Immigration Act 2014€¦ · section 82 of the Nationality, Immigration and Asylum Act 2002, albeit on human rights or refugee grounds only. Wave One: from 20 October 2014 Section

Immigration Act 2014

A short guide for immigration practitioners

by Colin Yeo2nd edition

www.freemovement.org.uk

(c) Colin Yeo 2015

All rights reserved. Copying, circulation not for personal use and printing prohibited without written permission. Quite a lot of effort went into producing these materials: please report breach of copyright.

2nd edition

Image credits

Cover: by ukhomeoffice, on Flickr

Cedars: by ukhomeoffice, on Flickr

Thumbprint: image courtesy of Ambro / FreeDigitalPhotos.net

Barbed wire and fence: by Dan Gregory, on Flickr

European Court of Human Rights: by Dominik Kreutz, on Flickr

Gear stick: by coffee bee, on Flickr

Wedding rings: by M.G. Kafkas, on Flickr

Pound coins: by William Warby, on Flickr

http://freedigitalphotos.net/

https://www.flickr.com/photos/coffee_bee/4171940121

CONTENTS

Introduction 6

Commencement 9

Summary 10 Wave One: from 20 October 2014 10 Wave Two: from 2 March 2015 11 Wave Three: from 6 April 2015 12 Existing judicial review applications 16

Part 1: Enforcement and removal 17

Section 1: new removal power 17 What is the effect of the new removal power? 17 To whom does the new removal power apply? 19 Relevant text 20

Section 2: grace period 23 Section 3: Independent Family Returns Panel 23 Section 4: enforcement powers 24 Section 5: safeguards on detention of children 25 Section 6: Cedars family pre departure accommodation 26 Section 7: immigration bail 27 Sections 8 and 10-14: biometrics 29 Section 9: detention powers 31

Part 2: Appeals 32

Section 15: rights and grounds of appeal 32 Commencement 32 Rights and grounds of appeal 33 Appeals in EU rights cases 38 Importance of making a human rights claim 39 Importance of a human rights decision 40 What issues can be argued in a human rights appeal? 41 Can new matters be raised at appeal? 44 Duty to keep the Home Office informed 45 Administrative Review 46 Section 3C and extension of leave 49 Analysis of impact 51

Choice of remedy: choose wisely 53 Section 16: review of administrative review 56 Section 17: venue of appeals 57

Ordinary appeals 57 Deportation appeals 59 Origins of the serious irreversible harm test 61 Home Office policy 63 Commencement 65 Challenges to a section 94B certificate 67

Section 18: SIAC 69 Section 19: statutory human rights considerations 70

Commencement 70 Having regard 71 Considerations in all cases 73 Considerations in deportation cases 76 Conflict between the Act and the Immigration Rules 79

Part 3: Access to services 82

Chapter 1: residential tenancies 83 Chapter 2: NHS, banks and driving licences 84

NHS health charge 84 Banks and building societies 86 Driving licences 86

Part 4: Marriage and civil partnership 88

What has changed about getting married? 88 Who is affected? 89 What is a “sham marriage”? 90 Further reading 91

Part 5: OISC scheme 92

Part 6: Citizenship and other matters 93

Section 65: end to gender bias 93 Context 93 New provisions 94

Section 66: Citizenship deprivation 96 What has changed? 96 Analysis 99

Sections 68, 69 and 70: immigration and nationality fees 100 Section 71: duty towards children 101

Part 7: Administrative matters 102

Schedules 103

Commencement Table 104

INTRODUCTION

The Immigration Act 2014 is already having a profound impact on the lives of undocumented migrants and on anyone suspected of being undocumented: it is likely that the ethnic minority community in the UK will feel the effects of enhanced in-country immigration control measures as employers, universities and colleges, landlords, marriage registrars, banks, building societies, doctors and the DVLA attempt to implement their legal duties to single out and discriminate against undocumented migrants.

The Act and the hostile environment it seeks to create will affect everyone, though. In theory, any person renting a private property in future will need to prove their immigration status to their landlord or agent. Any person opening a bank account will need to prove their immigration status as well as their identity. The notice period for all marriages will be extended from 15 days to 28 days.

For immigration lawyers the effects are profound. The Government has predicted a 67% fall in the number of immigration appeals. This may be an overestimate and it may well be counterbalanced to some extent by an increase in applications for judicial review, but it will nonetheless have an important impact on the everyday work of lawyers. These appeals provisions took full effect on 6 April 2015. And the major changes are not confined only to appeal rights.

This ebook runs through the Act section by section, providing an explanation of the changes made, setting out amended versions of relevant legal provisions and explaining commencement provisions. Where relevant links to

Page �6 (c) Colin Yeo 2015

legislation, cases and Home Office policy documents have been included in the text.

The first part examines the new removal power under the new section 10 of the 1999 Act and its implications, before moving on to removal and detention involving children and families and new provisions on enforcement, bail, biometrics and detention.

The second part looks at appeals. I examine and set out the new rights and grounds of appeal, the problems that arise and analyse how the human rights jurisdiction might be used to argue that cases that would previously have succeeded under the abolished ‘not in accordance with the immigration rules’ or on ‘not in accordance with the law’ grounds. This section also looks at the expansion of administrative review, the new provisions on in and out of country appeals, on out of country appeals against deportation and at the controversial new statutory Article 8 considerations imposed on judges.

The third part looks at the new duties on private landlords, banks and building societies and driving licenses as well as the future NHS charge or levy.

The fourth part examines the new provisions on marriage and civil partnership and the scheme for reporting of sham marriages, which the Home Office estimates will lead to 35,000 referrals to the Home Office per year and 6,000 investigations.

The fifth part briefly examines the new powers for the Office of the Immigration Services Commissioner and changes to the OISC scheme.

The sixth part looks in particular at changes to citizenship laws, some positive and some less so, as well as new provisions on the future setting of immigration fees.


I am grateful for the assistance of Alison Harvey in getting to grips with some of the citizenship provisions. Any errors are mine, however!

I hope the ebook is useful and interesting. If you would like to claim CPD hours for reading this material, head over to www.freemovement.org.uk and sign up as a member. Membership starts at £50 per person for groups of 10 and gives access to a growing suite of immigration training resources.

Do get in touch if you have comments or suggestions.

April 2015


http://www.freemovement.org.uk

COMMENCEMENT

From a lawyer’s perspective, the most important changes wrought by the Immigration Act 2014 are to appeal rights and removal powers. These changes have been brought into effect in parallel, at the same time. The way in which they have been brought into effect (“commenced” in the language of the law) has been exceedingly complex, however. This first section of the ebook addresses commencement and transitional arrangements for appeals and removals before going on to examine the substance of the changes.

There have been three waves of commencement for these provisions, beginning on 20 October 2014 for “foreign criminals” as defined in the commencement orders and for certain Tier 4 students, then for all Points Based System migrants from 2 March 2015, then generally in all cases from 6 April 2015 but with transitional arrangements.

It is hard to believe that a more complex way of drafting the commencement orders could possibly have been devised.

The full list of commencement orders is available for reference as follows:

• Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820)

• Immigration Act 2014 (Commencement No. 2) Order 2014 (SI 2014/1943)

• Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711)

• Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371)



http://www.legislation.gov.uk/uksi/2014/1820/contents/made


http://www.legislation.gov.uk/uksi/2014/2771/made



Summary The commencement of the new appeals regime and removal powers have been in three waves. In short, the waves were:

1. Foreign criminals and Tier 4 applications (including family members) made on or after 20 October 2014

2. Tier 1, 2 and 5 applications (including family members) made on or after 2 March 2015

3. Against any decision on or after 6 April 2015 but, other than the above exceptions, not where the application was made prior to 6 April 2015, unless the decision on or after 6 April 2015 includes an asylum or human rights decision.

At the same time as the third wave removed traditional full rights of appeal, the system of Administrative Review under the Immigration Rules was expanded. This is covered in the ebook and will the subject of another blog post later on. It is useful to note that Administrative Review was not expanded to cover short term students, visitors, partners or children of members of the Armed Forces and some Appendix Armed Forces decisions, family members under Part 8 or Appendix FM, asylum decisions under Part 11 and some others. All these types of applicant should if refused and if there are grounds to do so pursue a right of appeal under the new amended section 82 of the Nationality, Immigration and Asylum Act 2002, albeit on human rights or refugee grounds only.

Wave One: from 20 October 2014 Section 1 was brought into effect for some migrants from 20 October 2014 by the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711). The way in which Commencement Order No 3 operated was at Article 2 to commence several sections of the Act, including sections 1 and 15 on removals and rights of appeal, on 20



October 2014 but, importantly, “subject to the saving provision in articles 9, 10 and 11”.

The saving provisions were in fact very extensive, though, and in this wave of commencement there were in reality only two groups of migrants affected.

The first were foreign criminals who became foreign criminals within the definition of the amended section 117D(2) of the Nationality, Immigration and Asylum Act 2002 on or after 20 October 2014. This definition is examined below in relation to section 19 of the Immigration Act 2014. The power also applied to their family members who are liable to deportation.

The second group were students who made a Tier 4 application to extend leave to remain on or after 20 October 2014. It also applied to their dependent partners and children who had also made an application to extend leave to remain on or after 20 October 2014.

However, unless the student makes an international protection or human rights claim, students who having made a Tier 4 application on or after 20 October 2014 but then make a different sort of application, whether from inside the UK or outside, become exempt from the new section 10 of the 1999 Act again and the old version applies once more.

Wave Two: from 2 March 2015 The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371) sets out the commencement of waves two and three.

Wave two began on 2 March 2015. Article 7 of the order amends Commencement Order No. 3 to add into the groups affected those who make an application on or after as a Tier 1, Tier 2 or Tier 5 migrant and their partners and children; Tier 4 migrants remain “commenced” so this brings all Points Based System migrants within the new regime where an application is



made on or after 2 March 2015 (and for applications on or after 20 October 2014 for Tier 4 migrants).

The same “hokey cokey” in-out provisions of Commencement Order No. 3 applied during the limited currency of wave two, i.e. the regime would be disapplied if a different sort of application was later made. This is unlikely, though, given that wave three began shortly afterwards and had general effect.

Wave Three: from 6 April 2015 Article 8 of Commencement Order No. 4 took effect on 6 April 2015. This again amends Commencement Order No. 3, amending even the amendments wrought as of 2 March 2015.

The saving provisions that limited commencement only to Tier 4 for applications on or after 20 October 2014 then also Tiers 1, 2 and 5 for applications on or after 2 March 2015 are completely replaced by new much more time limited saving provisions for pre-existing applications. These are addressed over the following pages with examples.

Essentially, the new appeals regime is commenced for decisions made on all applications on or after 6 April 2015 and for some applications made before that, in line with the previous versions of the Commencement Orders.


(i) Where an application for Tier 4 leave to remain application (including family members) has already been made before 20 October 2014 and a refusal decision is made on or after 6 April 2015 which leaves the person with no leave the old regime is preserved (amended Article 9(a) of the No. 3 Order, wrought by Article 8 of the No. 4 Order)


Examples

Arnold arrived in the UK in 2012 as a Tier 4 student. Just before his leave is due to expire, he applies to extend his leave as a Tier 4 student on 19 October 2014. There is a delay in making a decision on his application but a decision is finally made on 7 April 2015. Unfortunately, the decision is a refusal to extend leave. Arnold can appeal under the old regime on any of the grounds of appeal in the old section 84 NIAA 2002, including that the decision was not in accordance with the law and was not in accordance with immigration rules. This is because his application was before 20 October 2014.

***

Betsy also arrived in the UK in 2012 as a Tier 4 student. Just before her leave was due to expire, she applied on 21 October 2014 to extend her leave as a Tier 4 student.

If refused she will only be able to appeal under the new regime. The date of decision in her case does not matter because she falls into “wave one”. It could be before or after 6 April 2015, but either way she will only be able to appeal under the new regime, which means she would need to have made a human rights claim (which she probably did not) and appeal on human rights grounds. It is likely that she has no right of appeal at all and even if she had a right of appeal it would be on human rights grounds only, albeit she would be able to argue compliance with the law and the immigration rules as relevant issues as in the recent Mostafa case (see further below).

(ii) Where an application for Tier 1, 2 or 5 leave to remain (including family members) has already been made before 2 March 2015 and a refusal decision is made on or after 6 April 2015 which leaves the person with no leave the old regime is preserved (amended Article 9(b) of the No. 3 Order, wrought by Article 8 of the No. 4 Order)


Examples

Claude applied for further leave as a Tier 1 Entrepreneur on 19 October 2014. There is a delay in making a decision while a 'genuineness' assessment is carried out. A refusal is finally issued on 7 April 2015.

Claude can appeal under the old regime. This is because the new regime was only applied to Tier 1 applications on or after 6 April 2015, so the date of decision does not matter in his case.

***

Dorothy applied for further leave as a Tier 1 Entrepreneur on 3 March 2015. Her application is refused on 5 April 2015.

The new appeal regime applies to her, because she falls within “wave two”, which applied to Tier 1 applications made on or after 6 April 2015. The date of decision does not matter in her case.

(iii) Where an application was made before 6 April 2015 and a decision is made on or after 6 April 2015 to refuse leave to enter, entry clearance, a certificate of entitlement or to refuse to vary leave which leaves the person with no leave, the old regime is preserved. However, there is an exception to this, which is where the decision is also a refusal of an asylum, protection or human rights claim, in which case the new regime applies (amended Article 9(c) of the No. 3 Order, wrought by Article 8 of the No. 4 Order)


Examples

Ernesto applies on human rights grounds for permission to remain in the UK on 1 March 2015. A decision refusing his human rights claim is made on 7 April 2015. The new appeal regime applies to him and he can only appeal on human rights grounds: if he believes that in fact he does meet the terms of the Immigration Rules (e.g. paragraph 276ADE of the rules) then this will need to be argued in the context of human rights grounds, applying Mostafa (see further below).

