Rights of appeal after the Immigration Act 2014
The Immigration Act 2014 (“the 2014 Act”) reduced the circumstances in which the refusal of an immigration application will give rise to a right of appeal.
The explanatory notes to the 2014 Act state that the Act was intended to restructure rights of appeal to the Immigration Tribunal. Previously, a right of appeal to the Immigration Tribunal existed against any of the 14 different immigration decisions listed in s.82 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). As explained below, whether or not the refusal of an immigration application currently generates a right of appeal depends on the subject matter of the application rather than its categorisation.
What is a right of appeal?
To bring a challenge before the Immigration Tribunal you must have a right of appeal. Under s.82(1) of the 2002 Act (as amended by s.15(2) of the 2014 Act) a person may appeal to the Immigration Tribunal where there has been a decision to:
- refuse a protection claim
- refuse a human rights claim
- revoke protection status
What does refusing a protection claim mean?
The definition of a protection claim is to be found in s.82(2)(a) of the 2002 Act which states as follows:
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
The UK would potentially breach its obligations under the Refugee Convention where removing or deporting a person from the UK would result in that person facing persecution on the grounds of their race, religion, nationality, political opinion or membership of a particular social group.
Paragraph 339C of the Immigration Rules sets out the criteria for humanitarian protection. These are that:
(i) the person is in the United Kingdom;
(ii) they do not qualify as a refugee;
(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and
(iv) they are not excluded from a grant of humanitarian protection.
A protection claim is considered to be refused when the Secretary of State decides that removing a person from the UK would not breach the UK’s obligations under the Refugee Convention or would not breach the UK’s obligations in relation to persons eligible for a grant of humanitarian protection.
Find out more about the requirements for humanitarian protection.
What is a human rights claim?
The second way that a person can bring a challenge before a Tribunal is where the Secretary of State refuses their human rights claim.
Human rights such as the right to life (Art.2 ECHR), the right not to be subjected to torture or to inhuman or degrading treatment or punishment (Art.3 ECHR) and respect for private and family life (Art.8 ECHR) are often engaged in immigration applications.
Human rights claims are often made in the context of spouse visa, adult dependant relative, and long residence applications.
However, there are occasions where it is not straightforward as to whether a human right is engaged. Let us take family life as an example.
The Commission of Human Rights in S v United Kingdom (1984) 40 DR 196 stated at page 198 that, in general, family life is engaged where the case involves cohabiting dependents, such as ‘parents and their dependent, minor children’.
However, the Commission went on to say that relationships between adults require ‘further elements of dependency, involving more than the normal emotional ties’ if such relationships are to engage the right to family life.
Furthermore, Lady Justice Arden commented at paragraph 24 of Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 that ‘there is no presumption that a person has a family life, even with the members of a person’s immediate family’. She went on to say that the court has to scrutinise the relevant factors (such as the age of the appellant and the links between the appellant and the relative) to determine whether there is family life.
Home Office guidance on rights of appeal, published 30 July 2018, states that caseworkers must determine whether an applicant’s human rights are engaged. But, at page 18, the guidance suggests that seeking leave to remain in the UK on the basis of a parent-child relationship constitutes a human rights claim; so, in practice, certain relationships will normally engage the right to family life.
To discuss whether you have a right of appeal with one of our immigration barristers, contact our UK lawyers on 0203 617 9173 or complete our enquiry form below.
Revoking a protection claim
Revoking protection status also gives rise to a right of appeal. Section 82(2)(c) of the 2002 Act states that:
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
So, if the Secretary of State decides to remove your protection status you will have a right of appeal.
Certification of a human rights claim
Finally, the Secretary of State has the power to certify a protection or human rights claim as ‘clearly unfounded’ under s.94 of the 2002 Act. This is where the claim is deemed to be without substance. Unless the ‘clearly unfounded’ certificate is effectively challenged, any appeal against the refusal decision can only be brought once the applicant has left the UK.
Contact our Immigration Barristers
For assistance with an appeal following a refusal, removal decision or deportation order contact our specialist immigration barristers on 0203 617 9173 or via the enquiry form below.
