3 Appeal rights
Background
28. Part 2 of the Bill makes provision which
significantly limits rights of appeal against immigration decisions.[19]
It also requires courts and tribunals to have regard to certain
public interest considerations when determining whether an immigration
decision is compatible with a person's right to respect for private
and family life in Article 8 ECHR.[20]
These provisions engage the common law right of access to a court
or tribunal, and the right to an effective remedy in relation
to arguable Convention violations in Article 13 ECHR (in conjunction
with Articles 2, 3, 6(1) and 8 ECHR). We wrote to the Government
about four aspects of these proposals in particular which in our
view raise significant human rights issues.
Removal of appeal rights
29. Clause 11 of the Bill drastically reduces
rights of appeal against immigration decisions. Under the current
law, a statutory right to appeal to the Immigration and Asylum
Chamber of the First Tier Tribunal exists against any of the 14
different immigration decisions listed in s. 82 of the Nationality,
Immigration and Asylum Act 2002, including refusals to vary leave
to enter and remain and decisions to remove and deport. There
are also currently rights of appeal against decisions to reject
an asylum claim or revoke refugee status in certain circumstances.[21]
30. The Bill radically restructures rights of
appeal to the Tribunal, by limiting both the range of decisions
in respect of which an appeal lies to the Tribunal and the grounds
that can be raised on such an appeal. Clause 11 repeals existing
rights of appeal[22]
and replaces them with a right of appeal to the Tribunal against
three types of decision only:
(1) a refusal of an asylum or humanitarian protection
claim;
(2) a refusal of a human rights claim; and
(3) a revocation of refugee status or humanitarian
protection.[23]
31. The Bill also specifies the grounds on which
such statutory appeals can be brought.[24]
In short, an appeal may only be brought on the ground that the
decision in question is unlawful under s. 6 of the Human Rights
Act, is in breach of the UK's obligations under the Refugee Convention,
or is in breach of the UK's obligations to those eligible for
a grant of humanitarian protection.
32. The effect of these provisions is that there
is no longer any statutory right of appeal to the Tribunal on
other public law grounds, such as that the immigration authorities
have acted unlawfully because they have misinterpreted or misapplied
the legislation or the Immigration Rules, or have failed to have
regard to the need to safeguard and promote the welfare of children
in accordance with the duty in s. 55 of the 2009 Act or the Secretary
of State's guidance on that duty, or otherwise acted ultra
vires. The Explanatory Notes to the Bill state that, where
an application is refused and there is no right of appeal, or
where a person's leave is curtailed or revoked, the applicant
"may be able to apply for an administrative review".[25]
The Immigration Rules will set out when an applicant may seek
an administrative review. We are not aware that any further information
has been provided, however, about the proposed system of administrative
review.
33. The Government's ECHR Memorandum argues that
removing existing rights of appeal against immigration decisions
does not breach the Human Rights Act or the UK's obligations under
the ECHR, because the right of access to a court under Article
6(1) ECHR does not apply to immigration decisions, and clause
11 of the Bill reflects the legal obligations to provide effective
remedies under the ECHR, EU law, the Refugee Convention and the
law of humanitarian protection, by ensuring that a right of appeal
on these grounds remains.[26]
34. The Government is correct that the right
of access to court under Article 6(1) ECHR is not relevant to
our scrutiny of the human rights compatibility of these provisions,
because the European Court of Human Rights has held that Article
6(1) does not apply to immigration decisions.[27]
However, the common law right of access to court is more extensive
than the right under Article 6 ECHR, and has been interpreted
by the courts as including the right of access to an administrative
tribunal. In Saleem v Secretary of State for the Home Department,
Hale LJ (as she then was) said:[28]
For an asylum seeker who is the subject of an adverse
decision by the Secretary of State and who has failed to have
that decision reversed by the Special Adjudicator, the right to
have access to the Tribunal is a very important right. The nature
of the proceedings before the Tribunal if leave to appeal is granted,
is akin to proceedings before a court. The importance and the
nature of the proceedings before the Tribunal are reflected by
the provision in the Act that legal representation for the asylum
seeker before the Tribunal is to be assured. In my judgment, the
right created by section 20 of the Act is a basic or fundamental
right, akin to the right of access to courts of law.
[...]
