BYE NOW… Appeal Later! Immigration Bill 2015 and the new Appeals Process

On the 13th October, the Immigration Bill 2015 will have its second reading in the House of Commons.

According to a press release from the Government, the main purpose of the Bill is to cut down on illegal migrants (including those whose Immigration visa has been refused) remaining in the United Kingdom. Steps to ensure migrants without a visa or indefinite leave to remain cannot stay in the UK include:

• Creating a new offence whereby if an individual is caught driving unlawfully in the UK their vehicle can be impounded and face a prison sentence of up to six months and an unlimited fine. Immigration enforcement officers will also be given the power to search people and property and seize driving licences if they suspect someone in the UK illegally.
• Building on the Immigration Act 2014 to ensure only those lawfully in the UK can open a bank account, rent a home and obtain a driver's licence.
• Targeting employers who take on illegal migrants and increasing the sanctions on individuals who work illegally in the UK.

Immigration Minister James Brokenshire said:

“The message is clear — if you are here illegally, you shouldn’t be entitled to receive the everyday benefits and services available to hard-working UK families and people who have come to this country legitimately to contribute.

Whether it is working, renting a flat, having a bank account or driving a car, the new Immigration Bill will help us to take tougher action than ever before on those who flout the law.

This Bill will build on the government’s work since 2010 to crack down on abuse and build an Immigration system that truly benefits Britain – by deterring illegal migrants from coming and making it harder for those already here to live and work in the UK.”

Changes to the Appeals Process

Perhaps one of the most important changes to be suggested by the Bill is the removing of the right to appeal whilst in the UK. Under the Immigration Act 2014, appeal rights for the Points Based System was stripped to the extent that the only grounds now available in which to mount an appeal are on Human Rights or refugee grounds.

Under the 2015 Bill, appeals must be launched whilst the Appellant is outside the UK.

This new regime will apply to all immigrants, even those who have been living in the UK under one type of visa, but have subsequently been denied the opportunity to switch or extend the visa they are currently on.

For example a student who has been studying in the UK for five years and has obtained a spouse and child within that time and is refused a General Working Visa will be required to leave the UK and his family in order to launch an appeal under Section 8 of the Human Rights Act (which protects the right to private and family life).

Exceptions to the Out of Country Appeal Rule

Exceptions can be made to the out of country appeal rule on the grounds that to force an individual to appeal outside the UK would breach his or her Human Rights or it would cause ‘serious irreversible harm’.

Now astute readers may note that under Section 8 of the Human Rights Act, the scenario outlined above technically breaches the students ‘right to family and private life’ or cause serious harm to the well-being of the child involved. However, under the 2015 Bill, the definition of ‘serious, irreversible harm’ is very narrow and a child being separated from a parent will not make the grade.

It has been noted that “This change will create more opportunities for prompt removals in Human Rights cases. Individuals whose case is certified will be liable to removal soon after the refusal decision is made. This will reduce detention costs. There will be an increased incentive to cooperate with removal to access the right of appeal where this is only available from overseas. The absence of an in-country right of appeal will remove the opportunity to exploit the appeal process to extend the individual's stay in the UK, and remove the scope for existing Human Rights to be strengthened or additional rights accumulated while awaiting the outcome of that in-country appeal.”

It should also be noted that it is very difficult for an individual to make a successful appeal if they are outside the UK and cannot meet directly with legal counsel and make a plea for their case in from of an Immigration judge in person.

What to do if you Wish to Appeal on Human Rights Grounds

If you have wish to appeal your immigration decision under Article 3 or Article 8 of the Human Rights Act, then it is imperative that you lodge your application immediately, in order to have it heard while you are in the UK.

We have recently had a number of successful appeals granted on Human Rights grounds. You can read about one example here. You can also call us on 0207 936 9960 to receive further information and make an appointment with one of our solicitors.

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