Immigration detention Contents

Annex 2: Rights to challenge immigration decisions



1 July 1970


Created appeal rights:

- Created rights of appeal for commonwealth citizens against exclusion, conditions of admission, decision to make a deportation order, refusal to revoke a deportation order and removal. Appeal to adjudicator.

- Appeal on grounds that decision was not in accordance with the law/immigration rules or, if there was discretion to be exercised, that the discretion should have been exercised differently.

- No right of appeal against deportation or other restrictive action on grounds ‘primarily of a political nature’.

1 January 1973


- Replaced the 1969 Act.

- Enlarged appeal rights:

Extended scheme of 1969 Act to cover some aliens as well as commonwealth citizens, giving:

-Rights of appeal against refusal of entry clearance (which commonwealth citizens did not require).

-Rights of appeal against a certificate of patriality (confirming father or grandfather was born in UK).

-Suspensive rights of appeal to everyone who was subject to deportation as an overstayer or for breaching conditions of stay.

The 1971 Act did not give rights to all aliens:

those refused leave to enter (which commonwealth citizens did not require) with no entry clearance could exercise their rights of appeal only from abroad. [Someone wishing to challenge a removal on asylum grounds, where an appeal post-removal would be inadequate, would need to bring a judicial review.]

No appeal against decision to remove those deemed illegal entrants.

- Those excluded from the Act (as above) only had a right to an extra statutory advisory procedure where grounds of proposed exclusion were not disclosed.

1 August 1988


- The protection of Commonwealth citizens from immigration control ended on 1 August 1988 when s 1 of the Immigration Act 1988 repealed s 1(5) of the Immigration Act 1971. As they were subject to immigration control in the same way as aliens they benefited from the same appeal rights.

Restricted appeal rights:

- Immigration Act 1988 restricted rights of appeal against decision to deport for those last given leave to enter the United Kingdom less than seven years before the date of the decision to make a deportation order against them. The only challenge to the merits of such decisions would be by judicial review.

26 July 1993


Enlarged appeal rights:

- Introduced appeals against refusal of leave to enter or remain on asylum grounds. Suspensive right of appeal to a “special” adjudicator on grounds that removal/deportation/refusal to vary leave/removal directions would be contrary to UK’s obligations under the Refugee Convention.

- Appeal from “special” adjudicator to Immigration Appeal Tribunal. Refusal of permission could be challenged by judicial review.

- Appeal from Immigration Appeal Tribunal with permission to the Court of Appeal/Court of Session. Refusal of permission by Court of Appeal /Court of Session is final.

Restricted appeal rights:

- Removed rights of appeal from rejected visitors (other than those visiting family members), short-term (less than six months) and prospective (visiting to find a course) students and persons who did not meet requirements as to age, nationality or documents for the application they made. The only challenge to such decisions was by way of judicial review.

- No onward right of appeal to Immigration Appeal Tribunal in cases where the special adjudicator agreed with the Secretary of State that the claim did not engage in the UK’s obligations under the Convention or was frivolous or vexatious. Only challenge to decision was by way of judicial review.

27 January 1997


Restricted appeal rights:

- restricting appeals against return to a safe third country within the European Union and other countries so designated:

- Introduced certification of appeals on the grounds of:

Safe third country (person had travelled through another country en route to the UK and there was no risk of persecution in that country or that that country would refoule them)

Safe country of origin (specified by order)

and certain features of appeal, viz:

Appeal does not disclose a convention reason (race, religion, nationality, membership of a social group or political opinion);

Fear is clearly unfounded or circumstances giving rise to fear do not subsist

Person claims at port and fails to produce a passport, without giving a reasonable explanation for failure or produces a passport not valid and fails to say that it is not a valid passport

Claim is made after notification of liability to removal; decision to make a deportation order; recommendation for deportation by a court or post refusal of leave to enter.

Claim is frivolous, vexatious or manifestly fraudulent

Claim is made post notification of decision to remove/deport

A person could appeal against the certificate to an adjudicator on the grounds that the conditions for its issue were not met. If that appeal failed, then there was no onward right of appeal to the Tribunal. The effect of the certificate was that a person had no right of appeal to the Tribunal. The decision of the adjudicator could thus only be challenged by judicial review.†


Immigration and Asylum Act 1999 added complexity to appeals regime:

- Rights of appeal consolidated and put in 1999 Act. Aimed to create a ‘one-stop’ appeals process aimed to avoiding successive appeals (but created enormous complexity).

Human Rights Act 1998 enlarged appeal rights:

- Rights of appeal against the decision to refuse leave to enter or remain on human rights grounds given to all within the jurisdiction of the UK by the Human Rights Act 1998.

Immigration and Asylum Act 1999 modified regime:

- jurisdiction to hear appeals in immigration cases was given to adjudicators of the Tribunal.

- New right of appeal on grounds that decision was racially discriminatory. Appeals on this ground did not automatically suspend removal.

Immigration and Asylum Act 1999 restricted appeal rights:

- Rights of appeal removed from overstayers and those in breach of conditions of leave. These people were taken out of the deportation procedure and put in the same process as illegal entrants, that of administrative removal. This removed their rights of appeal. One effect of this was that a person refused was left in limbo waiting until a decision to remove was made, at which point s/he could appeal.

1 April 2003


Restricted appeal rights:

- Removal of right of appeal against destination to which a person was to be removed. Only challenge was henceforth by way of judicial review.

- Removal of right of appeal against a decision that a person requires leave to enter (i.e. that the person is not a non-visa national). Only challenge henceforth by way of judicial review.

- Removal of right of appeal where Secretary of State certifies that a matter could have been raised in an earlier appeal, whether or not that appeal was actually brought.

