Old Human Rights Applications and New Human Rights Appeals

In a new Home Office policy Human Rights Applications refused before 6 April 2015 may fall within the criteria for reconsideration leading to a possible right of appeal before the First Tier Tribunal. Moreover, the new appeals regime under the Immigration Act 2014 restricts the right of appeal in many cases but is still relevant to appeals on Human Rights grounds. In this article we have set out in summary the new Home Office Immigration policy and appeals regime.

The right of appeal in Immigration decisions for Points Based System (PBS) migrants has been severely curtailed by recent changes to the Immigration Act (IA) 2014. PBS migrant applications are now restricted to the avenues of administrative or judicial review if they wish to have their application reconsidered, with very few exceptions.

One of those exceptions is contained in the Nationality, Immigration and Asylum Act 2002 (NIAA 2002), s 82 (as amended), which provides a right of appeal where the Secretary of State for the Home Department (SSHD) refuses a claim made on the basis of Human Rights or international protection. Under section 6 of the Human Rights Act 1998, public authorities (which include Immigration officials) must not act in breach of an individual’s rights under the European Convention on Human Rights.

A Human Rights Immigration Application would ordinarily raise two articles found in the Human Rights Act and European Convention on Human Rights that may assist with both Human Rights applications and grounds of appeal. These are:

• Article 3 which prohibits the use of torture. Therefore, if a person believes they will be subject to torture or punishment if they are deported to their home country then they can appeal the deportation on this ground
• Article 8 protects the right to private and family life. If an application is declined and it results in the applicant or a member of their family being separated or deported to a country where they have no support or ties, then they may well have grounds for an appeal under Article 8.

Therefore, following the recent Home Office policy changes to appeals and removals from 6 April 2015, a right of appeal derives directly from the refusal of a protection or Human Rights claim or the revocation of protection status.

Therefore, individuals whose applications have been refused may be able to apply for an appeal on Human Rights grounds, but only if they meet strict criteria.

Requests for Reconsiderations of Human Rights Based Claims Refused Without Right of Appeal Before 6^th April 2015

The Home Office has recently introduced a new policy on reconsideration of old Human Rights claims that were refused before 6^th April 2015 with no right of appeal. The aim of this new policy is to reduce the number of cases being brought for judicial review.

To be granted reconsideration, the applicant must meet certain criteria. These include:

• The claim would have a right of appeal if decided under the law as it applies from 6^th April 2015; and
• because the person had no leave to enter or remain in the UK when the claim was refused, they did not have a right of appeal under the law which applied before 6^th April 2015
• You did not receive a removal decision when the application for leave to remain was refused or subsequently
• You failed to leave the UK voluntarily, and
• You requested that a reconsideration (or removal decision) be made via:

- a written request, either from yourself, your solicitor or your MP

- a judicial review,

- a pre-action protocol (PAP) letter

When deciding whether or not an application should be considered, the policy states that the Home Office consider:

• The welfare of any children in the UK
• Any benefits being received by the applicant
• Any exceptional or compelling circumstances

The policy also states that under normal circumstances, an application will only be considered if:

• the refused application for leave to remain included a dependent child under 18 years who had been resident in the UK for three years or more at the time of application
• the applicant has a dependent child under the age of 18 years who is a British citizen
• the applicant is being supported by the Home Office or has provided evidence
• of being supported by a local authority in accordance with a duty in legislation
• there are exceptional and compelling reasons to reconsider the decision at this time, or
• it is operationally expedient or appropriate to reconsider the decision

If one of the criteria is satisfied, the decision will be reconsidered and either refused again or leave might be granted.

Recent Cases

In the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) the UT President Mr Justice McCloskey stated that, “In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such a refusal is proportionate to the legitimate aim of enforcing Immigration control.” This point is significant as it is confirmation, to an extent, of the argument that even if the new appeals regime under the IA 2014 restricts the right of appeal in many cases to Human Rights grounds, it is still relevant and important for the court to examine the terms of the applicable Immigration rules.

Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC) decided last month, mentioned Mostafa and did not overrule the decision or take the issues surrounding Article 8 any further. Stating, “The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only Human Rights grounds are available is whether Article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If article 8 is engaged, the Tribunal will need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that will inform the proportionality balancing exercise that must follow.”

Will The New Policy For Reconsideration Suceed in Reducing judicial review?

It is unlikely that pushing applicants towards administrative review will reduce cases of judicial review where an applicant feels they have grounds. Although administrative review is free of charge, it is not independent and will only check for errors of fact, (such as points being assessed correctly). judicial review may be costly; however, it does allow an applicant to challenge the decision in the high court on whether the correct procedure was applied and the law followed, which far out-reaches the scope of administrative review.

In Summary

Although the right of appeal under the PBS has been curtailed, if certain criteria are met then an avenue for appeal is open on Human Rights grounds. This is a complex area of law, and the case law is still being developed. If you wish to find out more about appealing your decision on Human Rights grounds, please phone our office on 0207 936 9960 to make an appointment to discuss your situation.

If you have any comments to make please feel free to jot your thoughts in the comments section below.