The drastic changes made to the appeals system by the Immigration Act 2014 have now been fully implemented so that there are now only three types of decisions made by the Home Office which may be appealed:
- A refusal of a protection claim, namely a claim for refugee or humanitarian protection status;
- A refusal of a human rights claim; and
- Revocation of protection status, namely refugee or humanitarian protection status.
The refusal of all other types of applications and other immigration decisions such as a removal decision or curtailment of leave will not give rise to a right of appeal. Such decisions may be subject to the new Administrative Review procedure (see earlier post on withdrawal of student appeals in October 2014) or alternatively may have to be challenged by way of Judicial Review proceedings. In addition, where the Home Office certifies a person’s claim, even the refusal of a protection or human rights claim may not give rise to a right of appeal or give an appeal which can only be exercised once you have left the UK.
It can thus immediately be seen that the Home Office is only allowing appeals against its decision in circumstances where it absolutely has to give a right of appeal, namely those applications arising out of its international obligations eg asylum and human rights. In decisions which are purely domestic, eg allowing people to come to the United Kingdom to study or work, the United Kingdom has no international obligation to give a right of appeal and so such applications will only now be appealable if they also raise a human rights or protection claim. Here we will consider the new appeals regime and the changes made to the Tribunal’s ability to consider new matters raised at the appeal stage.
Cases which still carry a right of appeal
- Protection claims
The definition of a protection claim is one where the applicant alleges that his removal from the United Kingdom will breach the United Kingdom’s obligations under the Refugee Convention or the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection. This appeal right therefore applies to people seeking asylum in the UK or where they don’t qualify for asylum but allege that they will nevertheless suffer serious harm in their own country.
- Human Rights claims
The definition of a human rights claim is one where the applicant alleges that to remove him from the UK, require him to leave the UK, or to refuse him entry into the UK, would be unlawful under section 6 of the Human Right Act 1998 (which gives effect to the European Convention of Human Rights). Such claims will by their nature generally be made outside of the Immigration Rules but in addition there are some applications under the Immigration Rules which will be considered to implicitly raise human rights and be treated as a human rights claim eg under the family rules in Appendix FM and under the long residence rules under paragraph 276ADE.
- Revocation of protection status
A person has protection status if they have permission to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection (usually 5 years permission to remain). Where the Home Office decides to revoke a person’s protection status there is a right of appeal but where protection status simply expires and is not renewed that is not a revocation and so there is no right of appeal. However, where a person makes an application to renew their protection status, that is a protection claim which if refused will give rise to a right of appeal.
The new regime also sets out whether a person can bring an appeal from within or outside of the United Kingdom. Where the person was outside the United Kingdom when they made the claim, they must appeal from outside the United Kingdom. Where the person was inside the United Kingdom when they made a claim they may appeal from within the UK unless the claim has been certified.
New Matters Raised in an Appeal
There is a general and ongoing duty on all applicants to state all of the reasons they have for remaining in the United Kingdom. The Home Office enforces this duty by serving a s120 Notice on applicants making a protection or human rights claim, an application to remain in the United Kingdom or are being deported or removed from the United Kingdom requiring them to state any additional reasons to remain in the United Kingdom which they may not already have disclosed. This is to enable the Home Office to consider all reasons the person has to remain in the United Kingdom and to prevent any last minute issues being raised to, for example, delay removal from the United Kingdom. Anyone who doesn’t comply with this duty but later seeks to make a claim based on an issue which could have been raised earlier may find that their claim is certified so as to prevent a right of appeal against a refusal of the claim.
This has now been taken one step further to prevent new issues being raised at the appeal stage of a case which have not already been considered by the Home Office. In general, a Tribunal Judge hearing an appeal can consider evidence about any matter which it thinks is relevant to the substance of the appeal before it, including matters arising after the date of decision. However, under the new appeals regime, the Tribunal must not consider a matter raised at the appeal stage which amounts to a new ground of appeal unless the Home Office consents to this being done. A new matter is therefore one which
(i) constitutes a human rights or protection claim, and
(ii) the Home Office has not previously considered the matter.
Examples of what may constitute new matters are
(i) A protection claim has been made, including a claim under Article 3 of the ECHR, but the appellant is now claiming removal would be (or would also be) a breach of Article 8 based on his family life;
(ii) A human rights claim based on family life has been made, but the appellant is now claiming (or also claiming) that he is a refugee;
(iii) A human rights claim has been made based on private life under Article 8, but the appellant is now claiming (or also claiming) that removal would be a breach of Article 8 on the basis of family life because the appellant has now married a British Citizen.
A new matter does not include additional facts or evidence of the original claim or where the passage of time means that the there are new factors relating to the original claim which must now be considered eg more children have been born in a claim based on family life with a child. Such matters would not require the consent of the Home Office before the Tribunal could consider them in an appeal.
Consequences of raising a new matter at the appeal stage
Raising a new matter late in the claim, at the appeal stage following refusal of the original claim, may have the effect of delaying the appeal proceedings as the Home Office is likely to object to the new matter being considered by the Tribunal until the Home Office has had the opportunity to consider it. This may mean that the Home Office requests an adjournment of the appeal hearing to consider the matter, that it may refuse to give consent for the Tribunal to consider the new matter so that it does not form part of the appeal or withdraw the decision which is being appealed altogether so that the appeal cannot proceed in any form.
If the Tribunal considers a new matter for which the Home Office has not given consent, it may be acting outside of its jurisdiction and so any decision it makes on the issue may not be safe as the Home Office are likely to seek to appeal against it. Where the Tribunal is prevented from considering a new matter as the Home Office has refused to consent, an applicant may have to raise the matter in a subsequent application to the Home Office and so run the risk of the claim being certified to prevent a further right of appeal.
Arguments before the Tribunal are likely to be based around whether the issue raised is in fact a new matter or one which relates to the claim that has already been put forward. This means that it is important that the initial claim put forward is accurately and fully presented to cover all the facts and evidence available at that time. Where an applicant’s circumstances subsequently change, it is important to put forward the change of circumstances as soon as possible so that the Home Office has the opportunity to consider all matters. It is equally important that any grounds of appeal against a refusal decision are also accurately drafted so that the Tribunal can properly identify the claim initially put forward and the reasons why the refusal is being appealed. Poorly drafted applications and subsequent grounds of appeal may appear to be making a new claim to which the Home Office will refuse to consent whereas in fact they are only raising issues which relate to the original claim and so do not require the Home Office to consent to the Tribunal considering them.
Now more than previously, therefore, it is important to obtain good quality legal advice and representation to present your initial claim to the Home Office and to prepare and run your appeal before the Tribunal. This will prevent unnecessary delays in your appeal being determined or having to lodge a second claim raising a new matter which may then be certified so that you cannot appeal against it.