Immigration Bill

Written evidence from Passportia (IB 36)

1. Passportia is an OISC-regulated firm with expertise in complex nationality cases, migration under the rules and human rights claims.

2. This submission focuses on three areas of particular concern; the proposal to remove rights of appeal for certificates of entitlement to a right of abode, the removal of rules-based appeals, and provisions relating to Article 8 EHCR.

Right of Abode appeals (Part 2, Clause 11) to the Tribunal

3. Currently, there is a right of appeal against the refusal to issue a certificate of entitlement to a right of abode (currently s.82(2)(c) NIAA 2002). Clause 11 of the Bill will remove this right of appeal. This appears to have been included as part of a general sweeping away of appeal rights, without adequate consideration of its unique historical significance.

4. The right of abode (previously known as "patriality") is a statutory right. Since the commencement of the British Nationality Act 1981 on 1st January 1983, the only persons possessing the right of abode have been British citizens, and Commonwealth citizens who had that status at commencement. Since British citizens are entitled to a UK passport, in practice it is the second category (certain Commonwealth citizens) that is affected by the proposed reduction in the right of appeal.

5. This is a diminishing category since commencement of the 1981 Act, and consists mainly of two categories:

(i) female Commonwealth citizens who were married to a man with the right of abode in the UK prior to 1st January 1983 through citizenship of the United Kingdom and Colonies ("CUKC"), and

(ii) Commonwealth citizens born to or legally adopted by a parent who at the time of the birth or adoption was a CUKC by birth in the UK.

6. The removal of these appeal rights will affect a special category; citizens of the Commonwealth who established a connection by birth or marriage to the UK prior to 1983.

7. The preservation of the right of abode of a person who had it before 1983 and who did not become a British citizen was an important right established under the Immigration Act 1971 which the British Nationality Act 1983 was expected to preserve. Its preamble states "An Act to make fresh provision about citizenship and nationality and to amend the Immigration Act 1971 as regards the right of abode in the United Kingdom".

8. The only useful form of proof of this status is a "certificate of entitlement". The certificate expires when the passport it was stamped in expires. Thus renewing certificates is an ongoing exercise for its holders. Appeal is only against the refusal to issue a certificate for an existing status the person must have held continuously since before 1983. In sharp contrast, all other categories of appeal are against a refusal to grant (usually for the first time) some form of leave or new status governed by recent and evolving rules.

9. The government have offered no specific explanation as to why they are removing the right of appeal from these people, except for general considerations of cost. The Home Secretary said in the debate on the second reading of the Bill that:

…the Bill will cut abuse of the appeal process. It will streamline the labyrinthine legal process, which at present allows appeals against 17 different  Home Office  decisions-17 different opportunities for immigration lawyers to cash in and for immigrants who should not be here to delay their deportation or removal. By limiting the grounds for appeal to four-only those that engage fundamental rights-we will cut that abuse.

10. But rights of abode are ‘fundamental rights’; they lie at the historic foundations of the modern system of immigration control. The presence of a right of appeal against refusal of a certificate of entitlement does not allow any person to remain in the UK who would otherwise be required to leave, since the class of persons who are not British citizens but have a right of abode, is diminishing since 1st January 1983. Moreover there is no possibility that lodging this type of appeal could constitute an ‘abuse’ or method of artificially extending leave or delaying removal, since an application for a certificate of entitlement is not an application to vary leave within the meaning of s.3C Immigration Act 1971, nor is it an asylum or human rights claim that the Secretary of State would be required to determine before the claimant could be removed.

Grounds of Appeal (Part 2, Clause 11)

11. Under the Immigration Act 1971, the criteria for grants and renewals of leave are substantially devolved to Immigration Rules. Currently it is possible to appeal against an immigration decision on the grounds that it is not in accordance with the immigration rules, or not in accordance with the law (s.84(1) NIAA 2002). Clause 11 of the Bill will remove these grounds of appeal, leaving only grounds of appeal citing protection (asylum) arguments, or human rights.

12. Most types of application under the 1971 Act must satisfy the rules. Most valid refusals could only be on the grounds that the rules were not satisfied. If an appeal on the grounds that the rules were satisfied cannot be made, then the substance of the appeal has been largely excised.

13. The government factsheet claims that ‘the Bill will benefit British citizens and legal migrants…’, but the removal of these grounds of appeal, whilst introducing a new right of appeal against the refusal of a human rights claim, will penalise legal migrants by exposing them to the risk of error by the Home Office, without the safety net of a statutory appeal right.

14. Migrants who have come to the UK lawfully under the immigration rules, whose application for an extension is refused, will have to pay for an administrative review, which will replace the right of appeal to the First-Tier Tribunal. But our experience of administrative review in the context of entry clearance refusals has been that they have never in our experience led to the original decision being overturned, despite this including many instances in which the Tribunal later allowed the appeal.

15. The government will argue that scepticism over the efficacy of administrative review is ill-founded. In our submission there is every reason to be confident that the historically poor performance of the immigration function of the Home Office will continue. In 2006 the Secretary of State admitted the immigration directorate was ‘not fit for purpose’. Seven years later in March 2013 the Secretary of State was abolishing what was by then branded as the ‘UK Border Agency’ stating that

… the performance of what remains of UKBA is still not good enough. The agency struggles with the volume of its casework ... has been a troubled organisation since it was formed in 2008… The agency is often caught up in a vicious cycle of complex law and poor enforcement of its own policies …UKBA has been a troubled organisation for so many years. … it will take many years to clear the backlogs and fix the system ..."

