No More In-Country Appeals From 1st December 2016
The ‘remove first, appeal later’ provisions of the Immigration Act 2016 (the Act) came into force on 1st December 2016. Under section 63 of the Act, the Home Office now has the power to temporarily remove a person from the UK even if they have an appeal on Human Rights grounds pending.
This new power has naturally caused alarm amongst the UK’s best Immigration lawyers, not to mention Human Rights groups.
In 2014, the Government introduced the right to deport people appealing Immigration decisions; however, only foreign criminals were affected. Section 63 extends the power and is likely to impact many.
Long wait for Human Rights appeals to be completed
According to the latest statistics, the success rate for Human Rights appeals is around 35%, with most cases taking around 44 weeks to complete. There are now 65,000 outstanding appeals waiting to be determined, an increase in the backlog of 22%.
As the law now stands, an appellant may be required to leave Britain for almost a year whilst waiting for their Human Rights based appeal to be decided. This will have an enormous impact on individuals lives; people will lose their jobs, miss out on precious time with children and other loved ones and could be forced to return to a country where they no longer have economic and/or social connections.
Furthermore, given that over a third of decisions made by the Home Office are found to be wrong, a successful appellant will have to rebuild all the social and economic ties they may have created in Britain before being forced to leave.
The appellant will also be forced to live in limbo for 11 or so months, unable to move forward with their lives, for all intents and purposes, forced to be stateless.
A legal challenge to the ‘remove first, appeal later’ power
In October 2015, the Home Office won a major victory in the Court of Appeal when Lord Justice Richards at the court of appeal ruled that it would not be a breach of European Human Rights legislation for two men convicted of drug offences to be deported before their appeal rights are exhausted. Immigration solicitors for the men argued that they would not have the best chance of a fair hearing if they were allowed to remain in Britain whilst the appeal was being heard.
The two men in the case both had families in the UK and lawyers had argued that deporting them would be a breach of their Human Rights.
Kevin Kiarie came to the UK from Kenya when he was three years old and was given Indefinite Leave to Remain as the dependent of an Asylum seeker. Courtney Byndloss came to the UK in 2002 and was later given leave to remain as the spouse of a British citizen. He appealed to stay in the UK to be with his eight children.
In his ruling, Richards LJ dismissed the argument that an appeal heard from overseas would not allow the men proper access to justice. In relation to the relationship between Byndloss and his children, and Kiarie and his family in the UK, he referred to the, “strong public interest in the deportation of foreign nationals who have committed serious criminal offences”.
Without this ruling, it is likely the Government would have been unable to extend the power to cover non-criminals.
Exceptions and limits to the ‘remove first, appeal later’ power
Asylum-seekers and those who are at serious risk of ‘irreversible harm’ if they are returned to their country of origin will be exempted from the ‘remove first, appeal later’ policy and allowed to run their appeals from the UK.
Home Office guidance has been updated to direct how Immigration officials should treat the new power.
For the moment, the guidance applies the new power only to cases where the appellant was in the country illegally when he or she made the relevant Human Rights claim and where the Human Rights claim is not founded on a relationship with a British national family member:
The term ‘family member’ means a partner, parent, or child, where there is evidence of the relationship.
This represents a relatively limited roll out of the new power and it is more or less in line with the statements of Ministers during the passage of the Immigration Act 2016. In 2015, the Immigration Minister James Broken-shire indicated that the power would be used to remove illegal immigrants:
“Through the Immigration Act 2014, we introduced a ‘deport first, appeal later’ rule for foreign national offenders.
“And now, through the Immigration Bill, we will remove even more illegal immigrants by extending this rule to all Immigration appeals, apart from where there is a risk of serious irreversible harm.”
In summary
This new power seems to be another example of the UK Government attempts to deter people from making appeals on Human Rights grounds following a Home Office decision. By extending the power to all migrants and only allowing exceptions on the grounds of Asylum and ‘irreversible harm’, the Government may succeed in making it even more difficult and expensive to challenge a decision.
To protect your interests, it is imperative that you contact a UK Immigration lawyer who can quickly give you the best advice and represent you in an appeal as soon as possible.
OTS Solicitors is one of the most respected Immigration law firms in London. Our Immigration team dealing with appeals comprises of Smit Kumar, Hans Sok Appadu and Maryem Ahmed, all of whom would be happy to talk to you about appealing a refusal on Human Rights grounds.
By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.