave, the old regime is preserved.
However, there is an exception to this, which is where the decision is also a refusal of an asylum, protection or human rights claim, in which case the new regime applies (amended Article 9(c) of the No. 3 Order, wrought by Article 8 of the No. 4 Order);
Lastly, where a decision was made before 6 April 2015 and an appeal could have been brought under the old regime or has been brought and is pending, the old regime will apply
What about a person who has an outstanding judicial review challenging refusal of a human rights claim? Many such cases seek a new removal decision that would trigger a right of appeal: the applicant can never succeed with the Home Office because the Immigration Rules are not satisfied, but if the facts are strong might succeed on a right of appeal to an independent judge.
The problem is that under the new regime there is no such thing as a removal decision, only a general power to remove, and anyway a decision to remove does not generate a right of appeal, only refusal of a human rights claim does that. So now the judicial review cannot achieve a right of appeal.
The way forward is probably to withdraw the judicial review and to make a new human rights claim.
The same applies to old cases where a human rights claim has been made and rejected but with no right of appeal. The commencement of the new regime cannot confer a right of appeal on an old case, but a new application could