16. Despite this situation, the Bill proposes to transfer a safeguard which exists to protect individuals in respect of Home Office decisions, from the independent court system to within the Home Office itself. Data released by the Tribunal Statistics Quarterly indicates that between 2008/9 and 2013/14 (April – June) between 39% and 48% of managed migration appeals were allowed by the Tribunal. In our view this clearly shows what immigration practitioners have long been arguing; that the initial quality of decision-making by the Home Office is often poor, and there is a need for access to an independent court system to protect individuals’ rights.

17. The Home Secretary in introducing the Bill for a second reading on 22nd October stated:

We need to stand by those who have come here legitimately and who have done the right thing, and make it absolutely clear that we are taking action against those who are here illegally and abusing the system.

18. But the proposals in the Bill belie this. The immigration rules typically prevent a person applying for leave to remain within the rules if they have overstayed by more than 28 days, or entered illegally. Therefore in most cases where a person has no leave to remain at the point of application, they would be advised to present a human rights claim (if any). Meanwhile, if a person has entered under a specific immigration category (e.g. ancestry visa, points-based system or spousal visa) they would if they were applying to extend their leave, be advised to apply for an extension within that category, under the immigration rules, and not a human rights claim. The Bill proposes to remove a right of appeal from those whose application to extend their leave has been refused, unless they have made a human rights claim, and prevent them presenting on appeal an argument that the decision is not in accordance with the immigration rules. Paradoxically, then, Clause 11 is to the advantage of illegal migrants who present human rights claims, and to the disadvantage of legal migrants under the immigration rules.

Article 8 ECHR: public interest considerations (Part 2, Clause 14)

19. Clause 14 seeks to require courts in applying Article 8 ECHR to immigration cases to take account of certain ‘public interest considerations’ set out in the new s.117A-C of the 2002 Act. Our view is that these clauses are not good law, and may be ineffective. If they are effective, and the UK remains within the ECHR, they will create a dual legal system and the possibility that claimants will simply have recourse to Strasbourg directly, contrary to the intention of the Human Rights Act 1998.

20. In the attempt to statutorily prescribe to the judiciary how they are to approach questions of immigration control, the public interest considerations introduced in Clause 14 are comparable to the enforced ‘adverse credibility findings’ proposed in section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. In the case of JT (Cameroon) [2008] EWCA Civ 878 the Court of Appeal effectively interpreted away what appeared to be direct instructions, in statute, to judicial fact-finders, reading them instead as ‘no more than a reminder’ to take certain factors into account.

21. Section 8 of the 2004 Act failed to be effective because it represented an attempt to invade a matter within the competence of judiciary decision-makers, i.e. the factual issue of whether someone was telling the truth in their asylum claim. The new ss.117A-C attempts to invade another matter within the competence of judicial decision-makers, whether in the final analysis a proposed interference with someone’s private and family life is proportionate. The legal motivation to ‘read down’ the new provisions will be even more direct and compelling than with section 8, since there is no proposal to amend the Human Rights Act 1998 itself. Thus courts will be required to interpret the new ss.117A-C compatibly with Convention rights. Insofar as the provisions represent a departure from Strasbourg jurisprudence (i.e. insofar as they have any effect at all and are not simply restating existing case-law), the courts are likely to interpret these provisions in such a way as to deprive them of real effect.

22. However if we are wrong about this, and the courts impose the statutory interpretation proposed by Parliament, claimants would still have the recourse of petitioning Strasbourg directly, which would not be bound by Acts of Parliament. As well as the fact that Strasbourg can award damages, this will potentially result in greater delays to the enforcement of immigration control. 

23. In our view, the more effective way for the Home Office to deal with illegal migrants who rely on Article 8 ECHR as a back-stop, would be to reform their systems to deal with breaches of immigration control, or applications for leave to remain outside the immigration rules, quickly and to handle the resulting appeals effectively. This is not happening at present. The Home Secretary in her speech to the Conservative party conference made the claim that ‘some judges chose to ignore Parliament’ over the Rules-based changes to Article 8 ECHR in July 2012 . But in the leading case on this issue in the Upper Tribunal ( Izuazu [2013] UKUT 45 (IAC)) the Home Office failed to prepare their case properly , leading the Upper Tribunal to comment (para.8):

We, nevertheless, take this opportunity to express our dissatisfaction This was the Secretary of State’s appeal on a profoundly important new issue for determination by this Tribunal with potential impact on many cases being heard daily across the country.  [The Upper Tribunal] needs to give clear and comprehensive guidance to judges sitting throughout the United K ingdom as speedily as possible Not for the first time, we conclude that there has been a failure by UKBA of its duty of co-operation with the Tribunal to advance the over-riding objective of fast, fair and efficient adjudication.

24. We urge Parliament to reject these proposals. The Home Office should be focusing its energies on properly administering the existing system of control, rather than seeking to insulate itself from criticism.

November 2013

Prepared 18th November 2013