Apart from kicking off a raft of other twisted provisions, the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711, “the Order”) makes provision for partial commencement of the not so eagerly awaited appeals provisions of the Immigration Act 2014 (“the Act”). To that end, 20 October 2014 was the designated date for legal cutover. Arousing emotions amongst human rights lawyers, like the Act, the Order was instantaneously denounced as a dog’s breakfast. Under section 15 (right of appeal to first-tier tribunal), the Act reduces appeal rights arising from immigration decisions (refusals of entry, refusals to vary leave to enter and remain, decisions to remove and deport etc) enumerated in section 82 (right of appeal: general) of the Nationality, Immigration and Asylum Act 2002 (“NIAA”) and the two further rights of appeal (against decisions to reject an asylum claim or revoke refugee status in certain instances) contained in section 83 (asylum claim: appeal) and section 83A (appeal: variation of limited leave) of the NIAA.
As proudly announced by the Immigration Minister James Brokenshire, following legal cutover to the appeals provisions set out in the Act, criminals are precluded from mounting appeals before deportation unless they face a real risk of serious irreversible harm. Equally, as regards students, new immigration rules have been introduced and provide a system of administrative review enabling casework errors to be corrected expeditiously: these “reforms” will be advantageous for meritorious students who currently have to spend time and money to win their appeals and, together with the new single power of removal, will simultaneously facilitate the quick removal of bad students; the overall result will be beneficial to the UK’s universities. (Or so goes the official line.)
Under the Act, a right of appeal is generated only where a human rights claim is refused, a protection claim (i.e. a claim for refugee or humanitarian protection status) is refused or protection status is revoked. But the switch to the new provisions is far from perfect. To be sure, transition to the Act is proving to be a long-winded (or “phased”) process. The operation of two separate legislative regimes also undermines the belief (which we have been force-fed by the executive) that the Act is the blueprint for progress in a degenerative immigration system.
Consisting of 15 articles, the first eight of which are in the first part and the remaining seven in second part, the Order is divided into part 1 (introduction and days appointed) and part 2 (transitional and saving provisions and repeals). Subject to the saving mechanism in articles 9, 10 and 11, by article 2 legal cutover to several provisions, section 15 included, of the Act occurred on 20 October 2014. Although this post only considers the appeals provisions, article 1(2)(e) of the Order describes the following provisions as “the saved provisions”:
- section 10 (removal of certain persons unlawfully in the UK) of the Immigration and Asylum Act 1999;
- section 62 (detention by secretary of state), section 72 (serious criminal) and section 76 (revocation of leave to enter or remain), and part 5 (immigration and asylum appeals) of the 2002 Act;
- section 8(7) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004;
- section 47 (removal: persons with statutorily extended leave) of the Immigration, Asylum and Nationality Act 2006; and
- paragraph 19(10) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, as in force immediately prior to 20 October 2014.
Moreover, transitional and saving provisions in relation to “the relevant provisions” – various bits of the Act including section 15 – are set out in the Order. The interplay between articles 9, 10 and 11 is such that the “saved provisions” continue to apply, and the relevant provisions do not apply, other than so far as they relate to the persons in articles 10 and 11, unless article 11(2) and (3) applies.
“P1”, as mentioned in article 10, means a person (or their family members) who on or after legal cutover becomes a foreign criminal within the meaning of section 117D(2) of the NIAA. Similarly, “P2”, as contemplated by article 11, refers to persons who on or after legal cutover make an in-country application for leave to remain as a Tier 4 migrant or as their family member. The result of the saving is that, at legal cutover, only the persons contemplated by articles 10 and 11 became subject to the new appeals regime under section 15(2) of the Act which inserted the new section 82(2) of the NIAA (which affords a right of appeal to the FtT in cases where there is a refusal of a protection or human rights claim or the revocation of protection status).
By article 11(2), the relevant provisions do not apply, and the saved provisions are preserved, where having made a Tier 4 application, P2 proceeds to reapply for leave to enter or for leave to remain outside Tier 4 and that new application is not a protection claim or a human rights claim that (save at a port) is made within the UK. Furthermore, article 11(3) stipulates that where article 11(2) is engaged, the saved provisions are of consequence in cases in respect of which an immigration decision is made under sections 82(2), 83 or 83A – as in force at legal cutover – in relation to P2. A transitional provision set out in article 11(4) stipulates that where a right of appeal exists, or an appeal is brought, under section 82(1) of NIAA before legal cutover, the reference to a “decision” in section 96(1)(a) should be read as a reference to an “immigration decision” so that the previous right of appeal will apply in relation to section 96(1).
Pointing out that it has historically been the case that identically numbered provisions operating simultaneously creates unnecessary problems in an existing minefield of madness, in my view Colin Yeo has rightly argued (and even the anti-immigration lobby would have to agree) that it is counterproductive to:
be lumping foreign students together with foreign criminals and depriving them of procedural protection in the same way …
It is indeed excessive, perhaps even oppressive, to operate such unnecessarily intricate and deliberately misleading legislative machinery in an already overloaded system which, from the reasonable person’s perspective, seems to be approaching meltdown.
Given that reading the primary sources – i.e. the Act or allied secondary legislation which implements (or perhaps does not implement) it – can be testing, to cope with the chaos the Home Office has published (for reference by “anyone who needs to know about appeals”) Appeals Guidance and associated documents.
Because Tier 4 migrants and their family members will no longer enjoy rights of appeal, Statement of Changes in the Immigration Rules HC 693 has instead at legal cutover conferred upon them a right to an administrative review which is contained in Appendix AR of the Immigration Rules. In that regard, paragraph AR3.2 of Appendix AR mimics the Order in describing those persons who are eligible for administrative review. The Home Office has explained that, when the application of section 15 is widened to “include further categories of persons in future commencement orders, paragraph AR3.2 will be amended accordingly.”
A full list – for example, the original decision maker applied the wrong immigration rules, the original decision maker applied the immigration rules incorrectly and so forth – of case working errors is contained in paragraph AR3.4 and applicants are expected to identify “which of these they believe apply to their decision and to explain why.”
Anyone who is remotely familiar with administrative review decisions will tell you that the problem with this mechanism is that a new decision maker (say the Entry Clearance Manager looking at the decision of the Entry Clearance Officer) simply rubberstamps the old decision. So it is hard to see why this will be any different when this, ostensibly financially desirable, approach is adopted to in-country refusals (the ultimate question, which the government prefers to ignore, of course, is What Price Justice?).
Anyway, since the principle of justice is subordinate to the spectre of swelling migration, importantly under paragraph AR2.2, the potential results of administrative review are that (i) the original decision under review may be withdrawn in which case the application fee will be refunded and leave to remain may be granted and (ii) in cases where the original decision remains in force, the decision may continue to stand as it is, have a reason for refusal withdrawn or have additional reasons given.
On the one hand, the administrative review process allows one review per eligible decision. However, on the other hand, where further reasons for refusal are provided, it is possible to apply for further administrative review. Section 3C of the Immigration Act 1971 is amended by paragraph 21 of Schedule 9 of the Act with the result that applicants’ statutory leave remains intact while administrative review is pending (and the Home Office will not seek to remove the applicant while the review is pending).