Appeal

Section 15 of the Immigration Act 2014 drastically amends Part 5 of the Nationality Immigration and Asylum Act 2002 and severely restricts the right of appeal in immigration cases. Under the new Section 15 provisions, a person may only appeal to the Immigration Tribunal in the following circumstances:

• The Secretary of State has decided to refuse a protection claim
• The Secretary of state has decided to refuse a human rights claim
• The Secretary of State has decided to revoke the person’s protection status.

All other applicants in immigration cases will have no right of appeal and will only be entitled to challenge a negative decision by an application for administrative review or judicial review. See also Administrative Review and Judicial Review.

The new appeal provisions under section 15 are coming into force in stages. All immigration decisions as defined by section 82 of the Nationality Immigration and Asylum Act 2002 not affected by the new appeal provisions continue to attract a right of appeal until the new appeal provisions under the Immigration Act 2014 are brought fully into force.

Adequate instructions and continuous assessment of an immigration matter is very important in an appeal. If a person has made an application to enter or remain in the UK or a human rights claim or a decision to remove has been made, the person may be served a ‘one stop’ notice under section 120 of the Nationality Immigration and Asylum Act 2002. The notice places an ongoing duty on a person to raise any additional reasons or grounds at an early stage and to prevent matters being raised at the last minute. If no response is made to the notice but the person makes a late claim, if refused, the claim can be certified under section 96 of the 2002 Act, potentially removing all rights of appeal if the claim could have been raised earlier.

Judicial Review

Judicial Review is a process under which the administrative act of public bodies such as the Home Office are reviewed by the judiciary. It is a complex and legalistic process. Since September 2013, judicial review of most immigration and asylum decisions are carried out by the Upper Tribunal of the Immigration and Asylum Chamber.

Judicial Review is different from an appeal. It is generally regarded as more limited in scope. Whilst an appeal is concerned with the merits of the decision under appeal, judicial review is concerned with the legality of the decision or act under review.

There are three parts to the judicial review process: a) the pre-action protocol stage, which should be followed in most cases; b) the permission stage and c) the substantive hearing. The pre-action protocol and the permission stage can be useful in putting pressure on the Home Office to reconsider their decisions, particularly in cases with substantial arguable merits. If permission is granted, the Home Office may consider conceding.

Applications for judicial review in the Upper Tribunal must be issued no later than 3 months after the date of decision. Rule 28 (2) of the Tribunal (Procedure) Upper Tribunal Rules 2008 provides that proceedings must also be issued promptly. This implies that proceedings may need to be issued well in advance of the 3 months time limit in some cases in order to be considered prompt.

Appeal by EEA Nationals or Citizens of the European Union

EEA decisions are unaffected by the new appeal provisions under the Immigration Act 2014, and continue to attract a right of appeal under section 82 (1) of the Nationality Immigration and Asylum Act 2002. Under Regulations 26 (7) Schedule 1 to the Immigration (EEA) Regulations 2006, an appeal under the 2006 Regulations shall be treated as if it were an appeal against an immigration decisions under the 2002 Act.

Administrative Review under the Immigration Act 2014

Tier 4 students and their dependants who made an application in the UK on or after 20/10/2014 will not have a right of appeal. This is part of the measure to implement changes to the immigration appeal system set out in the Immigration Act 2014. In certain circumstances, it may be possible for them to apply for administrative review of the refusal of an application under Appendix AR of the Immigration Rules. This should not be confused with administrative review of visa decisions under the Points Based System. Administrative Review is an internal review carried out by the Home Office. It is narrow in its ambit, and is only available in certain circumstances. Applicants who wish to challenge a decision on other grounds will need to apply for judicial review.

When the appeal provisions under the Immigration Act 2014 are brought fully in to force, a person will only be entitled to appeal against the refusal of a human rights claim, a claim for refugee and humanitarian status and the revocation of protection status. All other immigration decisions will fall under this limited administrative review regime. Applicants who are not entitled to administrative review will need to challenge the refusal by way of judicial review