Mr Burnett QC for the Secretary of State argues that
it was wrong to apply the principles in Leech and Witham
to this case. They dealt with the fundamental common law right
of access to a court. Before 1993 asylum seekers had no right
of appeal to the immigration appellate authorities at all. It
was the responsibility of the Secretary of State to ensure that
this country complied with our obligations under the Geneva Convention
of 1951. Nor is there a `right' to asylum in the same way that
there are rights and obligations determined in the ordinary courts.
It has not, at least as yet, been identified as a `civil right'
for the purpose of the right to a fair trial enshrined in article
6(1) of the European Convention on Human Rights.
I am quite unable to accept that argument. There
are now a large number of tribunals operating in a large number
of specialist fields. Their subject matter is often just as important
to the citizen as that determined in the ordinary courts. Their
determinations are no less binding than those of the ordinary
courts: the only difference is that tribunals have no direct powers
of enforcement and, in the rare cases where this is needed, their
decisions are enforced in the ordinary courts. In certain types
of dispute between private persons, tribunals are established
because of their perceived advantages in procedure and personnel.
In disputes between citizen and state they are established because
of the perceived need for independent adjudication of the merits
and to reduce resort to judicial review. This was undoubtedly
the motivation for grafting asylum cases onto the immigration
appeals system in 1993. In this day and age a right of access
to a tribunal or other adjudicative mechanism established by the
state is just as important and fundamental as a right of access
to the ordinary courts.
35. The Bill's removal of rights of appeal against
immigration decisions on other public law grounds potentially
represents a departure from this common law right of access to
a court or tribunal to challenge unlawful administrative decisions.
It also requires careful scrutiny to ascertain whether it is
compatible with the right to an effective remedy under the ECHR,
the Refugee Convention and the law of humanitarian protection,
an obligation which the Government accepts.
36. A high proportion of appeals to the First
Tier Tribunal currently succeed. On the Government's own statistics,
50% of entry clearance appeals, 49% of Managed Migration appeals
and 32% of deportation appeals succeeded in 2012-13.[29]
In light of the obvious and well-documented concerns about the
shortcomings in the quality of initial decision-making by the
UK Border Agency, we asked the Government why the proposed removal
of appeal rights is compatible with the common law right of access
to a court or tribunal.
37. The Government replied that the changes made
to appeal rights in Part 2 of the Bill are compatible with the
common law right because access to a court or tribunal remains
available to all migrants, whether by way of the appeal rights
which remain even after the amendments made by the Bill, or judicial
review. It says that the "new administrative review process"
will correct case-working errors where a refusal decision does
not trigger an appeal right, and there is nothing to prevent an
individual from seeking judicial review following such an administrative
review, or where administrative review is not available. The
Government does not accept that the common law right of access
to a court or tribunal is infringed by the appeal provisions in
the Bill, because that common law right does not require access
to a full merits-based review on appeal in all cases. The Government
accepts that the access to a court or tribunal must offer an effective
remedy against the lawfulness of the decision complained of, but
it considers that judicial review provides such an effective remedy.
38. The Government's response to our question
does not consider how its reliance on the availability of judicial
review as an effective remedy for those wishing to challenge the
lawfulness of immigration decisions is affected by the Government's
other proposals to reform both legal aid and judicial review itself.
In particular, we have heard evidence in the course of our inquiry
into the legal aid proposals that the proposed residence test
for eligibility for legal aid will have a very significant impact
on the practical availability of judicial review to challenge
immigration and asylum decisions.[30]
We are also currently considering the impact on effective access
to judicial review of various of the Government's proposed reforms
to that jurisdiction, such as the practical effect of the proposal
that public funding should only be available in cases where permission
is granted, subject to an exceptional discretion exercisable by
the Legal Aid Agency, on which we will be reporting in due course.
39. We are concerned that the
Bill's significant limitation of appeal rights against immigration
and asylum decisions is not compatible with the common law right
of access to a court or tribunal in relation to unlawful immigration
decisions, and the right to an effective remedy, particularly
in light of the following:
- the relatively
high proportion of such appeals which currently succeed due to
the well-documented shortcomings in the quality of decision-making
by the UK Border Agency;
- the importance of appeals as
a means of enforcing the children duty in s. 55 of the Borders,
Citzenship and Immigration Act 2009;
- the lack of information about
the proposed new system of administrative review; and
- the likely cumulative impact
of proposed changes to legal aid and judicial review on the practical
effectiveness of that remedy for those seeking to challenge the
lawfulness of immigration decisions on grounds other than those
covered by the surviving rights of appeal.
