New power to remove while human rights appeal is pending

Legal Updates

From 1 December 2016, the “out of country” appeals regime is extended.

In a power granted by the 2016 Immigration Act and in force from 1 December, the Home Office can remove someone from the UK even if they are appealing, or plan to appeal, on human rights grounds while the appeal is pending.

The Home Office already had the power to do this (since the 2014 Immigration Act) to foreign national ex-offenders – known as the “deport first, appeal later” policy.  This policy has now been rolled out to all migrants wishing to appeal on human rights grounds.  Note – this power does not apply to asylum appeals.

Since April 2015, there has only been the right of appeal for refusals of immigration applications on the basis of asylum/humanitarian protection, human rights, or EU law. This means that many decisions in immigration decisions do not have a right of appeal at all – in these cases, if the Home Office refuses your immigration application, you cannot appeal and your legal options are limited to making a new or different application, or possibly judicially reviewing the decision (which is very difficult, and can be very costly).

If you do still have the right to appeal a Home Office decision because the decision or the appeal is based on human rights grounds, you now do not have the right to bring that appeal within the UK, unless being made to appeal from outside the UK would cause “serious irreversible harm” or it will be a breach of your human rights if you are unable to appeal from the UK.

You would need to show that the process of having to appeal from outside the UK will cause serious irreversible harm or the aforementioned human rights breach, rather than just your removal from the UK itself.

As the barrister Colin Yeo wrote in his Free Movement blog post:

The success rate for human rights appeals was 35% in the most recent tribunal statistics for 2015-16 … The average time taken to determine immigration appeals stood at 44 weeks for the most recent quarter, an increase of 14 weeks compared to the previous year…  There are now 65,000 outstanding appeals waiting to be determined.

So, in 35% of cases, the appellant would ultimately win their appeal. In the meantime, though, he or she will have to leave the UK, potentially losing his or her job and home and being separated from his or her partner and children, pay [the fees] to lodge an appeal, wait for nearly a year and then be readmitted to the UK once the Home Office decision is found to be wrong.

And as Lotte Lewis-Smith wrote recently, this policy when viewed alongside the three month removal window and the restrictions on when a judicial review can stop a removal, demonstrate:

the will to accelerate the removal process, as enforced removal from the UK is prioritised above access to justice and fair legal representation.

Phasing in of the new power

As reported by Colin Yeo, this new power to remove someone while a human rights appeal is pending exists from 1 December but will be brought into force gradually.

At the moment, the policy will only be used in cases where the person with the human rights appeal did not have valid leave to remain in the UK at the time of making a relevant human rights claim; AND their human rights claim is not founded on a relationship with a British national family member.

For example, the new policy can currently be used against someone who is an asylum-seeker and who is “appeal rights exhausted”, who then makes a human rights claim based on their family life in the UK (not involving any British nationals) which is refused.  The Home Office can remove that person even if they have the right to appeal the refusal and indeed even if they are in the middle of doing so.

If a person in this situation made a human rights claim based on their family life with for example a British partner, or British child, the new power can’t be used (yet).

If someone is in the UK on (for example) a family, work or student visa, which is still valid, and makes a human rights claims while that visa is still valid, the Home Office cannot yet use the removal-while-appeal-pending power against them.


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