Immigration Act 2014: New Appeals Regime Rolled Out

Further implementation of the abolition of appeal rights under the Immigration Act 2014 (“the Act”) arrived earlier this month in the form of the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (“the Order”). The implementing legislation should have been simple because it affects people who do not know English as a first language. But instead its intricacies exceed the complexities of legislation related to the Treasury. On the lighter side, as disclosed by the title, the Order is the fourth commencement order produced pursuant to the Act. The effect of the Order is to kill off the right of appeal for certain persons who have been refused further leave to remain under the points-based system, where the application is made on or after 2 March 2015. With some exceptions, the Order also removes the right of appeal for all decisions on applications for leave to remain under the rules from 6 April 2015. The Immigration Rules will allow affected persons to apply for an administrative review as provided for in statement of changes HC1025 (see here).

The Order is composed of three parts and the modifications to the appeals structure are reflected in part 3. Article 2 of the Order, provides that more than a dozen provisions of the Act relating to marriage and civil partnership will enter into force this month. Moreover, article 3 relates to biometric information and article 5 contains a transitional provision about the solemnisation of a proposed marriage in the Anglican Church. The Order observes that the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (“the Commencement Order”, see here) got the ball rolling in relation to provisions relating to removal and appeals.

Yet, to create further confusion in an already entropic environment, the Commencement Order also contained saving provisions that imposed limitations on the circumstances in which the provisions relating to appeals would have effect. Under Part 3, the Order contains amendments to the Commencement Order. The Order envisages that the amendments will take effect in two stages, expanding the circumstances in which the provisions relating to appeals have effect.

In order to implement the first stage of the expansion, a new article 11(1A) is inserted into the Commencement Order by article 7 of the Order with the result that the provisions relating to appeals additionally take effect in relation to persons who apply for leave to remain as Tier 1, Tier 2 or a Tier 5 Migrants, or as their family member. Such persons will also be subject to the saving provisions set out in article 11(2) and (3) of the Commencement Order. Article 7 of the Order and the changes associated with it entered into force on 2 March 2015.

By article 11(2) of the Commencement Order, the provisions relating to removal and appeals did not apply, and the saved provisions were preserved, where having made a Tier 4 application, a person proceeded to reapply for leave to enter or for leave to remain outside Tier 4 and that new application was not a protection claim or a human rights claim that (except at port) was made within the UK. Furthermore, article 11(3) had stipulated that where article 11(2) was engaged, the saved provisions were of consequence in cases in respect of which an immigration decision was made under sections 82(2), 83 or 83A – as in force on 20 October 2014 – in relation to a person. Notably, article 1(2)(e) of the Commencement Order, designated the following provisions as “the saved provisions”:

Article 8 of the Order implements the second phase of the new system by disengaging the saved provisions in articles 9, 10 and 11 of the Commencement Order and the effect is that the provisions relating to appeals will have general effect from 6 April 2015. On the other hand, maybe just to simplify things, article 8 of the Order additionally introduces a new article 9 into the Commencement Order which contains some saving provisions for certain types of decision, or application, which are made prior to 6 April 2015 with the result that the saved provisions will continue to have effect so far as they relate to the following decisions made on or after 6 April 2015:

  • Refusals of applications to vary leave to enter or remain made before 20 October 2014 where the person was seeking leave to remain as a Tier 4 Migrant or as their family member and where the result of that decision is that the applicant has no leave to enter or remain.
  • Refusals of applications to vary leave to enter or remain made before 2 March 2015 where the person was seeking leave to remain as a Tier 1, Tier 2 or Tier 5 Migrant or as their family member and where the result of that decision is that the applicant has no leave to enter or remain.
  • And so far as the decision is not covered by the above situations, refusals of applications made before 6 April 2015 where that decision falls into one of four specified categories, unless the decision was a refusal of an asylum, protection or human rights claim.

The draftsman of the Order also explains that the saved provisions will also continue to have effect to decisions made before 6 April 2015 in relation to which, immediately before 6 April 2015, an appeal could have been brought or was pending under the saved provisions.

Article 9 of the Order revokes the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014.

New rules on administrative review came into effect via HC1025 on the same day that the new appeal provisions in section 15 (Right of appeal to First-tier Tribunal) of the Immigration Act 2014 were operationalised by the Order.