In our view, when viewed in this
broader context, limiting rights of appeal to the extent that
they are restricted in the Bill constitutes a serious threat to
the practical ability to access the legal system to challenge
unlawful immigration and asylum decisions.
Limits on Tribunal's power to
consider "new matters"
40. This Part of the Bill would also prevent
the First Tier Tribunal from considering "new matters"
that have not previously been considered by the Secretary of State
in the context of a human rights or protection claim, "unless
the Secretary of State has given the Tribunal consent to do so".[31]
A "new matter" is defined as being a ground of appeal
within the amended appeal rights provided by the 2002 Act, "or
any reason the appellant has for wishing to enter or remain in
the UK", and a matter that the Secretary of State has not
previously considered. The purpose of the provision is "to
prevent appellants from raising new grounds before the Tribunal
before the Secretary of State has had a chance to consider them."[32]
41. The Government's ECHR Memorandum asserts
that this provision does not breach the Human Rights Act or the
UK's obligations under the Refugee Convention because "an
effective remedy is provided where grounds are raised at the appropriate
time". However, human rights law requires immigration decisions
to be taken having regard to all relevant facts at the time of
the decision (including any appeal), and we are concerned that
making the Secretary of State, rather than an independent court
or tribunal, the gatekeeper of whether a fresh matter has been
raised at the appropriate time is arguably not compatible with
the appellant's common law right of access to an independent court
or tribunal and their right to an effective remedy.
42. In view of the frequency with which fresh
matters are raised in immigration cases before an appeal is finally
determined, and the importance of ensuring that immigration decisions
are taken having regard to all relevant facts at the time of final
decision (including on appeal), we asked the Government to explain
why in the Government's view it is compatible with the right of
access to court, the principle of equality of arms and the rule
of law for the Secretary of State to have the final say on whether
a fresh matter is considered by the Tribunal. We also asked whether
there are any examples from other statutory contexts of provisions
which prevent a court or tribunal from considering fresh matters
unless the Secretary of State has given the court or tribunal
permission to do so.
43. The Government's response agrees that there
are circumstances where new evidence that supports grounds of
appeal or reasons for wanting to enter or remain in the UK which
have not previously been considered by the Secretary of State
should be capable of being raised for the first time at the appeal,
to ensure that the tribunal is able to make a decision having
regard to all relevant facts and evidence before it at the time
the appeal is determined. However, the Government seeks to distinguish
between new evidence and new grounds or reasons for wanting to
enter or remain in the UK. It says that the limitation on the
matters which may be considered by the Tribunal is intended to
apply only to such new grounds or reasons. The purpose of the
consent provision is said to be "to balance the continuation
of a one-stop appeals process, whereby all appealable decisions
are resolved in a single appeal, with the position of the Secretary
of State as primary decision-maker." The Secretary of State
should be able to consider a claim before it is determined by
the Tribunal, and the Tribunal should only be able to decide matters
and grounds that the Secretary of State has not previously considered
where the Secretary of State consents to it doing so.
44. In the Government's view, the Secretary of
State's power to provide or withhold consent therefore does not
prevent access to the courts, offend against the principle of
equality of arms or the rule of law—it is more a matter
of timing: "it merely determines when the ground or reason
for wishing to enter or remain in the UK is considered by the
tribunal." The Government accepts that the form of the provision
is unusual, but argues that the substance of what it is seeking
to do is not: it is imposing boundaries on what the court can
consider in dealing with proceedings before it. However, "as
far as the Home Office is aware there are no other similar provisions
in other statutory contexts."
45. We recognise that this provision is permissive
rather than directive (the Tribunal is not required to disregard
the new matter, but may do so if the Secretary of State consents),
and that it seeks to distinguish between new evidence and new
grounds. Nevertheless, we remain concerned, even after considering
the Minister's explanation of the purpose of the provision, about
whether it is compatible with the right of access to court, the
principle of equality of arms and the rule of law for the court's
power to consider a new matter to depend on the "consent"
of the Secretary of State. We are struck by the fact that the
Government could not identify any other similar provisions in
other statutory contexts, which confirms our sense that this provision
crosses a line which has not previously been crossed in relation
to an aspect of a tribunal's jurisdiction being dependent on the
consent of the Minister who is the respondent to the appeal.
