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‘Remove First, Appeal Later’ Extended

Today, Commencement Order No.2 brings into force key sections of the Immigration Act 2016. The ‘remove first, appeal later’ policy is substantially extended. The Home Secretary now also has power to cancel leave which has been granted under s.3C of the Immigration Act 1971.

‘Remove First, Appeal Later’

Over the past few years, the government has placed a greater emphasis on ‘out of country’ appeals. Under this process, appeals against deportation have routinely been ‘certified’ by the Home Office, meaning that the appeals can only take place once the appellant has left the United Kingdom.

The Immigration Act 2016 vastly expands the scope of this scheme. Under section 63 of the Immigration Act 2016 (the remove first, appeal later provision) the Home Office now has a power to certify human rights claims not involving asylum or protection issues if it would not breach the applicant’s human rights to do so. The effect of certification is that the appeal may only be brought from outside the UK, leaving the Home Office free to remove a person who pursues a human rights appeal even while the appeal is pending.

A decision to certify a human rights claim may be challenged if removal is likely to cause serious irreversible harm, the test for which is whether or not the removal would breach s.6 of the Human Rights Act.

The extension of the remove first, appeal later policy will make it far more difficult for Home Office immigration decisions to be appealed. It will be far more difficult logistically for individuals to challenge Home Office decisions from outside the country. Access to legal advice will be harder and communication will be difficult.

Leave Under Section 3C

Section 3C of the Immigration Act 1971 is a provision designed to ensure that an applicant’s legal immigration status is not prejudiced by the decision making system. If an individual has made an in-time application, but they are still waiting for a decision to be made they are granted s.3C leave until the decision is made. This can be granted in many different circumstances. An application for further leave, an appeal against a decision not to grant leave and an upcoming hearing in the Immigration tribunal may all serve to allow the applicant to be eligible for s.3C leave.

The way in which s.3C leave operates has now changed. s.62 of the Immigration Act 2016 states that s.3C leave may now be cancelled if the applicant:

(a) has failed to comply with a condition attached to the leave, or

(b) has used or uses deception in seeking leave to remain (whether successfully or not).

This is part of a wider government aim to add extra incentive for compliance with the UK immigration system. Furthermore, if any individual breaches the provisions of s.62, it will be incredibly difficult for them to apply for indefinite leave to remain, as this requires that all the leave they have been granted so far to be continuous and legal.

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