New Guidance on Implementing Allowed Immigration Appeals
On 04 August 2020, the Implementing allowed appeals Guidance, Version 1.0 was published for Home Office staff. The 18 page document applies to “anyone responsible for implementing an allowed appeal (including litigation caseworkers dealing with judicial reviews related to implementing allowed appeals and Border Force Officers dealing with those returning to the UK after an allowed appeal)”.
Implementation of an Allowed Immigration Appeal
It can be very frustrating for those who have had their immigration appeal allowed to wait for implementation. For some it can mean they continue to be unable to to work, to demonstrate their status in the UK or in some cases they remain separated from family, unable to be reunited until implemented. Those individuals may have already been required to leave the UK in order to appeal or have already been through a protracted appeal process.
“An allowed appeal should be implemented promptly, otherwise the individual may not be able to access benefits and services to which they are entitled, and they may bring a judicial review challenging the delay in implementation”.
This is new guidance and importantly it confirms that an allowed immigration appeal “should be implemented and leave granted in line with the determination’ unless there is an onward appeal or the decision has been reopened’.
The guidance reads that if an immigration appeal is allowed, the grant should normally follow the leave acknowledged in the determination:
“where the determination finds that the relevant Immigration Rules are met, you should grant the leave or entry clearance set out in the relevant rules
- where the determination states that the requirements of a specific policy are met, you should grant the leave or entry clearance set out in the specific policy
- where the appeal is allowed on both protection and human rights grounds, you should grant the most beneficial leave, which will normally be protection-based leave
- where the appeal is allowed on A8 human rights grounds and the appellant does not qualify for leave under the Rules you should normally grant the appropriate leave for A8 cases
- where the appeal was allowed (non-A8) human rights grounds you should apply any relevant policy or, if there is none, consider why the appeal was allowed and grant the appropriate leave, taking into account the guidance on Leave to remain outside the immigration rules
- where a visitor appeal is allowed on human rights grounds, you should grant leave or a visa under the visitor rules, or if those rules are found not to be met, you should grant leave outside the rules which is for the same period and subject to the same conditions as would be granted under the visitor rules
- where an appeal against revocation of protection status is allowed and the appellant is in the UK, you should withdraw the revocation decision which will restore protection status and, if relevant, grant the protection leave which was cancelled at the time of the revocation decision
- where an appeal against revocation of protection status is allowed and the appellant is outside the UK you should withdraw the revocation decision and, if appropriate, inform the appellant that they will need to apply for entry clearance to return to the UK, following the same process as Allowed appeals where the appellant was removed from the UK pending the appeal
where an EEA appeal is allowed both under the EEA Regulations and on human rights grounds, you should only issue the documentation required under the EEA Regulations
- where an appeal under the EU Settlement Scheme is allowed you should grant either pre-settled status or settled status in line with the determination
- where a deprivation of nationality appeal is allowed and a deprivation order has already been made, you should withdraw the deprivation order which will restore nationality (if no deprivation order has yet been made no further action is required)”.
Most importantly the guidance acknowledges that a caseworker cannot decide not to implement a decision, even in circumstances where the Tribunal had no jurisdiction to allow the immigration appeal (and this has not been challenged) or if there is a disagreement with the findings:
“The Tribunal is responsible for interpreting the law. Where the Tribunal allows the appeal any disagreement about the decision must be raised at the appeal or in an onward appeal, otherwise the appeal must be implemented. You cannot refuse to implement an allowed appeal simply because you do not agree with it”.
It is remarkable that a caseworker should need to be reminded that they must implement a decision, but it is useful to have a published position, to avoid any confusion!
Even if an Applicant is to be charged with a criminal conviction or has been charged, but not yet convicted, the guidance confirms that this is not a reason to “deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it” Mersin (2000) EWHC Admin 348).
The guidance encourages at the dependents are considered at the same time, thus saving further time and expense: “For example, where a parent made an application or claim which included dependent children and they were all refused but no appeal was made by the dependent children, or where they have appealed but their appeal has not yet been determined, you should consider whether implementation of the allowed appeal has implications for the dependants and, if so, take the necessary action”.
It is possible there might be some delay if there are no up to date biometrics on the system or the IHS (Immigration Health Surcharge) is payable. A caseworker can ask for biometrics to be enrolled or for payment to be made.
Re-Opening a Decision – Fresh Evidence or Change in Circumstances
The guidance acknowledges:
“Where an appeal is allowed, you should not look for new evidence to undermine the findings of the determination. The principle that the Tribunal’s determination, unless appealed, is binding has been consistently upheld by the courts and it is therefore vital that any checks relating to the evidence are completed before, and addressed at, the appeal”.
If there is fresh evidence permission to appeal out of time should be considered. Even if there is a change of circumstances, an allowed immigration appeal should still normally be implemented.
Allowed Immigration Appeal Where Appellant Removed and Process of Implementing an Allowed Immigration Appeal Outside the UK
Implementation of an appeal where the Appellant was removed or required to leave the UK may cover:
- Those who had claims certified and had to leave the UK;
- The claim fell to be considered elsewhere in the EEA or other safe country;
- The appeal was under the EEA Regulations or the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 and they left whilst the appeal was pending;
- A decision was made under section 10 of the 1999 Act before 6 April 2015 where the appellant only had a right of appeal after they left the UK;
“The responsibility for implementing an allowed appeal falls to the team who would have dealt with the allowed appeal if the person had not left the UK”.
Where an immigration appeal has been allowed on non-protection grounds, the in-country team will establish which Decision Making Centre (DMC) is responsible and the Appellant will be informed that their appeal has been allowed.
The guidance publishes at page 16 a template letter to be issued to visa nationals, who will need to apply to return using the “Return to the UK” option.
“Where there are concerns about the appellant’s eligibility for entry clearance, the DMC will refer the application to the in-country casework team responsible for implementing the allowed appeal for further guidance:”.
In the case of protection appeals “the priority is normally to return the appellant as soon as possible In these situations, it is usually quicker to arrange a visa waiver than to ask the appellant to make an application which will have to go through the relevant DMC”.
The guidance is clear that an immigration appeal must be implemented and therefore goes some way to deal with the issue of delay, which often leads to complaints and further litigation.
Contact our Immigration Appeal Lawyers
For advice and assistance with an immigration appeal or judicial review in the event of delay, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form.