If his application had been refused before 6 April 2015 the old regime would have applied. If he had had no right of appeal and was one of the many left in limbo, he would now need to make a new human rights claim and hope for a new human rights decision, which may or may not have to meet the Immigration Rule paragraph 353 fresh claim test: see further below. He would be liable to pay the NHS surcharge.

***

Frederique applies for further leave to remain as a spouse under Appendix FM on 1 March 2015. A decision refusing her application is made on 7 April 2015. Because of her application date, the old appeal regime applies to her even though the decision is made on or after 6 April 2015.

However, there is some doubt about this. If Frederique's application is considered to be a "human rights claim" then the commencement order specifies that the new appeal regime applies to her. She will probably not have asserted in terms that refusal of her application would breach her human rights, but she might be deemed to have made a human rights claim and refusal of a spouse application would certainly engage human rights issues. Unfortunately, we have no way of knowing which regime applies. Either way, though, she has a right of appeal, but it may or may not be restricted to human rights grounds.

(iv) Lastly, where a decision was made before 6 April 2015 and an appeal could have been brought under the old regime or has been brought and is pending, the old regime will apply (amended Article 9(d) of the No. 3 Order, wrought by Article 8 of the No. 4 Order)

Existing judicial review applications What about a client who has an outstanding judicial review challenging refusal of a human rights claim? Many such cases in truth seek a new removal decision that would trigger a right of appeal: the applicant can never succeed with the Home Office because the Immigration Rules are not satisfied, but if the facts are strong might succeed on a right of appeal to an independent judge. The problem is that under the new regime there is no such thing as a removal decision, only a general power to remove, and anyway a decision to remove does not generate a right of appeal, only refusal of a human rights claim does that. The judicial review cannot achieve a right of appeal, it would seem.

The way forward is probably to withdraw the judicial review and to make a new human rights claim. For as long as the Upper Tribunal's determination in Waqar remains good law, the claim should address the fresh claim test at paragraph 353 of the Immigration Rules. Any new application will potentially incur the NHS surcharge, unfortunately.

Further analysis of the implications of these changes is set out below in relation to section 15 of the Immigration Act 2014.


Example

Honour applies for further leave to remain as a spouse under Appendix FM on 1 March 2015. Her application is refused on 5 April 2015 with a removal decision issued at the same time, generating with a right of appeal under the old appeal regime. The appeal is lodged on 7 April 2015. The old appeal regime applies.

PART 1: ENFORCEMENT AND REMOVAL

Section 1: new removal power Repeals and replaces section 10 of 1999 Act, completely abolishing the historic distinction between overstayers and illegal entrants, removing the need for separate removal directions to enforce removal and streamlining removal powers for family members.

What is the effect of the new removal power?

A person with no leave who is required to have it may simply be removed from the United Kingdom with no further notice or legal step being required. Related provisions apply to family members as defined (see below). If a notice of removal is served on such a family member, the notice invalidates any leave that the family member previously possessed: s.10(6).


The Home Office stated early in the passage of the Bill that it was intended that the new power be a feature of a single decision which will apply to:

• people who make applications to the Home Office for leave to remain in the UK

• people who have not made an application, but where the Home Office receives information (e.g. from a sponsor) that leads to the person’s leave being curtailed or revoked, and

• people unlawfully in the UK who are encountered by immigration officers

Essentially, this new power replaces the need for removal directions as well as doing away with the very considerable administrative problems caused by section 47 of the Immigration, Asylum and Nationality Act 2006. Indeed, section 47 is repealed by Schedule 9 paragraph 5 as it becomes redundant.


Examples

Ahmed enters the UK as a student under Tier 4 of the Points Based System. After a year, as his leave is nearing an end, he applies to extend that leave. Ahmed’s application is refused. Ahmed has no right of appeal (see below) and takes no steps to challenge the decision, and neither does he take any step to depart from the UK.

Ahmed can simply be removed from the UK if detected by the Home Office. In the past, notice of removal directions would have needed to have been served on him to effect his removal, which would ordinary have generated a right of appeal.

***

Beatrice enters the UK illegally. She lives quietly for a number of years before being detected by the Home Office in a raid on her employer.

Beatrice can simply be removed from the United Kingdom and there is no requirement on the Home Office to set removal directions that would give rise to a right of appeal.

The new provision should be seen as conferring a general power to remove rather than as a type or species of immigration decision. To put it another way, no piece of paper need be served on the individual concerned in order to effect their removal. This is reflected in Chapter 60 of the Home Office’s Enforcement Guidance and Instructions. A detained person removed under this power will usually be informed of their arrival time in the country of origin shortly before removal as a matter of courtesy only. The Home Office take the view that there is no legal need to give advance warning of removal under the new s.10 power, a position which is arguably contrary to the case of R (on the application of Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 1710 in which the Court of Appeal upheld the High Court’s decision that “no notice” removals were unlawful.

Note: At the time of writing in April 2015, the relevant parts of Chapter 60 had been suspended by the Home Office pending a legal challenge on the issue of no notice removals.

There is no right of appeal under the new appeal provisions because there is no formal decision as such under the new section 10. However, an intimation that removal is going to take place under this power, whether through service of a notice or simply by detention, might well lead a person who does possess leave or who wishes to apply for it to apply for judicial review and a declaration that he or she does in fact possess leave or to secure an injunction while making out some other basis for remaining in the UK, such as on human rights or international protection grounds.

To whom does the new removal power apply?

When fully brought into effect, the new removal power applies to any person who ‘requires leave to enter or remain in the United Kingdom but does not have it’: s.10(1). As will be seen below in the section on commencement, the


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/420056/Chapter_60_version_10.pdf

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1710.html

power was being tested on only certain groups of migrants from 20 October 2014.

The power also applies to a member of family of the person facing removal: s.10(2). Member of family is fairly widely defined to include partner, parent, adult dependent relative or child or child living in the same household where the person facing removal has care of the child: s.10(3).

The member of the family must either have leave to enter or remain on the basis of family life with the person facing removal or, in the opinion of the Secretary of State or immigration officer, if making an application for leave would not be granted leave in his or her own right but would be granted leave on the basis of family life with the person facing removal if the person facing removal themselves had leave: s.10(4).

The removal power does not apply if the family member is a British citizen or has an enforceable EU right to reside: s.10(5).

Relevant text

Those most relevant parts of the new s.10 are as follows:

10 Removal of persons unlawfully in the United Kingdom

(1) A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave to enter or remain in the United Kingdom but does not have it.

(2) Where a person (“P”) is liable to be or has been removed from the United Kingdom under subsection (1), a member of P’s family who meets the following three conditions may also be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer, provided that the Secretary of State or immigration officer has given the family member written notice of the intention to remove him or her.

(3) The first condition is that the family member is—


(a) P’s partner,

(b) P’s child, or a child living in the same household as P in circumstances where P has care of the child,

(c) in a case where P is a child, P’s parent, or

(d) an adult dependent relative of P.

(4) The second condition is that—

(a) in a case where the family member has leave to enter or remain in the United Kingdom, that leave was granted on the basis of his or her family life with P;

(b) in a case where the family member does not have leave to enter or remain in the United Kingdom, in the opinion of the Secretary of State or immigration officer the family member—

(i) would not, on making an application for such leave, be granted leave in his or her own right, but

(ii) would be granted leave on the basis of his or her family life with P, if P had leave to enter or remain.

(5) The third condition is that the family member is neither a British citizen, nor is he or she entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.

(6) A notice given to a family member under subsection (2) invalidates any leave to enter or remain in the United Kingdom previously given to the family member.

(7) For the purposes of removing a person from the United Kingdom under subsection (1) or (2), the Secretary of State or an immigration officer may give any such direction for the removal of the person as may be given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act.


…

(11) In this section “child” means a person who is under the age of 18.

The new section 10 considerably simplifies the removal process.


Section 2: grace period Inserts a new s.78A into 2002 Act to provide protection from removal where a child is to be removed and a parent or person with care of the child or a person in the child's household is also to be removed. Came into force 14 July 2014.

The new provision provides for a 28 day grace period from exhaustion of appeal rights in which actual removal is forbidden for the child and for the adult where 'if, as a result, no relevant parent or carer would remain in the United Kingdom'. Preparatory steps towards removal such as the setting of removal directions or making of a deportation order are not prohibited.

Section 3: Independent Family Returns Panel Inserts a new s.54A into the 2009 Act immediately before s.55 to provide statutory footing for the Independent Family Returns Panel ('the panel’). Came into force 14 July 2014.

The panel must be consulted by the Secretary of State 'on how best to safeguard and promote the welfare of the children of the family':

(a) in each family returns case and

(b) in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.

A 'family returns case' is defined are defined as cases where removal of a child is going to take place along with removal of a person who:

(i) is a parent of the child or has care of the child, and(ii) is living in a household in the United Kingdom with the child

There is no duty on the Secretary of State to abide by any recommendations, only to consult. Recommendations or comments could therefore be


disregarded by the Secretary of State, although that would obviously call into question whether the Secretary of State was abiding by the duty imposed by s.55 of the 2009 Act and reiterated by s.71 of this Act, which provides:

For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children).

See further section 6 below regarding the Cedars facility.

Section 4: enforcement powers Brings into effect Schedule 1 of the Act regarding enforcement powers as of 14 July 2014.

The main change is that paragraph 5 of the Schedule amends section 146 of the Immigration and Asylum Act 1999 so that the use of ‘reasonable force’ is enabled for all powers exercisable under all Immigration Acts as defined at section 67 of the Borders Act 2007. The new provision will read:

146 Use of force.

(1) An immigration officer exercising any power conferred on him by the Immigration Acts may, if necessary, use reasonable force.

(2) A person exercising a power under any of the following may if necessary use reasonable force—

(a) section 28CA, 28FA or 28FB of the 1971 Act (business premises: entry to arrest or search),

(b) section 141 or 142 of this Act, and

(c) regulations under section 144 of this Act.

Further, a new paragraph 18A to Schedule 2 to the Immigration Act 1971 is introduced with a power to search individuals for anything that might be


http://www.legislation.gov.uk/ukpga/1999/33/section/146


used to harm others or assist in escaping from custody. Intimate searches are forbidden but a power “to require P to open P’s mouth” is included.

The new schedule also includes a wider power to obtain warrants to search for documents by amending paragraph 25A of Schedule 2 of the Immigration Act 1971. This now allows for searches of property belonging to third parties on ‘reasonable grounds’. The exercise of existing powers have been criticised by the Chief Inspector of Borders and Immigration. This expansion in powers may expand the use of speculative searches.

Section 5: safeguards on detention of children As of 14 July 2014, amends Schedule 2 of the Immigration Act 1971 to provide some safeguards on detention of unaccompanied children. With some exceptions, this restricts detention of unaccompanied children to short term holding detention facilities and then only for 24 hours on certain conditions.

The conditions for detention of children in short term holding facilities are that:

(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or

(b) a decision on whether or not to give directions is likely to result in such directions and that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.

The exceptions whereby detention of children in other detention facilities is permitted are where the child is being transferred to or from a short-term holding facility or where the child is detained under the existing power under paragraph 3 of Schedule 2 of the Immigration Act 1971:


http://www.freemovement.org.uk/immigration-raids-found-to-be-unlawful-in-two-thirds-of-cases/

(3) Any person detained under paragraph 16 may be taken in the custody of a constable, or of any person acting under the authority of an immigration officer, to and from any place where his attendance is required for the purpose of ascertaining his citizenship or nationality or of making arrangements for his admission to a country or territory other than the United Kingdom, or where he is required to be for any other purpose connected with the operation of this Act.

This power is for 'examination' of passengers on arrival, so is most likely to be deployed where a person first arrives in the UK. As these are the circumstances where HMIP has repeatedly expressed concern about the detention of children, the measure is unlikely to effect much positive change.

Section 6: Cedars family pre departure accommodation Amends 1999 Act in relation to 'pre departure accommodation' (i.e. velvet gloved detention) for children and their families, putting Cedars on a statutory footing. Came into force 14 July 2014.


http://en.wikipedia.org/wiki/Cedars_(immigration_detention)

Section 7: immigration bail Restricts the right to apply for bail by amending Schedule 2 of the Immigration Act 1971 and requiring amendments to the Tribunal Procedure Rules. Came into force 14 July 2014.

Firstly, release on bail without the consent of the Secretary of State is not permitted where:

(a) directions for the removal of the person from the United Kingdom are for the time being in force, and

(b) the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.

As the law stood before the Immigration Act 2014 it would have been unusual for a judge to grant bail in such circumstances, so this change is unlikely to affect many detainees. A Home Office policy on when consent to release from detention will or will not be granted: Criminal casework: bail applications, action before and during a bail hearing or decision. The policy suggests that consent should normally be granted:

The consideration of consent will be highly fact specific and must be based on the circumstances of the individual case, including if detention remains lawful. In considering consent, significant weight should be given to the decision of the presiding judge on bail.


https://www.gov.uk/government/publications/action-before-and-during-a-bail-hearing-or-decision

The power should only be exercised in exceptional circumstances, where for example, it is considered that the judge has not correctly weighed the high risk of absconding in coming to the decision to grant bail, or given enough weight to the public protection risk (if appropriate). This is not an exhaustive list of reasons why consent may be refused.

