As a direct access immigration barrister I am often faced with two types of cases, the first where an individual is coming to the end of their leave and the other where they have made an application for leave to remain which has been refused and certified as clearly unfounded under s.94 of the Nationality, Immigration and Asylum Act 2002.
This is a problem which I think can be avoided if the applications are properly made. It never used to be a problem as the Secretary of State never used to certify claims unless they were from particularly weak countries / claims – such as asylum claims from India where there was no evidence of state persecution and where the fear was limited to say to a small area.
The new Immigration Act 2014 on its face should open the number of appeals. Prior to the implementation of the IA 2014 an appeal would only be given if leave had been previously been extant or if there was an asylum claim.
This meant that if individuals did not have leave to remain then they did not get a right of appeal. This lead to a lot of litigation, including Daley Murdock, Mirza and culminating in the Supreme Court case of Patel.
It was thought therefore that the new IA 2014 would lead to a lot more immigration appeals. S.84 of the Nationality, Immigration and Asylum Act 2002 provided that the number of appeal was restricted to those who had made an asylum claim / human rights claim amongst a number of other limited other appeals.
However what has happened in reality is that the Secretary of State is now certifying a great number of human rights claims that otherwise would not have lead to certification. A consequence to this is that it there are a great number of additional judicial review applications be lodged in the Upper Tribunal.
On a personal level I am not sure how this works with the governments desire to reduce the number of claims / appeals but then I am also often uncertain that the government thinks through any policies.
I recall starting my career as a lawyer working for the Treasury Solicitors Department back in the late 1990s. There was a great desire to cut the number of staff that worked for the Home Office and to that end the