A BIT of heads up for those affected by UK Immigration law. The Immigration Bill 2015 which I have referred to in previous posts on this website has now come into force as The Immigration Act 2016. This legislation received royal assent on 12th May 2016. Anyone applying for leave to remain in the UK after that date will be affected by this law.
What are the changes?
There are many changes as usual. One change of particular interest is the removal of some of the remaining in country appeal rights.
To understand what this all means we have to go back to 2014. Before the Immigration Act of 2014 was passed in May 2014, anyone applying for leave to remain or indefinite leave to remain in the UK had a right of appeal against a decision to refuse that application as long as the applicant submitted their application before their leave expired. This provided a good check on the powers of the executive in immigration matters and protected the rights of many migrants.
The Immigration Act 2014 changed this position and introduced a new appeals regime whereby a person could only appeal against a decision of the Home Office if they had made a human rights or protection claim in their application to the Home Office. This meant that students and all other points based system migrants lost their in-country appeal rights at that time. The only remedy for them now is through the expensive and complex judicial review proceedings.
The Immigration Act 2016 has now gone further to remove the appeal rights in human rights matters except where an exception applies. The Act now requires applicants to leave the UK first before they can appeal against a decision of the Home Office.
What does this all mean?
When a person applies for indefinite leave to remain in the UK or leave to remain in the UK in any category, if their application is refused by the Home Office, they will have to leave the UK first before they can lodge an appeal against the decision to refuse their application.
This is something that will affect a lot of families as it means that a mother/father, wife or husband whose application has been refused will be temporarily separated from their spouse and family whilst they travel outside the UK to exercise their right of appeal.
Once they are outside the UK, they can lodge their notice of appeal with the Tribunal here in the UK. The First Tier Tribunal in the UK will hear their appeal whilst they are outside the UK. If they win their appeal, they can then return to the UK, but if they don’t, they will not be allowed to return.
The exception to this rule is that an appeal can still be brought from within the UK where a person has made a human rights claim and there is a real risk of serious irreversible harm if they leave the UK.
It is important to note that it is the Home Office that has been given the power to decide who gets to appeal from within the UK. Home Office caseworkers will make that decision when they are considering an application. That is a lot of power that has been given to the Home Office. Previously appeal rights were not decided on by the Home Office but by section 82 of the Nationality, Immigration and Asylum Act 2002.
What amounts to serious irreversible harm?
The Act does not define what amounts to ‘serious irreversible harm’. However, the Home Office has issued its own guidance on the issue. The guidance states that they will take into account a number of factors and that each case will be decided on its own facts. They have mentioned their duty to make decisions that promote the welfare and best interests of children who will be affected by their decisions.
However, the Home Office has already pointed out that having children who will be affected by their decision is not a trump card and does not necessarily mean that there will be irreversible harm if a parent had to leave them and go and exercise his/her appeal rights from outside the UK.
Interestingly enough, the Court of Appeal for England and Wales had already discussed this issue in the case of R (Kiarie and Byndloss) v SSHD (2015) EWCA Civ 1020. In that case, the court was dealing with a deportation case where the appellant was challenging the ‘deport first and appeal later’ provisions of the Immigration Act 2014.
The Court of Appeal essentially gave its approval for these new rules and stated that an out of country appeal does not of itself breach an appellant’s rights under the European Convention of Human Right. The Court held that an out of country right of appeal provides a remedy ‘that meets the essential requirements of effectiveness and fairness’ under the convention.
Since this decision, the Upper Tribunal has been dismissing applications for Judicial Review from applicants who are challenging the requirement for them to leave the UK first and appeal later.
What should applicants do?
It is advisable for those applying to the Home Office to do their research before submitting their applications. People will have to prepare their applications well because if the application is refused, one has to be prepared to leave their job, family and life here and go abroad to lodge an appeal. At the moment appeals are taking over a year to be finalised so a person in this situation can expect to be outside the UK for over a year whilst going through the appeals process.
Wages of irregular migrants can now be seized by the government as proceeds of crime, employers can now face jail for employing irregular migrants and the migrants can also be jailed for working illegally. Landlords can also face jail for letting out properties to people who do not have the right to live in the UK. This is a step further to the measures introduced by the Immigration Act 2014 which imposed fines on employers and landlords.
As lawyers we will be campaigning for justice and better rights for migrants but in the meantime, people who are affected have to arrange their affairs wisely.
The Act also makes it compulsory for people in customer-facing roles to speak good English and it also ends the support for failed asylum seekers.
On a positive note however, there will be judicial oversight on the detention of pregnant women and, generally, on the powers of the Home Office to detain people. Pregnant women cannot be detained for more than 72 hours.
The courts will automatically review the detention of people who have been held for four months continuously. This is a welcome development that will hopefully put an end to the many cases of unlawful detention. The new Act can be viewed on the government’s www.gov.uk website.
Please note that this article does not seek to provide direct legal advice in people’s individual cases. If you are affected by the Immigration reforms in the UK, please seek advice from a professional from ICS Legal
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