Secondly, a new provision is inserted requiring repeat tribunal bail applications to be automatically dismissed without a hearing if made within 28 days:

Tribunal Procedure Rules must secure that, where the First-tier Tribunal has decided not to release a person on bail under paragraph 22, the Tribunal is required to dismiss without a hearing any further application by the person for release on bail (whether under paragraph 22 or otherwise) that is made during the period of 28 days starting with the date of the Tribunal’s decision, unless the person demonstrates to the Tribunal that there has been a material change in circumstances.

As can be seen, there is provision for an applicant for bail to seek to convince the tribunal that there has been a change in circumstances. However, that will need to be done in writing in the application as otherwise there will be no oral or video link hearing.

The 28 day period is most likely to affect individuals representing themselves in bail applications and will no doubt reduce what judges may misguidedly consider to be 'nuisance' applications. For long term detainees suffering from apparent Home Office inertia and inaction, the 28 day period will no doubt become a threshold for making a further bail application to test whether too long has become long enough.

When the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 were introduced on 20 October 2014, they included provision to implement the 28 day rule at paragraph 39 as follows:



(3) Where an application for release on bail is received by the Tribunal within 28 days after a Tribunal decision made at a hearing under paragraph (1) not to release the bail party on bail, the Tribunal—

(a) must determine whether the bail party has demonstrated that there has been a material change in circumstances since the decision;

(b) if the Tribunal so determines, must apply paragraph (1);

(c) otherwise, must dismiss the application without a hearing.

Sections 8 and 10-14: biometrics Increases the use of biometrics in immigration applications and enforcement and extends to British nationality naturalisation and registration applications and to EEA residence documentation applications by non EEA national family members. These sections all came into force on 14 July 2014.

Biometric information is redefined by section 12 as:

(a) information about a person’s external physical characteristics (including in particular fingerprints and features of the iris), and

(b) any other information about a person’s physical characteristics specified in an order made by the Secretary of State.


Section 8 amends s.126 of the Nationality, Immigration and Asylum Act 2002 to allow for regulations that provide for compulsory capture of biometric data for transit visas and residence documentation for non EEA family members of EEA nationals. A person with enforceable EU law rights may elect not to apply for residence documentation, in which case biometric information is not required, but many prefer to obtain the documentation as a matter of convenience and if the power is exercised will need to provide biometric information.

Section 9 allows for capture of biometric information from a person liable to detention, an expansion on the existing power to obtain biometric information from person who is actually detained.

Section 10 extends requirements for biometric information to British citizen naturalisation and registration applications and permits retention of photographs submitted as part of the application up until the issue of the person’s first passport, even once they have become a British citizen.

Section 11 amends section 7 of the Borders Act 2007 to insert a new provision allowing for disregarding or refusal of an application that is required to include a biometric immigration document but which does not.

Section 13 allows for biometric information to be taken from children below the age of 16 where the decision to require the child to provide the information has been confirmed by a chief immigration officer, and the information is provided in the presence of a person of full age who is the child’s parent or guardian, or a person who for the time being takes responsibility for the child.

Section 14 substitutes a replacement for section 8 of the UK Borders Act 2007 on use and retention of biometric information. This section concerns use of biometric information for other purposes than that for which the information was initially required.


Firstly, the new section 8 limits the retention of biometric information to ‘only if the Secretary of State thinks that it is necessary to retain it for use in connection with’:

(a) the exercise of a function by virtue of the Immigration Acts, or

(b) the exercise of a function in relation to nationality.

The range of reasons to use such biometric information now includes ‘in connection with identifying persons who have died, or are suffering from illness or injury’ and ‘for the purpose of ascertaining whether a person has acted unlawfully, or has obtained or sought anything to which the person is not legally entitled’ but no longer includes rather vaguer references to ‘in connection with the exercise of a function by virtue of the Immigration Acts’ or ‘in connection with control of the United Kingdom's borders’. Both versions however include the incredibly broad purpose of ‘for such other purposes (whether in accordance with functions under an enactment or otherwise) as the regulations may specify.’

Section 9: detention powers Expands scope of investigative detention powers to establish whether a person is to be detained or is liable to be detained. Came into force 14 July 2014.


PART 2: APPEALS

Section 15: rights and grounds of appeal Repeals and replaces sections 82, 83, 83A and 84 of the 2002 Act. This is a very major change in appeal rights in immigration law.

Commencement

These changes to appeals law were commenced in three waves, already described in the first part of the ebook. In short, the waves were:

1. Foreign criminals and Tier 4 applications (including family members) made on or after 20 October 2014

2. Tier 1, 2 and 5 applications (including family members) on or after 2 March 2015


3. Against any decision on or after 6 April 2015 but, other than the above exceptions, not where the application was made prior to 6 April 2015, unless the decision on or after 6 April 2015 includes an asylum or human rights decision.

At the same time as the third wave removed traditional full rights of appeal, the system of Administrative Review under the Immigration Rules was expanded. This lies outside the scope of this ebook on the Immigration Act 2014 itself, but it is useful to note that Administrative Review was not expanded to cover short term students, visitors, partners or children of members of the Armed Forces and some Appendix Armed Forces decisions, family members under Part 8 or Appendix FM, asylum decisions under Part 11 and some others. All these types of applicant should if refused and if there are grounds to do so pursue a right of appeal under the new amended section 82 of the Nationality, Immigration and Asylum Act 2002, albeit on human rights or refugee grounds only.

Rights and grounds of appeal

The previous version of s.82 provided that there was a right of appeal to the tribunal where one of a long list of types of immigration decision was made. If there was an appeal, s.84 then set out a whole range of legal arguments or grounds that could be relied on. That system, which tied appeals to service of formal immigration decisions of certain types, was replaced with a system that only permits an appeal if a claim then decision regarding international protection or human rights is made.

This is the new version of section 82:

82 Right of appeal to the Tribunal

(1) A person (“P”) may appeal to the Tribunal where—


(a) the Secretary of State has decided to refuse a protection claim made by P,(b) the Secretary of State has decided to refuse a human rights claim made by P, or (c) the Secretary of State has decided to revoke P’s protection status.

(2) For the purposes of this Part—

(a) a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom—

(i) would breach the United Kingdom’s obligations under the Refugee Convention, or(ii) would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

(b) P’s protection claim is refused if the Secretary of State makes one or more of the following decisions—

(i) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations under the Refugee Convention;(ii) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;

(c) a person has “protection status” if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;(d) “humanitarian protection” is to be construed in accordance with the immigration rules;(e) “refugee” has the same meaning as in the Refugee Convention.

(3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.


It can be seen that the plethora of different types of defined 'immigration decisions' has been replaced with a right of appeal based on the substantive claim and then type of decision by the Secretary of State. The only types of decisions that can be appealed are those that raise refugee or human rights protection issues.

Home Office internal guidance on rights of appeal is available: Rights of appeal. This particular document is found on the gov.uk website with a collection of other documents on appeals which may be of interest: Immigration Act 2014: appeals.

Section 84 of the 2002 Act, which provides the grounds (or legal reasons or basis) for an appeal, is also repealed and replaced by s.15 of the new Act. The new version provides:

84 Grounds of appeal

(1) An appeal under section 82(1)(a) (refusal of protection claim) must be brought on one or more of the following grounds—

(a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;(b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421560/Rights_of_appeal_guidance_v2.0_EXT.pdf

http://gov.uk

https://www.gov.uk/government/publications/appeals

(3) An appeal under section 82(1)(c) (revocation of protection status) must be brought on one or more of the following grounds—

(a) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations under the Refugee Convention;(b) that the decision to revoke the appellant’s protection status breaches the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection.

This removes a considerable number of previous grounds of appeal, including that the decision was not in accordance with the law, was not in accordance with the immigration rules, was racially discriminatory, that a discretion conferred by the immigration rules should have been exercised differently or that the decision was not in accordance with European Union obligations. In line with the new section 82 the only available appeals are ones raising refugee or human rights issues.

Note also that the subsections of section 84 require that certain types of appeal must be brought on certain grounds:

• A refusal of a refugee claim must be brought on Refugee Convention, humanitarian protection or human rights grounds (s.84(1));

• A refusal of a human rights claim must be brought on human rights grounds (s.84(2));

• A revocation of protection status appeal must be brought on one or more of Refugee Convention and humanitarian protection grounds (s.84(3)).

The language of the section is clear that reliance on specified grounds is mandatory if an appeal is to be brought. However, the section does not explicitly prevent reliance on additional grounds. For example, it might be possible to rely on Refugee Convention or humanitarian protection grounds in a human rights claim appeal or on human rights grounds in a revocation of


protection status appeal. This does not appear to be the intention of the drafters, however, and the courts may decline to permit such an approach.


Examples

Christophe enters the UK as a student under Tier 4. He is granted leave for three years. After two years, while he still has current leave, he applies for leave to remain as a spouse, specifying carefully in his application that he believes that he meets the requirements of the Immigration Rules but also that he relies on Article 8 of the ECHR.

Under the old appeal system, Christophe would not have a right of appeal because he still possessed leave. Under the new system, he would have a right of appeal on human rights grounds.

***

Danielle entered the UK several years ago and claimed asylum. Her claim was dismissed and her appeal rights exhausted but no steps were taken to remove her and she has remained in the UK. She is now in a serious relationship with a British citizen and has two British citizen children by her partner. She applies for leave to remain on human rights grounds but her application is refused.

Under the old system Danielle would not normally have been granted a right of appeal by the Home Office, at least initially. She would have needed to pursue protracted, expensive and uncertain judicial review proceedings to obtain a right of appeal. Under the new system, she would have a right of appeal on human rights grounds.

***

Eric entered the UK under Tier 1 of the Points Based System as an Entrepreneur. He applied to extend his leave. The application was refused, Eric believes on incorrect and spurious grounds because a document was not read properly.

Under the old appeal system, Eric would have had a right of appeal. Under the new system, Eric does not have a right of appeal. He must rely instead on ‘administrative review’ and/or an application for judicial review.

Appeals in EU rights cases

The right of appeal against adverse EU rights decisions originating in the Immigration (EEA) Regulations 2006 has been separately preserved, as the Government indicated during the passage of the Bill (Hansard 3 Mar 2014 : Column 1190).

As previously, appeal rights in EU law decisions originate in the Immigration (EEA) Regulations 2006 as amended. Paragraph 26 of the regulations generates a right of appeal against “an EEA decision” as defined. Schedule 1 then imports certain parts of the Nationality, Immigration and Asylum Act 2002 on appeals to apply in EU law cases. The Immigration (European Economic Area) (Amendment) Regulations 2015 (SI 2015/694) amend the appeals parts of the regulations so that these sections of the 2002 Act are imported in the following way:

section 84 (grounds of appeal), as though the sole permitted ground of appeal were that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom (“an EU ground of appeal”);

section 85 (matters to be considered), as though—

(i) the references to a statement under section 120 of the 2002 Act include, but are not limited to, a statement under that section as applied by paragraph 4 of Schedule 2 to these Regulations; and (ii) a “matter” in subsection (2) and a “new matter” in subsection (6) include a ground of appeal of a kind listed in section 84 of the 2002 Act and an EU ground of appeal;

section 86 (determination of appeal)

In addition, the new amended section 120 notice regime is also applied, with appropriate adjustments, in EU law cases (see further below).


http://www.eearegulations.co.uk/Latest/Index

http://www.legislation.gov.uk/uksi/2015/694/made?

The effect is that there is still a right of appeal against “an EEA decision” as defined and that there is a sole ground of appeal which is that that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom. However, the new section 120 notice procedure also applies and it appears to be possible by that means to raise other grounds (albeit only asylum and human rights grounds).

Further, it is possible for an appellant on asylum and human rights grounds to raise an EU ground of appeal either by means of a section 120 notice or with the consent of the Secretary of State, as “a new matter” for the purposes of the new section 85(6) of the 2002 Act.

Importance of making a human rights claim

The new right of appeal is only available if ‘the Secretary of State has decided to refuse a human rights claim made by [the person]’. This will clearly require a human rights claim to have been made in the first place as well as a refusal of that claim.

This may not be a straightforward matter in many immigration cases.

At the time of writing, the original definition of ‘human rights claim’ set out in the original version of section 113 of the Nationality, Immigration and Asylum Act 2002 is still in force, which provides as follows:

“human rights claim” means a claim made by a person to the Secretary of State at a place designated by 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) as being incompatible with his Convention rights

The Immigration, Asylum and Nationality Act 2006 provides for that definition to be amended but as far as can ascertained that amendment will never be commenced.


Paragraph 53 of Schedule 9 of the Immigration Act 2014 will, if commenced, alter the definition of ‘human rights claim’:

(a) in the definition of “human rights claim”—

(i) after “Kingdom” insert “or to refuse him entry into the United Kingdom”;

(ii) omit “as being incompatible with his Convention rights”;

As is discussed in more detail below, where a human rights claim is made from outside the UK there is specific provision made stating that such an appeal must be brought from outside the UK (new s.92(4)).

Importance of a human rights decision

In the case of R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 169 (IAC) the Upper Tribunal held that the new section 82 of the 2002 Act does not mean what is appears to say and should instead be interpreted so as to mean that only a new or fresh “claim” will count as a “claim” and require a “decision” thus giving rise to a right of appeal.

The claimant in Waqar was a foreign criminal and the new appeal regime applied to him. He had already made a previous human rights claim and lost his appeal. He then made new human rights representations, which were rejected by the Home Office as not meeting the requirements for a fresh claim under paragraph 353 of the Immigration Rules:

When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has


http://www.bailii.org/uk/cases/UKUT/IAC/2015/169.html

previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.