Despite all the emphasis on administrative review (which is quite useless in the vast majority of cases), in everyday language all this means that there will be an increase in judicial review (that no go area in immigration law). The so-called first phase of the expansion (or “roll out”) will effect persons who on or after 2 March 2015 apply for leave to remain under Tier 1, Tier 2 or Tier 5 of the points-based system – the scheme has been in place for persons making Tier 4 applications on or after 20 October 2014 when the Commencement Order was brought into action.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appeals, Article 8, Immigration Act 2014, Immigration Rules, PBS and tagged , , . Bookmark the permalink.

20 Responses to Immigration Act 2014: New Appeals Regime Rolled Out

  1. Darren Stevenson says:

    Good post- one query I have is that given the statement of changes appears to include pretty much all family or article 8 connected immigration rules applications as ‘implicit’ human rights claims (and therefore no appropriate for administrative review), it appears that all of these cases will enjoy appeal rights anyway? Its really just a PBS restriction?

  2. Darren Stevenson says:

    As far as I could see commencement order 4 relies on s113 of the 2002 act to define ‘human rights claim’ which is the old definition, but within the explanatory note to the most recent statement of changes it indicates that all part 8/ appendix fm applications are ‘implicit human rights claims’ and therefore will have an appeal? So its not necessarily the effect that all immigration rules applications made after 6th April 2015 will not enjoy appeal rights?

    am I missing something?

    http://www.mcgillandco.co.uk/Blog/2015/03/04/human-rights-appeals-and-the-new-2014-act-perhaps-an-appeal-right-after-all/

    • mkp says:

      I read your post earlier and I do really hope that you’re right! But then, does that mean that, in relation to the same refusal, AR for the refusal on the rules and “implicit” human rights appeal to the FtT? That would be a capricious result no doubt. What backlogs such a multiplicity of action will create. An efficient new system indeed! Slap on a couple of JRs too…

  3. Darren Stevenson says:

    That’s the curious thing- it appears to suggest there is no AR for a refusal under the rules for certain categories and straight to appeal but only on HR grounds! Have a look at the statement of changes for admin review and the explanatory note

    • mkp says:

      I posted on it here:
      https://asadakhan.wordpress.com/2015/03/12/kaleidoscopic-changes-in-immigration-rules-continue/
      Administrative review will not be available in respect of refusal of entry clearance or a decision on an application for leave to remain in relation to (a) human rights claims – where an appeal is the appropriate remedy; (b) visitors and short term students – who should submit a fresh application because this costs the same (£83) as an administrative review; and (c) those given notice of liability for removal – in order to preclude the creation of “barriers to removal”, any further applications made by them will not attract administrative review.

  4. mkp says:

    The thing is Darren, not everyone is a ‘sure friend’ like you and McGill. Not everyone will be clean and honest and it is foolish to expect it.

    Man, if I made a list of solicitors who have professional conduct issues (most of them Pakistani, Indian and Nigerian), it would run for pages!! People write me long messages about how they got ripped off. Their solicitors lied and told them that they would “win” and took thousands of pounds. I think that they will mislead clients and define the ‘new’ system more than the Home Office. Honest folks can just keep their eyes peeled to see what happens next … I’m talking about people who are Big in immigration law and have thousands of cases. Perhaps that, i.e. the volume of work done, is their failure in client care.

  5. Darren Stevenson says:

    Yes- I am sure I read an article about that, the increasing complexity of the law just make it easier to hide bad advice and competence. Thanks for engaging with me, its tough sometimes trying to make sense of these changes. I was surprised that they appear to be widening the definition of human rights claim to include what are essentially immigration rules applications, but then forcing reliance on appellate grounds which only cover Human Rights. Bizarre.

    • mkp says:

      Sure, pleasure to engage. To take the fee money they, dodgy solicitors, just lie and disappear leaving their clients in the lurch.

