Following the introduction of the Immigration Act 2014, the range of Home Office decisions that can be appealed has been reduced drastically.
This article looks in more detail at what decisions are now appealable, at the permissible grounds of appeal, and the practical impact of this for individuals considering an appeal.
What decisions used to be appealable?
Before the introduction of the Immigration Act 2014, which amended section 82 of the Nationality, Immigration, and Asylum Act (NIAA) 2002, the majority of decision relating to immigration matters could be appealed.
This included visit visa applications, entry clearance applications, most applications for leave to enter or remain, refusals of a variation of leave, deportation decisions and others.
In addition, it was possible to appeal certain decisions relating to European law applications such as applications for a family permit or for a permanent residence card.
Decisions to deprive a person of their British citizenship under section 40 of the British Nationality Act 1981 were also appealable in most cases.
What decisions are currently appealable?
The principal effect of the amendments to Section 82 NIAA 2002 by the Immigration Act 2014 are that the majority of immigration applications no longer carry a right of appeal.
Section 82 NIAA 2002, as amended, states that a person is only able to bring an appeal where the Secretary of State (i.e. the Home Office) has:
- Refused a protection claim by that person;
- Refused a human rights claim by that person; or
- Revoked that person’s protection status.
In this context a “protection claim” means either an application for refugee status or an application for humanitarian protection with “protection status” meaning refugee status or humanitarian protection. The other form of appealable decision under this provision is where a “human rights claim” has been made (as discussed below)
Note that there may also be a right of appeal where the Home Office has decided to
- refuse you a residence document or deport you under the Immigration (European Economic Area) Regulations 2016;
- revoke your British citizenship;
- refuse or revoke your status, vary the length or condition of your stay, or deport you under the EU Settlement Scheme;
- refuse or revoke your travel permit or family permit under the EU Settlement Scheme or restrict your rights to enter or leave the UK under those permits;
- refuse or revoke your permit, or deport you if you’re a frontier worker; or
- refuse or revoke your leave, or deport you if you’re an S2 healthcare visitor
What is a “human rights claim”?
In practice, human rights issues can arise in a wide variety of immigration applications and whether there exists a right of appeal is not dictated by the category of application e.g. whether it is an entry clearance application, or an application for leave to remain or indefinite leave to remain or otherwise.
What is important is whether you are able to show that the decision of the Secretary of State has engaged human rights issues.
In general, applications which are based on a person’s life and relationships in the UK, are considered to be “human rights claims” for the purposes of s82 NIAA 2002.
For example, this may include where a person is making an application to remain in the UK based on 10 years residence, or based on marriage, or some other exceptional circumstances that means the removal would cause that person or someone else a significant degree of suffering.
In its guidance, the Home Office provides a list of applications where its “starting position” is that there is a right of appeal, and this is worth considering.
A decision to refuse a person’s right to work in the UK, visit the UK or even have their family join them in the UK may not be appealable if a refusal does not engage human rights issues. Such decisions can now only be challenged via judicial review.
On what basis can an appeal be made?
This section focuses on the grounds of appeal where an appeal is brought under section 82 NIAA (i.e. following a protection or “human rights claim”).
Before the Immigration Act 2014, an appeal could succeed on a number of grounds, including on the basis that the decision was not in accordance with the immigration rules, or that it was not in accordance with the law.
However, the Immigration Act 2014 also limited the possible grounds of an appeal in ways that reflected the more limited types of decision that can be appealed. These grounds of appeal are listed at section 84 NIAA 2002, as amended by the Immigration Act 2014, and which states that:
- Protection decisions) can be appealed only on the basis that the applicant should have been granted refugee status or humanitarian protection, or that their removal from the UK would breach their human rights or the human rights of another relevant person;
- Human rights decisions can only be appealed on the basis that they would breach a person’s human rights; and
- Decisions revoking protection status can only be challenged on the basis that a person should still hold either refugee status or humanitarian protection.
This change again marks a significant reduction in rights for individuals attempting to bring appeals against Home Office decisions.
Indeed, there is even now case law which confirms that it is no longer possible to succeed in an appeal before the Tribunal simply because a decision of the Secretary of state was not in accordance with the law.
In human rights applications, decisions can only be challenged if the individual making the application can show that its refusal would have some serious effect on themselves or other relevant people (for example, a child or partner of other family member).
Given these restrictions in rights of appeal it is important to make sure that an application is properly prepared. We are happy to review your application via our one-off consultation service, or otherwise provide more comprehensive support.
Please do not hesitate to get in contact via our website or via 0208 365 7800 to discuss your needs.