46. New matters frequently arise on appeals and
this may often not be due to any fault of the appellant: it may
be because circumstances have changed, or information has become
available, or more is known about the basis for the decision appealed
against, or even that the appellant was not well advised at the
time of lodging the appeal. Any new matter raised on an appeal
must still be within the scope of the Tribunal's jurisdiction,
and the Tribunal already has powers to deal with raising matters
which are abuse of its process. In
our view, the Tribunal itself, not the Secretary of State, should
decide whether it is within its jurisdiction to consider a new
matter raised on an appeal. We would expect the Tribunal, in the
exercise of its inherent power to prevent abuse of its own process,
to permit a new matter to be raised only if there were good reasons
for not raising the matter before the Secretary of State.
47. In view of the admitted
novelty of new s. 85(5) and (6) of the Nationality, Immigration
and Asylum Act 2002, inserted by clause 11 of the Bill, we recommend
that the Government amends the Bill to achieve its purpose in
a way which does not appear to make the scope of the tribunal's
jurisdiction depend on the consent of one of the parties to the
appeal before it, but leaves to the Tribunal the question of whether
or not it may consider a new matter.
Out-of-country human rights appeals
48. Clause 12 of the Bill empowers the Secretary
of State to certify that to require an appellant who is a foreign
criminal to leave the UK before their appeal is determined would
not cause "serious irreversible harm", in which case
the person may only appeal from outside the UK.[33]
49. The Government's ECHR Memorandum states that
this is compatible with the ECHR because the European Court of
Human Rights has acknowledged that not all challenges to removal
decisions need to be in-country.[34]
However, as the Government's Memorandum also correctly acknowledges,
in all cases there must be some suspensive means of challenging
the Secretary of State's assessment that removal prior to a substantive
appeal being heard would not breach a person's human rights.
50. For this, the Government relies on the continued
availability of judicial review: "this is and will continue
to be achieved in the UK by adherence to the common law principles
of access to justice under which those subject to a removal decision
will, subject to limited exceptions, have enough time to seek
legal advice and lodge an application for judicial review before
removal is carried out."[35]
It refers to the Court of Appeal's recent restatement of those
common law principles in the case of Medical Justice v Secretary
of State for the Home Department.[36]
The case relied on by the Government as demonstrating the
relevant common law principles was brought by an NGO, Medical
Justice for Torture Victims, which would not be possible under
the Government's proposed changes to the law of standing to bring
judicial review challenges.
51. We asked the Government whether judicial
review will provide a practical and effective means of challenging
the Secretary of State's certification that an appeal can be heard
out-of-country, bearing in mind the proposed changes to the availability
of legal aid, such as the proposed residence test, and the proposed
changes to judicial review which will also restrict its availability.
52. The Government replied that it believes that
judicial review will provide a practical and effective means of
challenging the Secretary of State's certificate. It says that
the cases affected by the new certification power will primarily
be human rights claims made on the basis of Article 8 ECHR. The
proposed residence test will not affect the effectiveness of judicial
review as a means of challenging certification, because "it
is already the case that individuals seeking to appeal on the
basis of Article 8 are already unable in practice to access civil
legal aid." It goes on to provide a general justification
for considering reforms to judicial review (to "reduce the
burden unmeritorious claims place on the courts and speed up the
process for persons who have proper grounds and a genuine case
to put"), but it does not consider whether any specific proposals
will make it more difficult in practice for judicial review to
be invoked to challenge a certificate that a human rights claim
can be appealed against from out of country.
53. We are not satisfied with
the Government's reliance on the continued availability of judicial
review to challenge the Secretary of State's certification that
a human rights appeal can be heard out of country, having regard
to the unavailability of civil legal aid to bring such a claim
and the proposed reforms of judicial review.