The claimant asserted that under the new appeal regime he had a right of appeal whether or not he met the requirements of paragraph 353. He had made a “claim” and the Secretary of State had “decided”. The claimant argued that mechanisms were available to the Secretary of State to prevent abuse, in the form of the various certification powers.

The tribunal preferred the Home Office approach, holding that the meaning of “claim” and “decision” in the new section 82 could not just mean an assertion of a human rights breach but had to meet the requirements of paragraph 353 of the Immigration Rules. If it did, anyone could generate a right of appeal as they wished, subject only to the constraints of the certification powers at sections 94, 94B and 96 of the 2002 Act.

The reasoning of the tribunal is somewhat opaque and it remains to be seen whether the higher courts agree with the tribunal’s approach. There is certainly no support for the approach on the face of the new provisions.

What issues can be argued in a human rights appeal?

Some appeals that would previously have been characterised as cases argued under the immigration rules, European Union rights or no being in accordance with the law are capable of being re-characterised as ones that involve human rights. For example, a case where a spouse is refused under the immigration rules can be argued as a human rights case. Further, many


(the vast majority in fact) such cases will turn on whether the immigration rules were in truth satisfied.

In any case raising human rights issues under Article 8 of the European Convention on Human Rights it is necessary to follow the famous 5 steps set out in Razgar [2004] 2 AC 368:

(i) Will there be an interference by a public authority with the exercise of the applicant’s right to respect for his private or family life?

(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(iii) If so, is such interference in accordance with the law?

(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?

If a person in truth, as determined by an independent judge, meets the requirements of the Immigration Rules then the decision cannot be said to be in accordance with the law, cannot be said to be ‘necessary’ in a democratic society and cannot be said to be proportionate.

So, if it can be shown that human rights are engaged in some way and that the Immigration Rules, as properly interpreted and applied to the facts as found by a judge, were contravened in the making of the decision, the appeal will normally fall to be allowed on human rights grounds.

To put it another way, there will be no need to look at whether an exception should be made to the Immigration Rules and an appeal allowed outside the rules or even to look at the Home Office’s private life Immigration Rules for


http://www.bailii.org/uk/cases/UKHL/2004/27.html

example at paragraph 276ADE. Instead, the focus in such a case will be on the Immigration Rule under which the person applied for entry.

If the rules are not satisfied, then the arguments would move on to whether the case should be allowed outside the rule and at that stage the private life rules at paragraph 276ADE and other human rights arguments will need to be considered.

However, litigants whose human rights are not arguably engaged, such as new entrants without existing links to the UK, students and business people, will not be able to appeal to the tribunal. Their only remedy will be an application for judicial review.

This approach was broadly followed by the Upper Tribunal in the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), a case that was determined by President McCloskey.

From an immigration lawyer's perspective, the loss of the 'not in accordance with the law' ground of appeal is a very significant change, potentially removing the developing public law jurisdiction in the immigration tribunal. However, given that the assessment of human rights involves asking whether a decision was in accordance with the law, it may well prove to be the case that public law arguments are preserved in human rights cases. From the debates in the House of Lords, this appears to be the Government’s view (see Lord Wallace of Tankerness at Hansard 19 Mar 2014 : Column 208). This is not something that was directly addressed in the Mostafa case, however.

The loss of the race discrimination ground of appeal is also regrettable. Although seldom deployed in practice, it has been used on occasion. A similar outcome might potentially be achieved in a human rights appeal by relying on Articles 8 and 14 combined, or alternatively it may be more effective to pursue a full civil race discrimination claim through the county court, a route which will no longer be barred in immigration cases.


https://tribunalsdecisions.service.gov.uk/utiac/2015-ukut-112

Can new matters be raised at appeal?

Section 85 of the 2002 Act, already fairly recently amended, is further amended to prevent appellant's raising new grounds of appeal not already raised. The relevant parts of the new s.85 will read as follows:

(4) On an appeal under section 82(1) against a decision the Tribunal may consider any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision.

(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.

(6) A matter is a “new matter” if—

(a) it constitutes a ground of appeal of a kind listed in section 84, and(b) the Secretary of State has not previously considered the matter in the context of—

(i) the decision mentioned in section 82(1), or(ii) a statement made by the appellant under section 120.

Astute readers will note that specific references to ‘evidence’ are stripped from subsection (4).

On the meaning of “new matter” and when consent might be granted or withheld, a Home Office policy document entitled Appeals Guidance issued on 20 October 2014 emphasises that a new matter is not merely new evidence, or even new developments in an existing Article 8 private and family life claim, but an entirely new matter such as an Article 8 claim where previously only a refugee claim had been made and considered by the Home Office. Where the substance of the appeal remains the same, such as where an Article 8 claim is added to an existing refugee claim or where Article 8 is suddenly pleaded in addition to Article 3 in a medical treatment case, that is not considered to constitute a new matter.


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364620/2014-10-16_immigration_appeals_guidance_-_govuk_edition.pdf

Civil servants are encouraged by the policy to try and consider new matters to enable an appeal to proceed but to withhold consent to the new matter being considered by the tribunal or withdraw the appeal if for example:

(i) It is necessary to verify facts or documents that are submitted in support of the new matter and these checks are material to the new matter;

(ii) The new matter comprises a protection claim and it has not already been confirmed that the UK is the responsible state for determining the claim;

(iii) If it is necessary to conduct additional checks such as a person’s criminal conviction history or the status of impending prosecution.

The policy states that written reasons must be given for withholding consent to raise a new matter.

The relatively section 85A introduced by the 2007 Act on new evidence in Points Based System cases is repealed as it is now redundant.

Duty to keep the Home Office informed

A new expanded section 120 of the 2002 Act is introduced by paragraph 55 of Schedule 9 and came into effect in tandem with the new removal power at section 1 and new appeal rights.

The new s.120 notices can be served not only if a person is pursuing an appeal but if a human rights or protection claim is made, any application for leave to enter or remain has been made or a deportation or removal decision has been made.

Once served on a person it imposes an ongoing duty to inform the Secretary of State as soon as reasonably practicable of any new or additional reasons the person should be permitted to remain or should not be removed. A failure to do so will risk certification under the amended section 96 of the


Nationality, Immigration and Asylum Act, subsection 2 of which now provides:

(2) A person may not bring an appeal under section 82 if the Secretary of State or an immigration officer certifies—

(a) that the person has received a notice under section 120(2),

(b) that the appeal relies on a ground that should have been, but has not been, raised in a statement made under section 120(2) or (5), and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in a statement under section 120(2) or (5).

This change is wrought by paragraph 41 of Schedule 9. Certification has the effect of preventing a person bringing an appeal. Failing to keep the Home Office informed can therefore have serious consequences.

Administrative Review

For those migrants whose immigration applications are refused and who would formerly have had a right of appeal from within the UK, an application for ‘Administrative Review’ is now potentially available.

Obviously, no application for judicial review can be contemplated where an application for Administrative Review is an adequate remedy; if arguably so, an application for Administrative Review must first be made then judicial review pursued if no adequate response is received.

The narrow grounds on which an application for Administrative Review may be made will mean that for some individuals an application for Administrative Review is not an adequate remedy.

The process is very different to the old out of country review process which was also confusingly called “administrative review” but which was abolished


as of 6 April 2015. The new Administrative Review is codified in the Immigration Rules at paragraphs 34L to 34Y and at Appendix AR and here I have capitalised it given it is a formal and specific legal process. As well as the rules, there is also a detailed Home Office policy available: Administrative review.

There is a 14 calendar day time limit to apply for in-country Administrative Review of a refused application (7 days where the person is detained). A specified application form or the online process must be used to make an application and a fee of £80 must be paid. The fee is refunded if the outcome of the review is to grant leave or to amend the length of leave or conditions or if the application is deemed invalid.

Administrative Review may only be pursued against defined eligible decisions. These are set out exhaustively in Appendix AR and include:

(i) decisions on applications for leave to remain under Tier 4 on or after 20 October 2014;

(ii) decisions on applications for leave to remain under Tiers 1, 2 and 5 on or after 2 March 2015;

(iii) decisions on all applications for leave to remain on or after 6 April 2015 other than visitors or where a human rights claim is included in the application and it falls under specified paragraphs of the Immigration Rules, including those covering long residence, private life, family members of HM Forces, certain Part 8 family applications, asylum cases, Appendix FM cases;

(iv) certain decisions where a migrant arrives in the UK and leave to enter or remain is cancelled with the result that the applicant has no leave to enter or remain;

(v) decisions to refuse applications for entry clearance on or after 6 April 2015 other than for visitors and short term students or where a human


https://www.gov.uk/government/publications/immigration-rules-appendix-ar-administrative-review

https://www.gov.uk/government/publications/administrative-review

https://www.gov.uk/government/publications/immigration-rules-appendix-ar-administrative-review

rights claim is included in the application and it falls under specified paragraphs of the Immigration Rules, including those covering family members of HM Forces, certain Part 8 family applications, asylum cases, Appendix FM cases.

A decision will only be overturned if a “case working error” is identified as part of the review, and these are exhaustively defined in Appendix AR (amended as of 6 April 2015):

AR2.11 For the purposes of these Rules, a case working error is:

(a) Where the original decision maker’s decision to refuse an application on the basis of paragraph 320(7A), 320(7B) or 322(1A) of these Rules, or cancel leave to enter or remain which is in force under 321A(2) of these Rules, was incorrect;

(b) Where the original decision maker’s decision to refuse an application on the basis that the date of application was beyond any time limit in these Rules was incorrect;

(c) Where the original decision maker otherwise applied the Immigration Rules incorrectly; and

(d) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.

AR2.12 Additionally, where the eligible decision is one specified in paragraph AR3.2, a case working error is also where there has been an error in calculating the correct period or conditions of immigration leave either held or to be granted.

The Home Office has set a target of 28 days for resolution of applications for administrative review.


Section 3C and extension of leave

Section 3C of the Immigration Act 1971 is amended to reflect the replacement of appeals with administrative review. The new version reads as follows, with the new provisions underlined:

3C Continuation of leave pending variation decision

(1) This section applies if—

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and


Example

Idris applies for further leave to remain as a Tier 4 student. His application is refused on 7 April 2015 because of a missing bank statement. With no right of appeal, Idris must either give up, pursue Administrative Review or pursue an application for judicial review.

The decision is an eligible one for Administrative Review because it was made on or after 2 March 2015. Is there an arguable case working error? There might be, given that AR2.11(d) refers to failure to apply a published policy or guidance and it is strongly arguable that the published evidential flexibility policy should have been applied.

Is Administrative Review an adequate remedy that precludes an application for judicial review on these facts? It probably is: a judge would be unimpressed by an omission to at least attempt an Administrative Review on these facts. If the Administrative Review fails, Idris could potentially pursue an application for judicial review afterwards, as long as it is within three months of the original date of refusal (not the date of the Administrative Review decision).

AR2.11(d) reiterates the importance of being familiar with all relevant Home Office policies and guidance.

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when—

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom,] 3 is pending (within the meaning of section 104 of that Act), or

(d) an administrative review of the decision on the application for variation—

(i) could be sought, or

(ii) is pending.

(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

(6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations–

(a) may make provision by reference to receipt of a notice,

(b) may provide for a notice to be treated as having been received in specified circumstances,


(c) may make different provision for different purposes or circumstances,

(d) shall be made by statutory instrument, and

(e) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section—

“administrative review” means a review conducted under the immigration rules;

the question of whether an administrative review is pending is to be determined in accordance with the immigration rules.

Section 3D of the 1971 Act on continuation of leave in the event of revocation of leave is similarly amended.

Analysis of impact

It is highly likely there will be less immigration appeals in future. Whole categories of appeal are being abolished, leaving appeals only for those who have made an international protection or human rights claim and been refused or who are having their protection status revoked. The graphic to the right is based on the Government’s own impact assessment on appeals volumes. The assessment accepts that it may be an overestimate, and you can read for yourself the dubiously simplistic assumptions on which the assessment is based. Nevertheless, there will likely be substantially less appeals in future.

The Government takes the view that family visa applications will retain


http://www.parliament.uk/documents/impact-assessments/IA13-24A.pdf

the right of appeal under Article 8. Whether this is left to the courts to decide or is more formally set out in regulations, policy or a Ministerial statement is unclear.

However, while it would appear that while many lawful migrants who contend that they satisfy the terms of the immigration rules will have no right of appeal in future, overstayers and illegal entrants will have a right of appeal as they will be relying on human rights applications and grounds. The problems for overstayers in obtaining a right of appeal following the Daley-Murdock decision are legendary and this new appeal scheme on the face of it appears to offer them a ready right of appeal constrained only by the ability of the Secretary of State to impose appeal ousting certificates under sections 94 (clearly unfounded) or 96 (could already have been argued) of the Nationality, Immigration and Asylum Act 2002.

Those without a right of appeal will need to pursue the new Administrative Review mechanism, give up on their application or pursue an application for judicial review. Many with meritorious cases and a genuine grievance will presumably wish to pursue this course of action.

There are advantages and disadvantages to judicial review as a remedy. For most, the disadvantages probably outweigh the advantages.

