Over the last few years as a direct access immigration barrister I have had numerous clients who have sought to regularise their status and paid good money to do so only to find that at the last hurdle the Secretary of State sought to frustrate them. By this, and this might ring true in your case or a friend or family member’s case, you have made an application for leave to remain when you did not have leave to remain, paid all the HO fees, which can be very large, and then found yourself faced with a poor refusal and no right of appeal.
You may have even tried to judicially review the refusal. These were all vigorously refused, however the Secretary of State having regard to her own duties under s.55 of the Borders, Citizenship and Immigration Act 2009 implemented a policy whereby those with children who are over 3 or British (amongst others) could ask for, and get a right of appeal. This policy has helped many of my clients to getting the visa to which they are entitled.
However, what of those who fall outside the policy, perhaps there is no child or the child is too young or there are no “exceptional circumstances” Prior to 6 April 2015 their lot was not a happy one. I have had good success with such cases in the Upper Tribunal (where for example an individual had left the country of their nationality aged 3 and where the Secretary of State said they had not provided evidence of no ties, or where the Secretary of State has simply recited the Immigration Rules HC395 without any real engagement with the evidence, contrary to the excellent decision of Bosomo). However I had met with some set backs where the Upper Tribunal Judge sides with the Home Office, I have found it a little Kafkesque that an individual who only wants an enforcement decision that will decide their fate one way or another is refused it by the very Home Office that wants them gone.
This has all changed post 6 April 2015. Now any Human Rights claim will carry with it, subject to certification under s.94 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) an in country right of appeal.
How does this help the previously refused? Well in a number of cases I have done over the last few weeks, where there have been outstanding judicial review applications, applications that would have been frankly difficult to win, I have suggested to the GLD, Government Legal Department – the new name for the Treasury Solicitors Department that they should agree to make an enforcement decision as it would be unfair to expect someone to make a new application and to pay a new fee.
I have so far found a well timed and well written letter along with a threat to amend the claim produces the desired result, i.e. a right of appeal. I have had two such cases where this was plainly just, one where there were children who fell within the policy above but where the previous solicitors, previous counsel and Upper Tribunal Judge ignored the policy and s.55 and secondly where again the Secretary of State had ignored a clients 6 British children in refusing to grant a right of appeal.
I am not sure how much longer the Secretary of State will continue to be so flexible before she returns to requiring a fresh application even if it just means a family has to scrape together yet more money for an application that will be refused. However, if you or a family member or friend had a JR refused and are either awaiting an oral hearing or had the oral hearing dismissed all is not lost. I would urge you to contact me or any reputable lawyer and get them to request a right of appeal based upon the fundamental change brought into effect by the Immigration Act 2014 on 6 April 2015. It is rare that a piece of legislation often assists Claimants even rarer that the Secretary of State also appears to help. If you think this might apply to you please get in touch as soon as possible.
As noted in my previous blogs I am now offering a limited number of evening and weekend slots if you want an appointment as I recognise with work and childcare getting to see a lawyer during normal working hours can sometimes seem impossible.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.