Public interest considerations
in Article 8 claims
54. Clause 14 of the Bill requires a court or
tribunal to have regard to certain enumerated public interest
considerations when determining whether an immigration decision
is compatible with a person's right to respect for private and
family life in Article 8 ECHR, including a bespoke set of such
public interest considerations in cases involving foreign criminals.[37]
55. There is nothing inherently incompatible
with the Convention in Parliament spelling out in primary or subordinate
legislation its detailed understanding of the requirements of
relevant Convention rights in particular contexts. Indeed, such
an exercise could be considered to be Parliament's fulfilment
of the important obligation imposed upon it by the principle of
subsidiarity: to take primary responsibility for the protection
of Convention rights in national law, by providing a detailed
legal framework designed to give effect to Convention rights in
particular contexts. Such legislation should not, however, purport
to determine in advance claims that Convention rights have been
violated in particular cases, because that would be a usurpation
of the judicial function to determine individual cases. The guidance
provided to courts or tribunals should also accurately reflect
the relevant Convention case-law, and should not be incompatible
with any other international obligations.
56. The provisions in the Bill
which seek to guide courts and tribunals in their determination
of Article 8 claims in immigration cases do not purport to go
so far as to determine individual applications in advance or to
oust the courts' jurisdiction. They merely require courts and
tribunals to have regard to a list of public interest considerations
when deciding whether an interference with a person's right to
respect for private and family life is justified under Article
8(2) ECHR. The new statutory provision does not seek to make
the prescribed public interest considerations exhaustive, or to
exclude other considerations from being taken into account when
determining the Article 8 compatibility question: the court or
tribunal "must (in particular) have regard to" the public
interest considerations listed in the provision.[38]
57. Like the Immigration Rules which these statutory
provisions replace, as interpreted by the Court of Appeal in the
recent case of MF (Nigeria) v Secretary of State for the Home
Department,[39] the
scheme of the legislation therefore "expressly contemplates
a weighing of the public interest in deportation against 'other
factors'", which the Court of Appeal in that case considered
"must be a reference to all other factors which are relevant
to proportionality and entails an implicit requirement that they
are to be taken into account." The
Government's express acceptance in the case of MF that the Immigration
Rules should be interpreted consistently with the Strasbourg jurisprudence
on Article 8 ECHR therefore applies equally to the provisions
in the Bill and on that basis we are satisfied that the provisions
introduced by clause 14 of the Bill are not on their face incompatible
with Article 8 ECHR.
58. The provisions do, however, indicate the
"weight" to be given to certain considerations, by providing
that "little weight" should be given to a private life
established by a person at a time when he is in the UK unlawfully
or when his immigration status is precarious.[40]
We asked the Government whether it could point to any other examples
of statutory provisions in which Parliament has sought to prescribe
the weight to be given by courts and tribunals to particular considerations.
The Government's response says that when establishing a court
or tribunal's jurisdiction, legislation can and commonly does
"impose boundaries upon the powers of the court in exercising
that jurisdiction", including by making provision about particular
matters which a court must take into account, and it gives some
specific examples of such measures, including ss. 12 and 13 of
the Human Rights Act 1998.
59. The Government says that legislation can
also stop a court from taking certain matters into account at
all, and it gives the example of the Government's recent amendment
to the Extradition Act 2003, which requires an extradition judge
to have regard only to the specified matters relating to the interests
of justice. "Although the language of such legislation is
not in terms of the weight which is to be given to particular
matters, the effect is the same as saying that no weight is to
be given to matters which may not be taken into account."
The Government has not, however, provided any examples of other
legislation in which a court or tribunal is required to have regard
to a consideration which purports to prescribe the weight that
should be given to that consideration. Liberty has questioned
whether such a legislative provision is compatible with the judicial
function.
60. We recognise that legislation which defines
or amends the jurisdiction of a court or tribunal necessarily
prescribes the boundaries of that judicial body's jurisdiction,
which determines what considerations are relevant and irrelevant.
We also acknowledge that Parliament often establishes statutory
presumptions to be applied by courts and tribunals when they are
determining individual cases, and occasionally directs that "particular
weight" is to be given to a particular consideration in a
judicial weighing exercise. Nevertheless, we
are uneasy about a statutory provision which purports to tell
courts and tribunals that "little weight" should be
given to a particular consideration in such a judicial balancing
exercise. That appears to us to be a significant legislative
trespass into the judicial function. We note that the Government
did not provide us with any other examples of such statutory provisions,
which suggests that this approach may be unprecedented. We recommend
that the Bill be amended in a way which retains as relevant public
interest considerations whether a private life or relationship
were established at a time when the person was in the UK unlawfully
or when their immigration status was precarious, but omits the
direction about the weight to be given to the person's private
life or relationship.