For migrants who would previously have had a right of appeal but who are left only with the possibility of an application for judicial review, their leave to enter or remain will not be automatically statutorily extended by section 3C of the Immigration Act 1971 and the statutory bar on removal will not be effective. Home Office policy is currently not to pursue removal against most people making a judicial review application, but this policy level protection is far weaker than a statutory bar. It may be worth asking for interim relief of an extension of their leave to enter or remain in judicial review claims by migrants who are lawfully present.


http://www.freemovement.org.uk/refusal-with-no-right-of-appeal-revisited/

Judicial review can be a more protracted, riskier remedy than appeals and does not permit a full review of the merits of the case or substitution of the judge’s own decision for that of the original decision maker. Costs orders are usually made in judicial review cases, unlike in the immigration tribunal, and the loser usually pays the costs of the winner. On the plus side, costs can be recovered for a successful judicial review, unlike appeals, and the litigation conduct of the Home Office is usually somewhat better in judicial review claims than appeals. An early remedy is sometimes possible in judicial review applications as the Home Office lawyers are more inclined to take a realistic view than in appeals cases.

For lawyers, the attraction of being able to claim full inter partes costs against the Home Office in successful judicial review cases is a strong one. For their clients, a “low fee if lose, full costs if win” Conditional Fee Arrangement may be an attractive one to ameliorate some of the financial risks.

Choice of remedy: choose wisely

A person who applies for immigration status from within the UK and is refused now faces a confusing array of remedies:

(i) Appeal on human rights or refugee grounds, which should include a review of the general lawfulness of the decision as well as its proportionality;

(ii) Administrative review, which has the benefit of extending leave under section 3C but which is limited only to certain eligible decisions and certain case working errors; or

(iii) An application for judicial review, which is limited to a review of the lawfulness of the decision not its merits and, crucially, is only available if no other remedy is adequate.


Might there be a choice of remedy in certain situations? Or, at least, might it be so unclear what the “correct” remedy is that more than one should be pursued at the same time? Arguably, yes, as the following example shows.

Appeal Administrative review Judicial review

Pros Includes a review of the merits of the decision and judge can substitute own decision, should include review of whether Immigration Rules are satisfied and whether decision is otherwise lawful, extends leave under section 3C, costs not usually awarded, relatively cheap

Quick, cheap, extends leave under section 3C

Established remedy, costs will be awarded if succeed, interim relief may be available to extend leave

Cons Judges may not accept their wider jurisdiction to consider Immigration Rules and lawfulness, cannot recover costs

Not an independent review, rules are very prescriptive, only certain decisions can be reviewed and only on certain grounds

Expensive remedy, have to pay costs of other wide if lose, a review jurisdiction (not merits, only lawfulness), interim relief might not be granted



Example

Gerry enters the UK as a visitor to visit his spouse. They had no plans to settle in the UK but his spouse suffers a bad accident and becomes wheelchair bound. She needs Gerry’s help for day to day living. Although it is not possible under the Immigration Rules to “switch” from visitor to spouse they are advised that their situation is exceptional and that with Gerry’s previous very good immigration history the Home Office might be sensible enough to exercise discretion in their favour. The application specifically requests that discretion is exercised outside the rules.

The Home Office refuse the application purely on the basis of Gerry’s immigration status. There is no consideration of whether discretion should have been exercised outside the rules.

Gerry must select his remedy wisely. Should he:

(a) Opt for administration review, which extends his leave but where the error does not appear to be a defined “case working error”?

(b) Opt for a human rights appeal, which relies on human rights grounds and may or may not include an attack on the failure to consider exercising discretion?

(c) Opt for a judicial review application, from which he may arguably be barred because it could be asserted a human rights appeal is an adequate remedy, but in which he might potentially seek interim relief to extend his leave and where it is more arguable that he could assert that failure to consider exercising discretion was unlawful in the circumstances?

Or need Gerry choose between these options at all? To what extent are they mutually exclusive or to what extent might they be “different horses for different courses” and be capable of being pursued in parallel with one another?

Section 16: review of administrative review This mandates that the Secretary of State commission from the Chief Inspector of Borders and Immigration a report on the effectiveness of administrative review. There is no obligation on the Secretary of State to take any action on receipt of the report, nor is there any statutory basis for restoration of full rights of appeal.

This section might properly be described as toothless.


Section 17: venue of appeals This section repeals and replaces s.94 of the 2002 Act on the issue of from where an appeal might be brought, i.e. whether from inside the UK or from outside. It introduces new provisions requiring some deportation appeals to be brought from outside the UK.

Ordinary appeals

A new version of section 92 of the 2002 Act is substituted. Under the old regime, human rights and refugee cases were brought from inside the UK, with the exception of cases certified as 'clearly unfounded' under s.92 of the 2002 Act or certain safe third country removal cases. That broadly continues, but with an added new exception: cases where the person is liable to deportation under the new s.94B.

The new version of section 92 provides as follows:

92 Place from which an appeal may be brought or continued

(1) This section applies to determine the place from which an appeal under section 82(1) may be brought or continued.

(2) In the case of an appeal under section 82(1)(a) (protection claim appeal), the appeal must be brought from outside the United Kingdom if—

(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country), or

(b) paragraph 5(3)(a), 10(3), 15(3) or 19(b) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe third country) applies.

Otherwise, the appeal must be brought from within the United Kingdom.

(3) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the


appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if—

(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country) or section 94B (certification of human rights claims made by persons liable to deportation), or

(b) paragraph 5(3)(b) or (4), 10(4), 15(4) or 19(c) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal of asylum seeker to safe third country) applies.

Otherwise, the appeal must be brought from within the United Kingdom.

(4) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was outside the United Kingdom, the appeal must be brought from outside the United Kingdom.

(5) In the case of an appeal under section 82(1)(c) (revocation of protection status)—

(a) the appeal must be brought from within the United Kingdom if the decision to which the appeal relates was made while the appellant was in the United Kingdom;

(b) the appeal must be brought from outside the United Kingdom if the decision to which the appeal relates was made while the appellant was outside the United Kingdom.

(6) If, after an appeal under section 82(1)(a) or (b) has been brought from within the United Kingdom, the Secretary of State certifies the claim to which the appeal relates under section 94(1) or (7) or section 94B, the appeal must be continued from outside the United Kingdom.

(7) Where a person brings or continues an appeal under section 82(1)(a) (refusal of protection claim) from outside the United Kingdom, for the


purposes of considering whether the grounds of appeal are satisfied, the appeal is to be treated as if the person were not outside the United Kingdom.

(8) Where an appellant brings an appeal from within the United Kingdom but leaves the United Kingdom before the appeal is finally determined, the appeal is to be treated as abandoned unless the claim to which the appeal relates has been certified under section 94(1) or (7) or section 94B.

Note that subsection (4) explicitly provides for out of country human rights appeals where a human rights claim is made from outside the UK, and subsection (5) provides that where revocation occurs the appeal is brought from inside the UK if the person was in the UK at the time of revocation or must be brought from outside the UK if the person was outside the UK at the time of revocation. Subsection (8) provides for appeals brought from within the UK to be treated as abandoned if the person leaves the UK and section 104 of the 2002 Act on pending appeals receives consequential amendments (see paragraph 47 of Schedule 9 for details).

Deportation appeals

The new s.94B, brought into effect on 28 July 2014, provides for an exception to be made to the right to an in country appeal against a human rights claim refusal where the appellant is a person liable to deportation:


Example

Winnie applies to join her husband in the UK. At the time of making her application she is careful to specify that she is making a human rights claim based on family life with her husband. Her application is refused. Assuming she is judged to have made a human rights claim, she should have a right of appeal but from outside the UK.

94B Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

(1) This section applies where a human rights claim has been made by a person (“P”) who is liable to deportation under—

(a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or(b) section 3(6) of that Act (court recommending deportation following conviction).

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.

The impact of this section is a little difficult to foresee because it appears circular: a human rights appeal must be brought from inside the UK if the removal of the person from the UK would breach human rights. The Home Office appears confident that this will be interpreted as applying only or mainly where the person concerned will suffer 'a real risk of serious irreversible harm' if removed. Of course, most people contending for a breach of their human rights would say that they satisfy this test, and it is arguable that this is not the correct test for whether it would breach human rights to appeal from outside the UK. There is some Strasbourg authority to


support the Home Office position, and this will no doubt be the subject of test litigation.

Origins of the serious irreversible harm test

The ‘real risk of serious irreversible harm’ test appears to originate in the European Court of Human Rights rule 39 interim relief application test and the Grand Chamber decision in De Souza Ribeiro v France (Application no. 22689/07):

82. Where a complaint concerns allegations that the person’s expulsion would expose him to a real risk of suffering treatment contrary to Article 3 of the Convention, in view of the importance the Court attaches to that provision and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised, the effectiveness of the remedy for the purposes of Article 13 requires imperatively that the complaint be subject to close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005-III), independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari, cited above, § 50) and reasonable promptness (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004-IV). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Gebremedhin [Gaberamadhien], cited above, § 66, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, 23 February 2012). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right to life safeguarded by Article 2 of the Convention. Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 (see Čonka, cited above, §§ 81-83, and Hirsi Jamaa and Others, cited above, § 206).


http://www.bailii.org/eu/cases/ECHR/2012/2066.html

83. By contrast, where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, Article 13 in conjunction with Article 8 of the Convention requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see M. and Others v. Bulgaria, no. 41416/08, §§ 122-132, 26 July 2011, and, mutatis mutandis, Al-Nashif v. Bulgaria, no. 50963/99, § 133, 20 June 2002).

For further analysis see Adam Wagner’s blog post on the UK Human Rights Blog, Deport first, appeal second. Wagner suggests that

Somebody has clearly picked up on the fact that the European Court has stated that only Article 3 ECHR (protection from inhuman or degrading treatment) cases require that the deportation be suspended before it is resolved. By contrast, Article 8 (private and family life) challenges do not require automatic suspension of the deportation process, but does require “the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality”.

Does the need for an appropriate “domestic” forum mean that the appeal needs to take place in the state which is doing the deporting, or for the appellant to be in the deporting state even if the appeal is heard there? I don’t think so; the criticism of the Grand Chamber in De Souza was that the applicant was deported within 50 minutes of him lodging a Judicial Review,


http://ukhumanrightsblog.com/2013/01/06/deport-first-appeal-second/

http://ukhumanrightsblog.com/introduction/incorporated-rights/article-3-of-the-echr/

http://ukhumanrightsblog.com/introduction/incorporated-rights/article-3-of-the-echr/

that is before the administrative court judge even had the opportunity to decide whether to suspend his deportation or not. So there was no judicial scrutiny at all.

The “irreversible harm” test is applied in the context of interim urgent relief applications to the European Court of Human Rights under Rule 39. There has only been one known Rule 39 indication in an Article 8 case: see Nunez v. Norway (Application No. 55597/09).

Home Office policy

Guidance from the Home Office addresses the circumstances in which these new certificates will be issued. Separate guidance exists for non EEA and EEA cases. The guidance on non EEA cases suggests that the Home Office will be enthusiastic about use of the new power:

The Government’s policy is that the deportation process should be as efficient and effective as possible and therefore case owners should seek to certify a case using the section 94B power in all cases meeting these criteria where doing so would not result in serious irreversible harm.

The guidance observes, surely correctly, that the test relates to the period between deportation and the conclusion of any appeal, after which the person will return to the UK if successful, and that the test requires that the harm be serious AND irreversible. Next, the guidance goes on to suggest situations that in the opinion of the Home Office would not meet the test:

• A person will be separated from their child/partner for several months while the individual appeals against a human rights decision

• A family court case is in progress

• A child/partner is undergoing treatment for a temporary or chronic medical condition that is under control and can be satisfactorily managed through



https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336866/Section_94B.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336878/_EEA__Amendment__No_2__Regulations_2014.pdf

medication or other treatment and does not require the person liable to deportation to act as a full time carer

• The FNO has a medical issue which does not lead to an Article 3 breach

• A person has strong private life ties to a community that will be disrupted by deportation (e.g. they have a job, a mortgage, a prominent role in a community organisation etc.)

It might be thought that the family court case suggestion is clearly wrong. A person usually needs to be physically present in the UK in contested family court proceedings as various assessments are often needed which will be impossible if the person is not present in the UK.

The guidance then goes on to give examples of situations that in the view of the Home Office would meet the test:

• The person has a genuine and subsisting parental relationship with a child who is seriously ill, requires full-time care, and there is no one else who can provide that care

• The person has a genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else who can provide that care

The guidance concludes:

The onus is on the Secretary of State to demonstrate that there is not a real risk of serious irreversible harm. However, if a person claims that a non-suspensive appeal would result in serious irreversible harm, the onus is on that person to substantiate the claim with documentary evidence, preferably from official sources, for example a signed letter on letter-headed paper from the GP responsible for treatment, a family court order, a marriage or civil partnership certificate, documentary evidence from official sources


demonstrating long-term co-habitation, etc. Case owners should expect to see original documents rather than copies.

Commencement

The commencement of the new regime began with Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820). However, this instrument brought into effect only sections 17(1) and 17(3) of the Immigration Act 2014, not the critically important section 17(2). Instead, the commencement order provided:

Until section 17(2) of the Act comes into force for all purposes, section 92 of the Nationality, Immigration and Asylum Act 2002 (appeal from within the United Kingdom: general) has effect in any case in which a foreign criminal as defined in section 117D(2) of that Act (as inserted by section 19 of the Act) has made a human rights claim which the Secretary of State has certified under section 94B of that Act (as inserted by section 17(3) of the Act) as if—

(a) the reference in subsection (2) to an immigration decision of a kind specified in section 82(2)(j) of that Act were omitted;

(b) the reference in subsection (4)(a) to a human rights claim were omitted; and

(c) subsection (4)(b) were omitted.