4 April 2005


Modification of regime–narrowing of safeguards:

- Replaced two tier adjudicators and Immigration Appeal Tribunal with a single tier immigration appellate authority: the Asylum and Immigration Tribunal. Tribunal could reconsider its own decisions and remake if these contained an error of law. [The two tier system was reinstated again under the Tribunal, Courts Enforcement Act 2007].

31 August 2006


Restricted appeal rights:

- restricted appeals for those refused entry to the United Kingdom to work or study.

Enlarged appeal rights:

- ‘Right of appeal for those whose leave is curtailed or not extended on asylum grounds but who have leave in another capacity following the decision. Henceforth they could appeal on grounds that they should not have been refused leave on asylum grounds (this right of appeal was later removed by the Immigration Act 2014)

15 February 2010


Enlarged appeal rights:

- A person appeals a decision of UK Visas and Immigration (where there is a right of appeal) to the First- tier tribunal. The unsuccessful party before the First-tier Tribunal can seek permission to appeal to the Upper Tribunal but must show an arguable error of law.

- Onward appeal to the Court of Appeal only in cases raising an important point of principle or practice or where there is some other compelling reason for the appeal to be heard.

Modification of regime:

- A two-tier appellate structure was reinstated bringing to an end the system introduced by the 2004 Act

- Judicial review transferred from the High Court to the Upper Tribunal. The same rights of judicial review remained, but the person hearing the judicial review would not necessarily be a High Court judge.

23 May 2011

UK Borders Act 2007:

Restricted appeal rights:

- In appeals against decisions under the points-based system, new evidence about the points-based application could only be adduced to rebut an accusation of having submitted a false or forged document.

5 April 2013


Modification of regime–changes in legal aid:

- Legal aid removed from all immigration (i.e. not protection) appeals, save where funding could be secured on an exceptional basis. Funding is no longer available for immigration cases raising Article 8 ECHR issues (except for in cases of domestic violence). Legal aid also removed in respect of deportation (but not if the deportation/removal decision raises asylum, Article 3, or humanitarian protection grounds.

25 June 2013


Modification of regime–adding complexity:

- Amendment of the Special Immigration Appeals Commission Act 1997 to provide right of review on ‘judicial review principles’ by the Special Immigration Appeals Commission. Previously, those applying for review would have gone for judicial review in the High Court, where there is no “closed material procedure” because these were cases where there was no right of appeal.

25 June 2013


Restricted appeal rights:

- Abolition of family visitor’s appeals.

- Provision made for the Secretary of State to issue a certificate so that if he decides to cancel or curtail leave ‘wholly or partly’ on the grounds that it is no longer conducive to the public good for a person to have leave to enter or remain in the United Kingdom and they are outside the UK when that decision is taken, they can only appeal from overseas.)

20 October 2014 to 6 April 2015


Restricted appeal rights:

- The Act reclassified appeals against refusal of leave to remain in the UK under broad headings of protection and human rights. The appeal is no longer against an “immigration decision” as defined under s. 82 of Nationality, Immigration and Asylum Act 2002. That approach was repealed and replaced with a different definition of an appealable decision. An appealable decision henceforth was: decision to refuse a protection claim; decision to refuse a human rights claim; decision to refuse a protection status.

- The only rights of appeal are for those who have made a protection (broadly an asylum) or human rights (for example on the basis of Article 8, the right to private and family life) claim as defined, which the Secretary of State has “decided to refuse” or whose leave granted for protection reasons (recognition as a refugee, humanitarian protection) has been revoked. Some of those with no human rights’ dimension to their appeal must settle for a Home Office ‘administrative review’ and if this finds no “case working error” their only option is judicial review. While these are mainly points based cases, they also include bereaved spouses and those applying under the domestic violence rule.

Those whose leave is curtailed henceforth have no right of appeal.

Among the casulaties of the changes: rights of appeal on the grounds that the decision is “not in accordance with the law”; rights of appeal against refusal of certificate of entitlement to a right of abode, important for the Windrush generation.

- Non-suspensive appeals have been a feature of the landscape since 2002 but the 2014 Act permitted certification on the basis that removal for the period until the appeal is heard before an appeal is heard would not breach the Appellant’s human rights. Deportation appeals could be certified on the basis that removal during the appeal would not breach a person’s human rights and in particular would not cause them serious, irreversible harm. The power did not apply in the case of those facing deportation on the basis of their family relationship to someone who is being or has been deported; it only applied to the principal.

- The Home Office guidance indicated that this certificate was not to be used in respect of Article 2 (right to life) or Article 3 (prohibition of torture) claims. The certificates were challenged by judicial review and reached the Supreme Court in the joined cases of Kiarie and Byndloss [2017] UKSC 42 on 14 June 2017 and

were found to breach the appellant’s procedural rights under Article 8 of the European Convention on Human Rights in that there were no facilities for them to give evidence in person at their appeal hearing, from overseas. The Home Office has not used these certificates since, but persons who had already been removed have not been brought back.

Enlarged appeal rights:

- For overstayers, if a human rights application is refused, there is a right of appeal. (Previously, if refused, they had to wait for removal directions to be set to have an appeal.)

1 December 2016


Restricted appeal rights:

- Made provision to extend the system of certifying appeals to permit removal before the appeal is heard from deportation cases, to all cases. The Home Office proposed to phase their implementation and use them first where:

The person made their human rights claim at a time when they had no leave (overstayers or those who entered without leave); and

The claimant does not rely on their relationship with a British national partner, parent, or child (where there is evidence of the relationship).

The provisions were not used following the decision in Kiarie and Byndloss.

Published: 7 February 2019