This is something that the Secretary of State is trailing in the new Immigration Bill for this coming year and something that as a direct access immigration barrister I am following keenly. This is potentially a disaster. The Secretary of State has already managed to enact a certification for criminals under s.94B of the Nationality, Immigration and Asylum Act 2002 (as amended) which has the effect of denying an individual an in country right of appeal in certain circumstances, in essence if there will be no irrevocable breach of the individual’s human rights, which in reality means if there are no children involved.
I have had a few cases where this has already proved to be a problem, most notably where there have been children but where the Secretary of State has decided, often on flimsy evidence that there is no evidence of family life.
This has lead in a number of cases to judicial review claims, which in turn have lead to the Claimant being released from detention and the decision being challenged. In one of the cases that came to me the problem was that the previous representatives had not properly prepared the case. They had not put in sufficient evidence of family life. This caused a huge amount of problems as one can imagine as obviously with judicial review one is reviewing the earlier decision and cannot not adduce further evidence. Removal in that case was only stopped as it was possible to obtain an expert report and submit further detailed submissions relating to the existence of the family life.
The other case came to be before the certification and it was much easier to resolve again by producing proper evidence of the existence of family life.
However, the worry is that this no in country right of appeal will be rolled out to non criminal cases. The Secretary of State has trailed this non suspensive right of appeal without there being any great problem and without there being any fuss, this is perhaps not surprising as criminals do not tend to garner a good press.
My worry is that it is a short step from criminals to mere migrants, migrants whom the government like to categorise as criminals. This again is a well trodden path and one that the public does not really get exercised about. Having said this there has been some positive news items on migrants as a result of the tragedies in the meditterean but I do not think that this outpouring of concern will have any material impact on the government’s ability to further restrict rights of those who are, ultimately, seeking a better way of life.
Therefore I am not sure that there will be any serious opposition to this bill and that in these circumstances it would not surprise me if the proposed law becomes statute.
What to do? Or rather what can be done? In my view urgency is the key word. If you have or are thinking of making a claim I would get it made as soon as possible. I would not wait. Even if you are scared or worried about the claim succeeding if you have a viable human rights claim I would urge you or your family to get in touch with a reputable lawyer as soon as possible in order to get a proper claim made before any right of appeal effectively vanishes.
This post follows on from a couple of others I have written on the new changes and as a result of the interest that has been shown I am now offering some late night appointments, I appreciate that some people are working or have child care issues and am happy to see people later in the day. I am also going to be holding Saturday morning surgeries so if you want to come and see me and my team now is as a good a time as any to get in touch and get an appointment made.