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”:
- 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.
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.