Select Committee on Constitutional Affairs Second Report

7 Non-suspensive appeals

72. Appeals which are exercisable from within the UK generally have a suspensive effect: they suspend any requirement to leave the UK and/or the power to remove. This contrasts with those appeals which can only be exercised from outside the UK, i.e. after removal, and are therefore described as "non-suspensive". (Non-suspensive appeals are also referred to as "out-of-country" appeals). Asylum seekers whose claims are certified to be "clearly unfounded" by the Home Office may only appeal against that decision after removal from UK—generally to the country in which they claim to fear persecution.[65]

73. The majority of appellants have the right to remain in the country until their appeal process is concluded. In recent years, however, the category of non-suspensive appeals has been gradually expanded. For example, the Asylum and Immigration Act 1996 removed the in-country right of appeal for certain 'safe third country' cases (involving EU member states and certain 'designated' states). Similar provisions were passed in the Immigration and Asylum Act 1999.

74. The Nationality Immigration and Asylum Act 2002 has added to the categories of non-suspensive appeal by establishing a new category of 'clearly unfounded' claims. This means that any appeal against a decision on an asylum/human rights claim must now be made outside the UK, if the Secretary of State has certified that the claim is clearly unfounded.[66] Claims from those entitled to live in particular states will be automatically certified, unless the Secretary of State is satisfied that the case is not clearly unfounded. The ten EU accession states were listed in the 2002 Act for this purpose.

75. The 2002 Act also provided an affirmative order-making power under which a State or part of a State may be added to the list if the following conditions are met:

  • there is in general no serious risk of persecution of persons entitled to reside in that State or part of a state, and
  • removal to that State or part of a state of persons entitled to reside there will not in general contravene the United Kingdom's obligations under the Human Rights Convention.[67]

76. The Asylum and Immigration (Treatment of Claimants, etc.) Bill proposes to amend this provision to extend the order-making power. If implemented, the Secretary of State will be able to add a State (or part of a State) if it is considered to be 'safe' for a particular category of person to reside there, even if it is not 'safe' for others to do so. Such groups may be categorised by reference to a number of factors listed in the Bill, including gender, race, religion, nationality etc.[68]


77. The provision in the Bill for adding to non-suspensive appeals does not square with the 1998 statement from the Government:

"The Government considers that the in-country right of appeal should continue for all asylum cases (except certain third country cases). Given the nature of the asylum claim a right of appeal after removal is not an effective remedy. A proposal to return a person to a country in which he claimed to have a well-founded fear of persecution without a right of appeal would almost certainly be inconsistent with our international obligations."[69]

78. In its Annual Report of 2001/02, the Council on Tribunals stated that the introduction of non-suspensive appeals was "capable of leading to unfairness and injustice". The Council highlighted some of the "considerable practical problems" that may result:

"The requirement to conduct appeals from abroad will make it more difficult for adjudicators to assess the evidence of appellants. It will also make it more difficult for appellants to have face-to-face discussions with their advisers and to present their cases satisfactorily. Costs will inevitably be greater. And there could be serious problems with regard to the status and safety of tribunal users in the countries form which they are appealing."[70]

These problems are, of course, experienced by applicants in immigration or family visits applications made in the home country of the applicants.

79. Mr Justice Richards has also described non-suspensive (out-of-country) appeals as "plainly a very serious disadvantage as compared with an in-country appeal."[71] As many asylum appeals turn on questions of credibility, it is particularly disadvantageous for the applicant to be absent from the oral hearing. Research into the relative success rates of oral as opposed to paper based appeal in family visitor cases has shown that oral appeals have a higher rate of success, particularly when the sponsor is available to give oral evidence.[72]

Success rate

80. In its memorandum to this inquiry, the DCA stated:

"As of 17 April 2003, provisional IAA figures show that 56 out-of-country appeals had been lodged with the IAA. 42 of those have so far been dismissed and one withdrawn. None has been successful."[73]

81. We recommend that the Government investigate the fairness of the non-suspensive appeal system, given the extremely low success rate of appellants' appeals under that system.

82. We note that the 2002 Act makes provision for an independent monitor of non-suspensive appeals. The appointment of this person was announced on Wednesday 11 February.[74] We recommend that the list of countries, from which the Secretary of State can certify claims as clearly unfounded, should not be extended until after the independent monitor has been consulted.

65   S 94 Nationality, Immigration and Asylum Act 2002 Back

66   ibid Back

67   Albania, Bulgaria, Serbia and Montenegro, Jamaica, Macedonia, Moldova, Romania, Bangladesh, Bolivia, Brazil, Ecuador, Sri Lanka, South Africa and Ukraine have been added to the list under this provision Back

68   Clause 12 Back

69   Home Office and Lord Chancellor's Department consultation paper, Review of Appeals, July 1998, para 5.2 Back

70   Council on Tribunals, Annual Report 2001/02, pp 30-31 Back

71   R (Razgar) v Secretary of State for the Home Department [2002] EWHC Admin 2554 at para 1 Back

72   H. Crawley and others, Family Visitor Appeals: An Evaluation of the Decision to Appeal and Disparities in Success Rates by Appeal Type (London, Home Office, 2003) Back

73   Ev 141 Back

74   In a written statement by the Minister for Citizenship and Immigration (Ms Beverley Hughes), HC Deb, 11 February 2004, col 69WS Back

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