61. We also asked the Government how tests in
the Bill, such as whether "it would not be reasonable to
expect the child to leave the UK"[41]
and whether the effect of deportation on a partner or child would
be "unduly harsh",[42]
fit with the high threshold "necessity" test under Article
8 ECHR or the requirement in Article 3 UNCRC that the best interests
of the child must be "a primary consideration". We
also asked how confining the definition of "qualifying child"
to children who are either British citizens or who have lived
in the UK continuously for more than seven years[43]
is compatible with the UK's obligations under the UNCRC, which
are not qualified according to any such distinctions.
62. The Government's principal response to these
questions is that all of the tests identified in our letter "have
regard to" or "take into account" the "children
duty" in s. 55 of the Borders, Citizenship and Immigration
Act 2009, which requires the Secretary of State to make arrangements
for ensuring that her immigration, nationality and asylum functions
are discharged having regard to the need to safeguard and promote
the welfare of children who are in the UK. The response says
that nothing in the Bill changes that duty, and this ensures that
consideration of the best interests of the child as a primary
consideration will always be given on the facts of the individual
case, which satisfies the requirements of both Article 3 UNCRC
and Article 8 ECHR (which require the best interests of the child
to be taken into account in the overall proportionality exercise).
63. We welcome the Government's
clarification of its intention that nothing in the Bill is intended
to change or derogate in any way from the children duty in s.
55 of the Borders, Citizenship and Immigration Act 2009. However,
the Government has not explained how in practice the provisions
in the Bill are to be read alongside the s. 55 duty. Without
such explanation there is a danger that front-line immigration
officials administering the legal regime will be unclear about
the relationship between the children duty in s. 55 and the new
tests introduced by the Bill which use different and unfamiliar
language. We recommend that new guidance be issued to ensure
that the Government's stated intention about the unaffected status
of the children duty is in fact achieved in practice. We also
ask the Government to confirm that it intends that the s. 55 children
duty also applies to children who are not within the Bill's definition
of a "qualifying child", as we believe it should.
19 Clauses 11 and 12 and Schedule 8. Back
20
Clause 14. Back
21
Under ss. 83 and 83A Nationality, Immigration and Asylum Act 2002. Back
22
The Bill does not repeal the current right of appeal against a
decision to refuse an application based on a right under the Community
Treaties (provided for by regulations under s. 109 of the 2002
Act: see SI 2006/2003).Rights of appeal in EU cases are therefore
unaffected by the Bill. Back
23
Clause 11(2), substituting a new s. 82 in the Nationality, Immigration
and Asylum Act 2002. Back
24
Clause 11(4), substituting a new s. 84 in the Nationality, Immigration
and Asylum Act 2002. Back
25
Explanatory Notes, para. 73. Back
26
ECHR Memorandum, paras 59-60. Back
27
See e.g. Maouia v France (2001) 33 EHRR 42. Back
28
[2001] WLR 443 Back
29
Home Office, Impact Assessment of Reforming Immigration Appeal
Rights (15 July 2013). Back
30
http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/inquiries/parliament-2010/the-implications-for-access-to-justice-of-the-governments-proposals-to-reform-legal-aid/
Back
31
Clause 11(5), inserting new s. 85(5) and (6) into the Nationality,
Immigration and Asylum Act 2002. Back
32
Explanatory Notes, para. 76. Back
33
Clause 12, inserting new s. 92 in Nationality, Immigration and
Asylum Act 2002. Back
34
ECHR Memorandum, para. 63. Back
35
ECHR Memorandum, para. 65. Back
36
[2011] EWCA Civ 1710. Back
37
Clause 14, inserting a new Part 5A (sections 117A-D) into the
Nationality, Immigration and Asylum Act 2002. Back
38
New s. 117(2) of the 2002 Act. Back
39
[2013] EWCA Civ 1192 (8 October 2013) at para. 39. Back
40
New s. 117B(4) and (5). Back
41
New s. 117B(6)(b). Back
42
New s. 117C(5). Back
43
New s. 117D(1). Back
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