As a direct access immigration barrister I have been watching with horror as to the Home Office’s changes in the rights of appeal. The Home Office has been taking away the right of appeal over the last few years both in the UK and abroad. The Secretary of State has replaced in some cases Administrative Review. Unfortunately, I have not seen any cases where there has been an Administrative Review where the Applicant has won. Normally the Administrative Review refusal is the first step in a judicial review claim.
The latest changes relate to Section 94B of the 2002 Act. This was originally designed for criminals. They would not be able to appeal prior to removal unless there was to be a breach of human rights, usually a child would suffer.
I heard at Taylor House that there was a large backlog of appeals, this backlog may be getting smaller given the number of Courts that are sitting as opposed what were sitting previously, once I went to Taylor House to find only 7 Courts sitting.
The new changes that are to be implemented in respect of S.94B will have drastic effects on all human rights claims, it will in effect permit the Home Office to certify Human Rights claims for those who are not British and who did not have leave when they made their application. Here is an extract from the guidance:
“Phased implementation for non-deport cases
Implementation of the extended power is being phased.
The power to certify non-deport cases should be applied on or after 1 December 2016 where the case under consideration meets both of the criteria below:
- the claimant did not have existing leave at the point that they made their human rights claim (for example, overstayers or illegal entrants)
- the claimant does not rely on their relationship with a British national family member
For the purposes of identifying this cohort, the term ‘family member’ means a partner, parent, or child, where there is evidence of the relationship.”
This makes it clear that those who are overstayers and are trying to regularise their status will face the prospect of doing it from abroad. Given that paragraph 276ADE talks about the difficulties of living abroad if an individual is able to have survived for 1 year or so before the appeal is heard then I struggle to see how they will win any appeal.
It appears to me that the Home Office are one or two steps from removing any right of appeal whatsoever. This is likely to create an increased number of Judicial Review applications.
This is worrying as JR is not as simple as bringing an appeal before the First Tier Tribunal for a number of reasons, the first is the most obvious that the Applicant will have the opportunity of appearing before the Judge and speaking, thus enabling the Judge to form a first hand review of the Applicant. In JR cases the best the Applicant can do is dress smartly and look appealing before the Court. Furthermore the test is higher, in human rights cases for the Applicant to win they have to satisfy the balance of probabilities in JR proceedings the test is that of Wednesbury unreasonableness. These are just a few of the problems that individuals will face.
It follows and this is the simplest piece of advice I have to give is that any individual who is thinking of regularising their status to make an application as soon as possible. The longer that an individual waits the more difficult any application will be to succeed either at the first stage or at appeal.
We, at Imperium Chambers, who have now grown to some 7 members, including clerks, door tenant, pupil and paralegals, are waiting to help. We know how important your immigration status is to you and how important it is that the case is done properly and quickly and therefore we are working evenings and weekends.
If you do not have immigration status but have been thinking about getting it sorted out at a later stage, then that later stage may never arrive or you will have no right of appeal and be denied the opportunity of giving evidence. I would urge you to get in touch as soon as possible and we will do all we can to help.
Likewise if you have a a family member who has not got round to regularising their status then perhaps a friendly word is called for. As a barrister who has been working in this field for years, I have never seen things as bad as this for years and see no signs of improvement in the near future.