      I was trying to comment on your blog but was unsuccessful. Will try again …

    • mkp says:

      Does this cover entry clearance as well? The definition in article 11 of the No. 3 TSP Order? Hmm …

      Article 11(5) In this article—

      (a)“human rights claim” means—

      (i)a claim made by a person to the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Convention); or

      (ii)an application for leave to remain made under paragraph 276ADE of, or Appendix FM to, the immigration rules;

  6. Darren Stevenson says:

    yes- that’s what caught my eye initially- its the first time I have seen ‘human rights claim’ as defined as anything other than breach of rights by removal from the UK. But the thing is that particular definitional part of the 3rd order is replaced by the 4th order and not replaced with anything. so the definition of ‘human rights claim’ is as s113 of the 2002 act. The only reference to certain rules type applications being ‘human rights claims’ appears to be within the explanatory note to HC1025.

    Very esoteric, but seems quite an important issue to be so hard to detect. Almost as if they are hiding it.

  7. Darren Stevenson says:

    Yes- that will be interesting to see. Anyway, I think reports of the death of appeals might be overstated.

  8. mkp says:

    358. In Appendix AR, delete paragraph AR3.2 and substitute:
    “AR3.2 Subject to paragraph AR3.4, an eligible decision is:
    (a) A decision on an application made on or after 20th October 2014 for leave to remain as:
    (i) a Tier 4 Migrant under the Points Based System; or
    (ii) the partner of a Tier 4 Migrant under paragraph 319C of the Immigration Rules; or
    (iii) the child of a Tier 4 Migrant under paragraph 319H of the Immigration Rules.
    (b) A decision on an application made on or after 2nd March 2015 for leave to remain, as:
    (i) a Tier 1, 2 or 5 Migrant under the Points Based System; or
    (ii) the partner of a Tier 1, 2 or 5 Migrant under paragraphs 319C or 319E of the Immigration Rules; or
    (iii) the child of a Tier 1, 2 or 5 Migrant under paragraphs 319H or 319J of the Immigration Rules.
    (c) A decision on an application for leave to remain made under these Rules on or after 6th April 2015 unless it is an application as a visitor, or where an application or human rights claim is made under:
    (i) Paragraph 276B (long residence);
    (ii) Paragraphs 276ADE(1) or 276DE (private life);
    (iii) Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
    (iv) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
    (v) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules, or under paragraph 284, 287, 295D or 295G where the sponsor was granted settlement as a Points Based System Migrant) or has refugee or humanitarian protection status in the UK;
    (vi) Part 11 of these Rules (asylum);
    (vii) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
    (viii) Appendix FM (family members), but not where an application is made under section BPILR (bereavement) or section DVILR (domestic violence),
    in which case the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.

    AR5.2 (a) An eligible decision is a refusal of an application for entry clearance made on or after 6th April 2015 under the Rules unless it is an application under Part 3 of these Rules (short-term students) or as a visitor, or where an application or human rights claim is made under:
    (i) Paragraphs 276R and 276X (partner or child of a member of HM Forces);
    (ii) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
    (iii) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules) or has refugee or humanitarian protection status in the UK;
    (iv) Part 11 of these Rules (asylum);
    (v) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
    (vi) Appendix FM (family members),

    in which case the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.

  9. Darren Stevenson says:

    that’s from the amendment to the AR provisions? I think the thing I am driving at is the categorisation of an application under the immigration rules as a human rights claim. Certainly there may be ultimately human rights considerations and the rules are intended to be HR compliant, but this means if you have a financial discrepancy as a reason for refusal under Appendix FM- your remedy is an HR appeal? What about people who are just trying to satisfy the immigration rules and who are not (at this stage) making a human rights claim as we understand it under s113

    we spent so long at the tribunal traditionally delimiting immigration rules arguments from HR arguments it seems crazy to move to leave the sole basis of appeal as HR grounds.

    • mkp says:

      That is from HC1025 in the amended AR provisions. The entry clearance guidance in Mostafa would teach us that the rules, as in your example, are the steering wheel on Article 8? “This is because, as is explained below, the ability to satisfy the rules illuminates the proportionality of the decision”

  10. Darren Stevenson says:

    Yes Mostafa appears to be a very well timed case. I have always thought that the rules must be relevant to proportionality, despite the cold water placed on that (to an extent) by Patel at the UKSC. With that principle it seems, speculating, that in many cases we will just be arguing the 3rd stage of Razgar at the tribunal anyway, in the context of the decision being unlawful because the rules were in fact met, or were close to being met

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s