This was not at the time easy to unpick, to put it mildly. The old section 92 remained in force except that:

1. A decision to make a deportation order no longer carries an in country right of appeal (this is the reference to 92(2) and s.82(2)(j))

2. Making a human rights claim also no longer confers an in country right of appeal (reference to 92(4)(a))

3. Asserting EU treaty rights also no longer confers an in country right of appeal (reference to 92(4)(b))



Further provision was then made in Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014, taking effect on 20 October 2014. This brought into effect section 17(2) for foreign criminals.

None of this has the effect of depriving a person with a current appeal of right to continue pursuing their appeal from within the UK or in any way terminating the existing appeal. Even if section 17(2) of the Immigration Act 2014 and therefore the new version of section 92 NIAA 2002 had been brought into force it still does not seem to have any real impact on existing appeals. So, while the Secretary of State may indeed certify existing appeals it seems that such certificates have no effect.

The Home Office accepts that Article 3 and refugee cases should not be certified under this new power:

It is not appropriate to certify protection claims made on the basis of the Refugee Convention and/or ECHR Article 2 and Article 3 because there will arguably be a real risk of serious irreversible harm.

The Immigration (European Economic Area)(Amendment)(No.2) Regulations 2014 (SI 2014/1976) came into force on 28 July 2014. These new Regulations amend the Immigration (European Economic Area) Regulations 2006 so that an appeal against a deportation decision under Regulation 19(3)(b) can still be lodged in the UK but no longer suspends removal proceedings, except where:

• The Secretary of State has not certified that the person would not face a real risk of serious irreversible harm if removed to the country of return before the appeal is finally determined.

• The person has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.


http://www.legislation.gov.uk/uksi/2014/1976/pdfs/uksi_20141976_en.pdf

Where an interim order to suspend removal proceedings is initiated, the guidance states that removal will not be suspended unless the order is made where:

• the notice of a decision to make a deportation order is based on a previous judicial decision;

• or the person has had previous access to judicial review;

• or the removal decision is based on imperative grounds of public security.

In addition, a person removed from the UK under this new regime can apply to re-enter the UK in order to make submissions in person at their appeal hearing. This is because Article 31(4) of Directive 2004/38/EC states that:

Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.

The guidance purports to limit this provision to cases where the appeal was lodged in time, an appeal hearing date has been set and the person wants to make “submissions” in person. It is not clear whether a person with a legal representative would necessarily qualify for entry under this approach. Further, the guidance states that permission for entry must be sought in advance: simply turning up at the border will lead to refusal of admission.

Challenges to a section 94B certificate

As with “manifestly unfounded”, “clearly unfounded”, various “safe third country” and other types of appeal-limiting certificates, a judicial review of the decision to impose a certificate is possible because there is no other adequate remedy available. A judicial review will usually have the effect of suspending removal.


The substance of any such judicial review will turn on (a) whether the statutory test in section 94B is met and (b) whether the Home Office policy has been applied. Ultimately, challenges will be about whether the removal of the claimant during the currency of his or her appeal will cause serious, irreversible harm.

This may not be restricted only to a question of whether the person’s Article 8 private and family life is caused serious, irreversible harm. The Home Office accepts that Article 3 cases will involve that level of harm (see above). It will also surely be relevant whether the person’s common law and/or Article 6 right to a fair trial of the issue is caused serious, irreversible harm.

In some cases it may be feasible for a person to bring their case from abroad. In others, it may not. The example in the Home Office guidance of a person involved in family law proceedings might well, depending on the facts, be considered to be an excellent example of where serious, irreversible harm could be caused. It is also an example of a situation in which the European Court of Human Rights held that a person does have a right to remain in the country concerned in order to pursue their case: Ciliz v Netherlands (App no. 29192/95), followed and applied in UK domestic cases including MS (Ivory Coast) v SSHD [2007] EWCA Civ 133. Other cases that might not be suitable might be cases where there is a serious dispute as to


Example

Xavier was sentenced to nine years for a very serious criminal offence he committed as a 16 year old. He had been in the UK only a few months at the time of the offence. All of his immediate family are now in the UK and he wishes to remain in the UK with them relying on Article 8 of the ECHR. He is likely to face a certificate under section 94B. The Home Office may well take the view that there is no real risk of serious irreversible harm in a case of this nature. If so, and absent a successful application for judicial review, Xavier may appeal against his deportation but only once he has actually been deported.



the facts of the case and the appellant needs to be physically present in the UK in order to gather evidence.

This is not therefore necessarily an 'easy' or 'cheap' solution for the Home Office, although those without the resources (whether financial, emotional or organisational) may well by default end up being removed without challenge.

Section 18: SIAC This adjusts the scope of some Special Immigration Appeals Commission (SIAC) powers by inserting a new section 2E into the Special Immigration Appeals Commission Act 1997. Essentially this confines SIAC to a judicial review jurisdiction when reviewing certain national security deportation decisions:

2E Jurisdiction: review of certain deportation decisions

(1) Subsection (2) applies in relation to a relevant deportation decision which has been certified under section 97 or 97A(1) of the Nationality, Immigration and Asylum Act 2002 (certification on grounds of national security etc).

(2) The person to whom the decision relates may apply to the Special Immigration Appeals Commission to set aside the decision.

(3) In determining whether the decision should be set aside, the Commission must apply the principles which would be applied in judicial review proceedings.

(4) If the Commission decides that the decision should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.

(5) In this section “relevant deportation decision” means a decision of the Secretary of State about the deportation of a person from the United Kingdom, if and to the extent that—

(a) the decision is not subject to a right of appeal, or


(b) the decision (being subject to a right of appeal) gives rise to issues which may not be raised on such an appeal.

Section 19: statutory human rights considerations Section 19 of the Immigration Act 2014 inserts a new Part 5A into the Nationality, Immigration and Asylum Act 2002. This new Part sets out certain mandatory public interest considerations in immigration and deportation cases: little weight is to be attached to x, the politicians tell the judges through the medium of the legislation, and in y situation there is no public interest in removal.

Interestingly, the relevant sections of the Act apply only to courts and tribunals and not to the Home Office's own immigration officials. As discussed below, this may well mandate different outcomes in applications to the Home Office and appeals against those decisions to judges.

Commencement

The Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820) brought into effect several sections of the Immigration Act 2014 on 28 July 2014, including section 19. The terms of commencement are simply that

The day appointed for the coming into force of the following provisions of the Act is 28th July 2014

There are no other commencement or transitional provisions. Looking at the text of the new Part 5A it therefore seems to take effect immediately, even in extant appeals already before the immigration tribunal. The critical words in this respect are at s.117A, where it states that Part 5A "applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's right to respect for private and family life under Article 8". In any current human rights appeal in which Article 8 is


http://www.legislation.gov.uk/ukpga/2014/22/section/19/enacted


raised, no matter when that appeal was lodged, the court or tribunal will be facing exactly that question and the rest of Part 5A therefore applies: see YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292. The Upper Tribunal addressed the same provisions in the case of Dube (ss.117A-117D) [2015] UKUT 90 (IAC), going on to consider the effect of Part 5A.

The full text of s.117A is as follows:

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

(a) breaches a person’s right to respect for private and family life under Article 8, and(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard—

(a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

Having regard

It can be seen that the new s.117A states that courts and tribunals ‘must have regard to’ the various considerations when addressing “the public interest question”. Judges still have to answer for themselves the question ultimately posed by Article 8(2), which is whether interference is justified on the facts of the case.



http://www.bailii.org/uk/cases/UKUT/IAC/2015/90.html

It is not the first time the politicians have attempted to meddle with decision making by judges in immigration cases. The bogeyman of vogue last time around was the bogus asylum seeker, not the foreign criminal, and the Home Secretary was David Blunkett, not Theresa May.

Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 concerned credibility findings in asylum cases. It instructed Home Office officials and judges alike in how to assess the truthfulness or otherwise of witnesses:

In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

Unlike Part 5A, though, section 8 applied to Home Office decision makers as well as judges. Part 5A only applies to judges. Home Office officials are under no duty to follow the scheme of Part 5A but judges are. As we will see below, judges may be forced, whether they like it or not, to treat cases more generously than Home Office officials.

The 'have regard' duty in s.117A is a mandatory one but as with its section 8 forebear it stops short of requiring judges to make certain findings. In fact, it stops even further short than section 8 ever did, as no similar steer is given in the new Part 5A regarding the outcome of the judge’s consideration of the factors stated to be relevant.

The Court of Appeal dealt with section 8 in the case of JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878. Lord Justice Pill, giving the leading judgment, held that section 8 did not offend against constitutional principles:

The section 8 factors shall be taken into account in assessing credibility, and are capable of damaging it, but the section does not dictate that relevant damage to credibility inevitably results. Telling lies does damage credibility



http://www.freemovement.org.uk/wp-admin/www.bailii.org/ew/cases/EWCA/Civ/2008/878.html

and the wording was adopted, probably with that in mind, by way of explanation. However, it is the "behaviour" of which "account" shall be taken and, in context, the qualifying word "potentially" can be read into an explanatory clause which reads: "as damaging the claimant's credibility". Alternatively, the explanatory clause may be read as: "when assessing any damage to the claimant's credibility". The form of the sub-section and Parliament's assumed regard for the principle of legality permit that construction.

Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that, I respectfully agree with Baroness Scotland's assessment, when introducing the Bill, of the effect of section 8. Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder.

It might be anticipated that a similar approach will be followed by the tribunals and courts as regards Part 5A. Of course judges must 'have regard' to the considerations set out in the new Part 5A, and to fail to do so would be an error of law. Having had regard, though, judges remain free to reach their own conclusions about a case.

Considerations in all cases


The substance of the new considerations are set out at new sections 117B and 117C. The first of these, 117B, deals with considerations said to be applicable in all cases:

117B Article 8: public interest considerations applicable in all cases

(1) The maintenance of effective immigration controls is in the public interest.

(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a) are less of a burden on taxpayers, and

(b) are better able to integrate into society.

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

(4) Little weight should be given to—

(a) a private life, or

(b) a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—


(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

Some terms are subject to definition at section 117D, including:

“qualifying child” means a person who is under the age of 18 and who— (a) is a British citizen, or(b) has lived in the United Kingdom for a continuous period of seven years or more;

“qualifying partner” means a partner who—(a) is a British citizen, or(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).

The mischievous might note that Tier 1 migrants are not required to speak English, which arguably rather undermines the supposed universality of the principle at s.117B(2). And some might say that the not all those who are "financially independent" are "better able to integrate into society”.

Subsections 117B(4) and (5) are arguably inconsistent with the Supreme Court decision in Quila [2011] UKSC 45: Lord Wilson at paragraphs 42 and 43 specifically disavows and declines to follow the case of Abdulaziz v United Kingdom (1985) 7 EHRR 471 on the proposition that Article 8 imposes no general obligation on a state to facilitate the choice made by a married couple to reside in it.

Subsection 117B(6) is arguably more generous than the Home Office’s own pre-existing human rights Immigration Rules dating from 9 July 2012. In any case where there is a British citizen child or a child resident for seven years or more, the parent is in a "genuine and subsisting parental relationship” and it would not be reasonable to expect the child to leave the UK, there is no


http://www.bailii.org/uk/cases/UKSC/2011/45.html

http://www.freemovement.org.uk/wp-admin/www.bailii.org/cgi-bin/redirect.cgi?path=/eu/cases/ECHR/1985/7.html

public interest in removal of the parent. Any such case should therefore always succeed because, in a proportionality balancing exercise, one side of the scales is stated by Act of Parliament to be empty.

In any event, the considerations to which judges must have regard at section 117B are clearly factors to be considered alongside other unspecified factors in assessing proportionality. These considerations (other than the no public interest, which is a default victory for any claimant) interfere very little if at all with the traditional balancing exercise that is required by Article 8. They are not exhaustive: other considerations not listed might also be in the public interest, for example. Everything still has to be considered and a judgment reached. Judges are given a clear steer as to some things Parliament considers to be in the public interest but the judge must still reach his or her own conclusion.

Considerations in deportation cases

The second set of considerations, at 117C, applies only in foreign criminal cases, primarily deportation cases. This scheme works differently. It provides an exhaustive and simplistic list of what is in the public interest. Subsection (1) states that deportation of foreign criminals is in the public interest. Subsection (2) then recognises there is a sliding scale where more serious crimes mean deportation is even more in the public interest. Subsection (3) then states that “the public interest requires … deportation” unless certain exceptions apply, and those exceptions are exhaustively defined, albeit with an element of discretion for those sentenced to more than four years (but with no discretion below that, oddly).

117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.


(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

The definitions at s.117D apply to s.117C as well as s.117B. The definition of “foreign criminal” is expanded from that of the UK Border Act 2007 for the purposes of this Part of the Act:

“foreign criminal” means a person—


(a) who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence, and

(c) who—

(i) has been sentenced to a period of imprisonment of at least 12 months,

(ii) has been convicted of an offence that has caused serious harm, or

(iii) is a persistent offender.

Section 117C tells judges definitively what is in the public interest. It does not complete their task and render them as redundant as some Home Office officials believe: section 117C does not tell judges what conclusion to reach when balancing the public interest against the rights of the individual. The case of Sporrong v Sweden [1982] 5 EHRR 85 is repeatedly cited in countless Strasbourg and domestic cases on what is required when assessing proportionality:

A court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

Judges are told by section 117C what is in the public interest, and they must “have regard” to that. They must then go on and strike a fair balance between the public interest and the fundamental rights of any affected individuals.

In this regard, subsections (4), (5) and (6) of section 117C are particularly interesting. They are arguably more generous than the deportation immigration rules introduced on 9 July 2012.

The "exceptional circumstances" wording previous deployed in the rules is replaced with a more anodyne "very compelling circumstances". This may well be a difference without a distinction, but it removes reference to the legally controversial concept of exceptionality. Does it render the



considerable judicial learning expended on Immigration Rule paragraph 398 in cases such as MF (Nigeria) v SSHD [2013] EWCA Civ 1192 redundant? We will find out in due course, no doubt.

The bizarre "hard law" residence benchmarks of 20 years for those over 25 and ‘half of life’ for those under 25 under the July 2012 rules are replaced with a more evaluative approach at subsection (4) of section 117C. These new criteria are still impossible to achieve for many, of course, but are at least a little less arbitrary than before.

Under the 9 July 2012 rules, a foreign criminal seeking to resist deportation on the basis of relationship with a child had to meet the paragraph 399(a)(ii)(a) test of “it would not be reasonable for the child to leave the UK”. That is replaced with a test of whether the parental relationship with the child is genuine and subsisting and whether the effect of the person's deportation on the child would be unduly harsh.

Is this a stricter test or a more generous one, or it is a further example of a difference without distinction? The emphasis certainly shifts from whether the child can relocate to the overall impact on the child irrespective of whether the child will relocate. The "unduly harsh" test would appear more obviously incompatible with a best interests approach to child welfare, though, which at least could be read into the old reasonableness test.

For those seeking to resist deportation on the basis of a relationship with a partner, subsection (5) is considerably more generous than the test under the 9 July 2012 rules. The old rules required the person facing deportation to have resided continuously and lawfully in the UK for 15 years and for there to be insurmountable obstacles to family life continuing outside the UK. Subsection (5) simply requires a genuine and subsisting relationship and that the effect of deportation on the partner would be unduly harsh.

Conflict between the Act and the Immigration Rules



The Immigration Rules were amended on 28 July 2014 by Statement of Changes HC 532 at the same time that the new Part 5A came into effect. Interestingly, the amended rules cannot apply to an outstanding appeal against a decision made under the old rules, but Part 5A does apply.

The amended rules do not accurately reflect the effect of Part 5A, however: the Act is actually more generous than the rules. Given that the Act is primary legislation, the Act should obviously take precedence if there is a conflict. If so, judges will need to apply the more generous approach in the primary legislation while Home Office officials will be under no such obligation and will presumably stick to the scheme of the Immigration Rules.

For example, in the amended exceptions to deportation in the rules, paragraph 399(b) requires of a person relying on a relationship with a spouse or partner to resist deportation that:

(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

If we compare this against s.117C(5), there is no justification for importing the "insurmountable obstacles" test via reference to EX.2. of Appendix FM, which provides:

For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/329137/hc-532.pdf

The only test in s.117C(5) is one of undue harshness, which in terms of ordinary language seems less onerous than insurmountable obstacles, i.e. obstacles which literally cannot be surmounted. Further, s.117B(4) only states that "little weight" should be attached to a relationship formed when a person's status was precarious, not that this is a disqualifying feature to a case as is suggested by paragraph 399(b)(i) of the rules.

Similarly, EX.1. requires "insurmountable obstacles" to a partner joining the foreign national abroad. Section 117C(4), which only applies in cases of criminality, only requires that an "unduly harsh" test is met. This certainly sounds more generous, but how can it be right that a more generous approach applies to relationships with foreign criminals as opposed to non criminals? This makes no sense.

The Home Office may well come to regret setting out human rights considerations in primary legislation that cannot easily be changed and which states that there is no public interest in removal in certain circumstances.


PART 3: ACCESS TO SERVICES

This part of the Act is intended to create a hostile environment for undocumented migrants.

Chapter 1 creates a civil financial penalty regime for private landlords requiring them to check the immigration status for tenants. Maximum penalties are currently set at £3,000 and the scheme is to be piloted before being introduced nationwide.

Chapter 2 makes provision for checks of immigration status by banks and the DVLA and also makes provision for a levy on new migrants to help fund the National Health Service.


Chapter 1: residential tenancies This scheme came into effect on 1 December 2014 in certain local authorities in the West Midlands: Birmingham City Council, Dudley Metropolitan Borough Council, Sandwell Metropolitan Borough Council, Walsall Metropolitan Borough Council and Wolverhampton City Council.

The new scheme first defines residential tenancies (section 20) and “persons disqualified by immigration status or with limited right to rent” (section 21). The restriction on renting applies to a person who requires leave to enter or remain but does not have it or who’s leave is subject to a condition preventing them from occupying the premises. Provision is made for the Secretary of State to grant the right to rent to a person who would otherwise not have it, such as asylum seekers whose claims are being processed.

Section 22 imposes a new duty on landlords:

A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status.

Further details and definitions follow in the rest of section 22.

Section 23 then imposes a civil penalty regime for landlords who default. The maximum level of fine is specified as £3,000.

Section 24 allows for landlords to be excused from paying the fine if they have complied with ‘prescribed requirements’ or an agent is responsible for the contravention, in which case section 25 specifies that the agent may be fined instead unless they can show that they have complied with ‘prescribed requirements’.

Where a residential tenancy is granted to a person whose right to rent expires, this is referred to in the scheme as a “post grant contravention”. The landlord or agent is excused from paying the fine in these circumstances where the Secretary of State was notified of the contravention as soon as


reasonably practicable, which involves complying with prescribed requirements and acting “without delay on it first becoming apparent that the contravention had occurred”.

The prescribed requirements are likely to be the checking and retention of specified immigration documents as applies for employers under that civil penalty regime.

Sections 28, 29, 30 and 31 provide for a scheme of penalty notices, objections to penalty notices, appeals and enforcement. Section 32 requires the Secretary of State to issue a code of practice setting out the factors that the Secretary of State will consider when determining the amount of a penalty. Section 33 requires the Secretary of State to issue a code of practice setting out the various prescribed requirements and also what the landlord or agent should do to avoid contravening equality and race discrimination laws.

Chapter 2: NHS, banks and driving licences

NHS health charge

A new “health surcharge” was introduced for all new applications for entry clearance or leave to remain made on or after 6 April 2015. The charge is £150 per year for students and £200 per year for all other types of application. A charge is payable for each dependent as well as the main applicant.


Example

An applicant for a five year Tier 2 General visa with a spouse and two children will need to pay a health surcharge of £4,000 (4 applicants x £200 x 5 years) on top of application fees of £4,512. That is £8,512 in total. Plus any lawyer costs.

Information about the charge is available on the gov.uk website and there is also a specific mini site, Immigration Health Surcharge, where payment can be made and the "IHS reference number" required for making immigration applications can be generated.

Liability for the charge is as follows:

• All applications for entry clearance other than visits of 6 months or less

• All applications from within the UK for any period of time other than indefinite leave to remain

Exemptions are:

• Nationals of EEA countries and their family members exercising treaty rights

• Nationals of Australia and New Zealand

• Tier 2 (Intra-company Transfer) visa (and dependants)

• Children under 18 who has been taken into care by a local authority

• Dependants of a member of the UK’s armed forces

• Diplomat or a member of a visiting armed forces and not subject to immigration control

• Dependant of a member of another country’s forces who is exempt from immigration control

• Relevant civilian employee employed by North Atlantic Treaty Organisation (NATO) or the Australian Department of Defence in the UK (or their dependant)

• applying for a visa for the Isle of Man or Channel Islands

• British Overseas Territory citizen resident in the Falkland Islands


https://www.gov.uk/healthcare-immigration-application

http://gov.uk

https://www.immigration-health-surcharge.service.gov.uk/payment/start

• Asylum seeker or applying for humanitarian protection (or you’re their dependant)

• Identified as a victim of human trafficking (or their dependant)

• Home Office’s domestic violence concession applies (or their dependant))

• Article 3 protection cases and their dependents

Some of those exempt still have to register and obtain a reference number and others do not: check the Immigration Health Surcharge at the date of application for the latest updates.

Visitors will have to pay for NHS care at the point of need.

Those who have paid the charge are permitted to access free NHS care to the same extent as permanent residents during the period of their leave. A power is retained to exclude “certain expensive, discretionary treatments” but it was stated there were no plans to make use of this provision (Lord Taylor of Holbeach, Hansard 12 March 2014 : Col 1806).

Banks and building societies

A bank or building society will not be permitted to open a current account for a person who requires leave to enter or remain but does not have it. Status checks must be carried out unless that is not possible because of circumstances that cannot reasonably be regarded as within the control of the bank or building society. The status check must be carried out with a specified anti-fraud organisation or a specified data-matching authority. Commencement for these provisions began to come into effect on 14 July 2014.

Driving licences

These sections require non-EEA nationals to demonstrate that they possess at least six months of leave to enter or remain in order to qualify for a UK


https://www.immigration-health-surcharge.service.gov.uk/payment/start

http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/140312-0002.htm

driving licence issued by the DVLA. Driving licences for those without leave can be revoked. These provisions commenced 14 July 2014.


PART 4: MARRIAGE AND CIVIL PARTNERSHIP

This part of the Act amends the procedure for marriage and civil partnership and creates new powers for duties to report sham marriages and the investigation and preventing of sham marriages. Some of these provisions commenced 14 July 2014 and the rest came into full effect on 20 March 2015.

The Home Office estimates that under the new provisions, 35,000 marriages per year will need to be referred to the Home Office for potential investigation and that 6,000 marriages will be investigated.

What has changed about getting married? Notice of all marriages in England and Wales must be given 28 days in advance of the marriage taking place, replacing the previous notice period of 15 days.


http://www.parliament.uk/documents/impact-assessments/IA13-24B.pdf

Where one of the parties to the marriage is a non-EEA national marrying in the Church of England (or Church in Wales), the parties need to undertake civil preliminaries and are no longer be able to use Banns instead.

The 28 day notice period can be reduced on application where there are compelling reasons to do so because of exceptional circumstances. The Registrar General can still authorise marriage in death bed cases without the notice period being complied with.

Where one of the parties is a non EEA national, both parties to a marriage will need to attend in person to give notice at a designated Registry Office and for notice to be taken specified evidence, including specified evidence of nationality, must be provided.

Where one of the parties is a non EEA national and might gain immigration advantage the notice of marriage will be referred to the Home Office. In addition, if the registrar “has reasonable grounds for suspecting that the marriage will be a sham marriage” (s.24 Immigration Asylum Act 1999) then a section 24 notice is also sent to the Home Office.

If the Home Office decides not to investigate then the Home Office should inform the registrar and the marriage can proceed after the conclusion of the normal 28 day notice period. If the Home Office does decide to investigate further, then the notice period is extended to 70 days to allow time for the investigation.

The Home Office may prevent the marriage taking place where the parties fail to co-operate with the investigation.

Who is affected? Anyone wishing to marry is affected by the extended notice period of 28 days.

All couples involving a non EEA national wishing to marry in the Anglican Church will need to undertake full civil preliminaries.


Any couple where at least one party is subject to immigration control and does not have settled status, or permanent residence under EU law, or is not exempt from immigration control, may be subject to investigation where there are reasonable grounds to suspect a sham.

Risk factors are said by the Home Office to be:

• Is of a nationality at high risk of involvement in a sham, on the basis of objective information and intelligence about sham cases.

• Holds a visa in a category linked by objective information and intelligence to sham cases.

• Has no immigration status or holds leave which is due to expire shortly.

• Has had an application to remain in the UK refused.

• Has previously sponsored another spouse or partner to enter or remain in the UK.

• Is or has been the subject of a credible section 24/24A report, which explains for example how the couple could not communicate in a common language and did not know basic information about each other.

In addition, the evidence requirements may well affect a significant number of those wishing to marry depending on the final form of the implementing regulations. For example, the Home Office had proposed that where a person asserts he or she possesses EU law permanent residence, an otherwise optional permanent residence card must be produced.

What is a “sham marriage”? Sham marriages receive a new definition substituted into section 24 of the Immigration Act 1999:

(5) A marriage (whether or not it is void) is a “sham marriage” if—

(a) either, or both, of the parties to the marriage is not a relevant national,


(b) there is no genuine relationship between the parties to the marriage, and

(c) either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes—

(i) avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;

(ii) enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom.

(6) In subsection (5)—

“relevant national” means—

(a) a British citizen,

(b) a national of an EEA State other than the United Kingdom, or

(c) a national of Switzerland

“United Kingdom immigration law” includes any subordinate legislation concerning the right of relevant nationals to move between and reside in member States.”

So, only foreigners may be involved in a sham marriage, and a precondition is that the relationship is not “genuine”. There is no statutory definition of “genuine”.

Further reading Government background information document (November 2013)

Government impact assessment (September 2013)


https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/256257/Sham_Marriage_and_Civil_Partnerships.pdf

http://www.parliament.uk/documents/impact-assessments/IA13-24B.pdf

PART 5: OISC SCHEME

This part of the Act makes adjustments to the Office of the Immigration Services Commissioner (OISC) scheme that will be of little interest to non OISC regulated advisers and indeed of little interest even to them. They started to come into effect in bits and pieces from 28 July 2014.

Essentially, additional investigatory and enforcement powers are granted to the OISC and the categorisation of OISC advisers is simplified. The current distinction between ‘for profit’ and ‘not for profit’ is abolished and, oddly, the decision on whether a fee for registration with the OISC should be charged is removed from the OISC and will be made by the Secretary of State for the Home Department.


PART 6: CITIZENSHIP AND OTHER MATTERS

Section 65: end to gender bias A positive provision that corrects some historical gender injustices of British nationality law, in particular the different rules that applied to unmarried mothers and unmarried fathers prior to 2006. Came into effect from 6 April 2015.

Context

Before 1 July 2006, the definitions of ‘mother’ and ‘father’ for the purpose of acquisition of British citizenship were different. A mother was always considered to be a child’s mother whether married or unmarried, but a father who was not married to the child’s mother was not included in the definition of ‘parent’ for nationality law purposes. See section 50(9) of the original British Nationality Act 1981 as enacted.

Home Office policy guidance on section 65 is available: Section 65 of the Immigration Act 2014 – Children of British citizen fathers.


https://www.gov.uk/government/publications/children-of-british-citizen-fathers-become-a-british-citizen

Under the new provisions of the Immigration Act 2014, Horace would be entitled to register as a British citizen.

New provisions

The general conditions for benefiting from the new provisions are set out at the new section 4E of the 1981 Act:

4E The general conditions

For the purposes of sections 4F to 4I, a person (“P”) meets the general conditions if—

(a) P was born before 1 July 2006;


Examples

Gertrude is born in the UK on 1 August 2005. Her parents are not married. Her mother is a British citizen but her father is not settled and not British. Gertrude is born a British citizen because her mother is her parent and she therefore satisfies section 1(1) of the British Nationality Act 1981.

***

Horace is also born in the UK on 1 August 2005. His parents are not married. His father is a British citizen but his mother is not settled and not British. Horace is not born British because at his date of birth, his father is not considered a parent for the purposes of British nationality law. He is able to register as British on application before he turns 18, but this is not as of right.

***

Irene is born in the UK on 1 August 2006. Her parents are not married. Her father is a British citizen but her mother is not settled and not British. Irene is born British because at his date of birth, her father is considered a parent for the purposes of British nationality law by virtue of an amendment to the British Nationality Act 1981 effected by the Nationality, Immigration and Asylum Act 2002 but only brought into force on 1 July 2006.

(b) at the time of P’s birth, P’s mother—

(i) was not married, or

(ii) was married to a person other than P’s natural father;

(c) no person is treated as the father of P under section 28 of the Human Fertilisation and Embryology Act 1990; and

(d) P has never been a British citizen.

The following subsections the correct different varieties of injustice.

New section 4F corrects the ineligibility to register under section 1(3), section 3(2), section 3(5), paragraph 4 of Schedule 2, or paragraph 5 of Schedule 2. The new provision to register is not restricted to those under the age of 18. If the relevant provision was section 3(2) then the person becomes a British citizen by descent, and the requirement for parental contents for section 3(5) can be waived under this new provision.

New section 4G corrects the non automatic acquisition of British citizenship (as in the case of Horace in the examples above). This enables a person to register as a British citizen as of right if they meet the conditions in new section 4E and

at any time in the period after commencement, P would have automatically become a British citizen at birth by the operation of any provision of this Act or the British Nationality (Falkland Islands) Act 1983, had P’s mother been married to P’s natural father at the time of P’s birth.

The reference to "commencement" is of course to commencement of the 1981 Act, of which the new section will be a part once commenced. This section therefore applies to anybody, child or adult, who was not registered as British under the discretionary registration scheme applying at the time.

Once again, a beneficiary of the new s.4G will be a British citizen by descent if appropriate. Parental consent is normally required for registration of


children under the age of 18 but may be dispensed with "in the special circumstances of a particular case".

New section 4H applies to Citizens of the United Kingdom and Colonies (the citizenship that applied before the British Nationality Act 1981 came into force and created British citizens and other forms of British nationality) who meet the conditions in s.4E and who:

would have automatically become a British citizen at commencement, by the operation of any provision of this Act, had P’s mother been married to P’s natural father at the time of P’s birth.

Again, if it is British citizenship by descent that would have been acquired then that is what is conferred by the new section.

New section 4I corrects even older gender inequalities in British nationality law. It provides for registration as British citizens for British subjects or former Citizens of the United Kingdom and Colonies affected by gender bias in the law at the time that their countries of residence achieved independence.

New section 4J provides for definitions and interpretation.

Section 66: Citizenship deprivation What is now section 66 of the Act was the provision that attracted the most controversy during the passage of the Bill. It confers on the Secretary of State enhanced citizenship deprivation powers by amending the British Nationality Act 1981. It came into effect on 28 July 2014.

What has changed?

Under the previous regime, a person could not be deprived of citizenship status if that would make the person stateless. Under the new regime, that safeguard is removed, although certain limited conditions must be met. The


relevant provision is section 40 of the British Nationality Act 1981, which is amended by the addition of new subsection 4A to provide as follows:

40 Deprivation of citizenship

(1) In this section a reference to a person's “citizenship status” is a reference to his status as—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British Overseas citizen,

(d) a British National (Overseas),

(e) a British protected person, or

(f) a British subject.

(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.

(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—

(a) fraud,

(b) false representation, or

(c) concealment of a material fact.

(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

(a) the citizenship status results from the person’s naturalisation,


(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and

(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory…

Section 40 goes on to provide for mandatory written notice and for deprivation powers for those who acquired citizenship status at the time of commencement of the British Nationality Act 1981.

Section 66 also as a stand alone provision not amending previous legislation provides that:

In deciding whether to make an order under subsection (2) of section 40 of the British Nationality Act 1981 in a case which falls within subsection (4A) of that Act, the Secretary of State may take account of the manner in which a person conducted him or herself before this section came into force.

A new section 40B is also inserted by the 2014 Act which provides for reviews of the operation of these new deprivation powers.


Example

Maurice is a British citizen by birth, having been born in the UK to a British citizen mother. He has never left the United Kingdom.

He may still be deprived of his British citizenship, as long as he is not made stateless. For example, if Maurice’s father or grandfather was a foreign national and his father or grandfather’s country of nationality operated automatically to confer nationality on Maurice then he could be deprived of his British citizenship.

Analysis

It can be seen that the power to deprive a person of British nationality is a wide ranging one. Any British national at all, no matter how their nationality was acquired can be deprived of their citizenship status if the Secretary of State is satisfied that the person will not be rendered stateless.

This is not new, however: it is the result of previous widening of deprivation powers. What is new is that certain British nationals can be deprived of their citizenship status even if they would be rendered stateless. However, the new power at section 40(4A) is limited to British nationals who acquired their citizenship status by registration or naturalisation. It does not apply to those who acquired their status by birth.

The new section 40(4A) also requires that the deprivation of citizenship is conducive to the public good because the person has, while having that citizenship status, “conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or


Examples

Maurice from the earlier example still cannot be deprived of his citizenship status if he would be rendered stateless because he acquired his citizenship by birth.

***

Nuala was born in the UK but neither of her parents were British or settled at the time of her birth. Soon after Nuala’s birth, when she was only a few months old, they became settled and then later acquired British citizenship by naturalisation. Nuala was registered as a British citizen when she was six months old. She has no other nationality because she was born outside her parents’ country of nationality and was not registered as a national of that country as its nationality laws require. Because she acquired her nationality by registration, she can nevertheless be deprived of British citizenship under the new regime, even though she would be rendered stateless.

any British overseas territory”. Further, the Secretary of State must have “reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.”

The first of these conditions (conduct) will be difficult to challenge in court. The second condition (reasonable grounds to acquire another citizenship status) will be somewhat easier as it is a question of law and fact that is less discretionary in nature and therefore more amenable to court review.

There is also the possibility of a broader challenge to the power itself. The terms of the UN Convention on the Reduction of Statelessness 1961, ratified by the UK, provide that State parties might ‘retain’ the power to render citizens stateless on certain conditions. However, that does not necessarily permit a State party to grant itself a new power to do so having voluntarily surrendered that right in earlier legislation.

Sections 68, 69 and 70: immigration and nationality fees These sections make simplified provision for the charging and setting of immigration and nationality application fees in future. Section 70 came into effect on 28 July 2014 and sections 68 and 69 came into effect on 15 December 2014. As a result, the Home Office will find it easier to amend immigration and nationality fees on a more frequent basis, to offer premium services at an increased cost and (in theory) reduce fees on a concessionary basis. Further, Border Force will be enabled, like other parts of the immigration bureaucracy, to charge fees in excess of a cost recovery basis


for services such as priority queuing and VIP services offered by airports and airlines.

In setting fees, the Secretary of State may ‘only’ have regard to:

(a) the costs of exercising the function;

(b) benefits that the Secretary of State thinks are likely to accrue to any person in connection with the exercise of the function;

(c) the costs of exercising any other function in connection with immigration or nationality;

(d) the promotion of economic growth;

(e) fees charged by or on behalf of governments of other countries in respect of comparable functions;

(f) any international agreement.

The range of factors to be considered is noticeably wide.

The power to charge for additional services at section 70 came into effect on 28 July 2014.

Section 71: duty towards children This section, brought into effect on 28 July 2014, makes clear that section 55 of the 2009 Act (the duty to safeguard and promote the welfare of children) still stands:

For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children).


PART 7: ADMINISTRATIVE MATTERS

This part provides for commencement powers, short title and similar.


SCHEDULES

The Act comes with a number of schedules setting out additional detail and consequential amendments and repeals:

Schedule 1: Enforcement powers

Schedule 2: Meaning of biometric information

Schedule 3: Excluded residential tenancy agreements

Schedule 4: Referral of proposed marriages and civil partnerships in England and Wales

Schedule 5: Sham marriage and civil partnership: administrative regulations

Schedule 6: Information

Schedule 7: Immigration advisers and immigration service providers

Schedule 8: Embarkation checks

Schedule 9: Transitional and consequential provision (including amendments to existing Acts)


http://www.legislation.gov.uk/ukpga/2014/22/schedule/1/enacted









COMMENCEMENT TABLESection Date Order

Section 1 From 20th October 2014 in phases

2014/27712015/371

Section 2 28th July 2014 2014/1820

Section 3 28th July 2014 2014/1820

Section 4 28th July 2014 2014/1820

Section 5 28th July 2014 2014/1820

Section 6 28th July 2014 2014/1820

Section 7 (partially)Section 7 (partially)

28th July 201420th October 2014

2014/18202014/2771

Section 8 28th July 2014 2014/1820

Section 9 28th July 2014 2014/1820

Section 10 28th July 2014 2014/1820

Section 11 28th July 2014 2014/1820

Section 12 28th July 2014 2014/1820

Section 13 28th July 2014 2014/1820

Section 14 28th July 2014 2014/1820

Section 15 From 20th October 2014 in phases

2014/27712015/371

Section 16 20th October 2014 2014/2771


28th July 201420th October 2014

2014/18202014/2771

Section 18 6th April 2015 2015/371

Section 19 28th July 2014 2014/1820

Section 20 (certain areas) 1st December 2014 2014/2771










Section


http://www.legislation.gov.uk/id/uksi/2014/1820


http://www.legislatio




http://www.legislation.gov





http://www.legislation.gov.uk/id/uksi/





Section 32 1st December 2014 2014/2771







Section 39 6 April 2015 2015/874

Section 40 12th December 2014 2014/1943

Section 41 14th July 2014 2014/1820

Section 42 14th July 2014 2014/1820

Section 43 14th July 2014 2014/1820

Section 44 28th July 2014 2014/1820

Section 45 28th July 2014 2014/1820

Section 46 14th July 2014 2014/1820

Section 47 14th July 2014 2014/1820

Section 48 1st March 2015 2015/371

Section 49 (partially)Section 49 (remainder)

20th October 20141st March 2015

2014/27712015/371



2014/27712015/371



2014/27712015/371



2014/27712015/371



2014/27712015/371



2014/27712015/371


Section 57 2nd March 2015 2015/371



Date OrderSection



http://www.legislation.gov.uk/id/uk





Commencement orders as at 6 April 2015:

• Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 (SI

2014/1820)


Section 63 (partially)Section 63 (partially)Section 63 (partially)

28th July 201420th October 201417th November 2014

2014/18202014/27712014/2771

Section 64 28th July 2014 2014/1820

Section 65 6th April 2015 2015/371

Section 66 28th July 2014 2014/1820

Section 67 28th July 2014 2014/1820



Section 70 28th July 2014 2014/1820

Section 71 28th July 2014 2014/1820

Section 73 (partially)Section 73 (partially)Section 73 (partially)Section 73 (partially)Section 73 (partially)Section 73 (partially)Section 73 (partially)

14th July 201428th July 201420th October 201417th November 201415th December 20141st March 20156th April 2015

2014/18202014/18202014/27712014/27712014/27712015/3712015/874

Schedule 1 28th July 2014 2014/1820


Schedule 3 (certain areas) 1st December 2014 2014/2771

Schedule 4 (partially)Schedule 4 (remainder)


2014/27712015/371

Schedule 5 20th October 2014 2014/2771

Schedule 7 (partially)Schedule 7 (partially)Schedule 7 (partially)

28th July 201420th October 201417th November 2014

2014/18202014/27712014/2771


Schedule 9 (partially)Schedule 9 (partially)Schedule 9 (partially)Schedule 9 (partially)Schedule 9 (partially)Schedule 9 (partially)Schedule 9 (partially)

14th July 201428th July 201420th October 201417th November 201415th December 20141st March 20156th April 2015

2014/18202014/1820 2014/27712014/27712014/27712015/3712015/874

Date OrderSection









http://www.legislation.gov.uk/id/uks






• Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI

2014/2711)

• Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order

2015 (SI 2015/371)







Documents

Immigration Act 2014€¦ · section 82 of the Nationality, Immigration and Asylum Act 2002, albeit on human rights or refugee grounds only. Wave One: from 20 October 2014 Section