SGS 8 - Asylum Appeals PDF

Preview

Summary

Immigration Law: asylum appeals notes....

Description

SGS 8 – Appeals and Reviews

The right of appeal is largely set out in Section 82 of the Nationality, Immigration and Asylum Act 2002 (NIAA). A radical reduction in appeal rights is also set out in Immigration Act 2014. To ensure that applications don’t have successive appeals, S96 of NIAA 2002 provides Secretary of State to certify that, any second decision made doesn’t attract right of appeal. There is a principle that there is only one right to appeal against a limited number of decisions made by the Sec of State. Where multiple decisions would result in multiple rights of appeal , they are subsumed into one appeal. By S82(1) NIAA 2002, an appeal can be made against the decision of the Secretary of State to: a. Refuse a protection claim b. Refuse a human rights claim; or c. Revoke protection status

Appeals go into the Immigration and Asylum chamber of the first-tier tribunal. There is now a 2 tier tribunal. First-tier tribunal (FTIAC) and Upper Tribunal (UTIAC).

RIGHTS OF APPEAL This is in the Immigration Act 2014 and has been narrowed down to only 5 decisions. Refusal of a protection claim – e.g. application for asylum or humanitarian protection Refusal of a human rights claim Revocation of a protection status – leave granted as refugee or beneficia of humanitarian protection not curtailed or not renewed. Refusal of an EEA decision – exclusion or removal of EEA nationals and family members. Or refusal of issue residence documentation. Deprivation of a citizenship status – as a british national.

Time Limits for Appealing Any appeal must be lodged within a specified time limit: o o

where the appellant is in the UK: 14 days where the appellant is outside the UK: 28 days

This means that someone outside the UK must either appeal within 28 days after the receipt of notice of decision e.g. refusal of entry clearance, or 28 days after they’ve departed from the UK if the appeal is against removal. There is discretion to allow an appeal lodged outside the time limit to proceed, whereby reason of special circumstances it is just to do so. Tribunal will require explanation for this and if notice of appeal arrives late the matter goes before a judge to be determined as a preliminary issue and will be decided on basis of whether or by reason of special circumstances, it is just to allow appeal to proceed.

S92 NIAA determines whether an appeal right is exercisable whilst the appellant is in the UK, or if it can be made only from abroad. General rule: Where the appellant was outside the UK when he made the claim, he must appeal from outside the UK. Where the appellant was inside the UK when he made the claim, he may appeal from within the UK unless the claim has been certified under S94/94B. Powers of Tribunal. What they must do. When considering the appeal, the tribunal must take into account any evidence that is relevant to the substance of the decision, including evidence in relation to matters arising after the date of the decision unless, appeal relates to refusal of entry clearance or certificate of entitlement to the right of abode. IA 2014 has added that tribunal must not consider a new matter unless Sec of State has consented.

Under S86 NIAA 2002, the tribunal must allow appeal if it’s of the opinion that -

the decision against which the appeal is brought was not in accordance with the law a discretion that was exercised in the making of the decision in which the appeal is for should have been exercised differently.

When an appeal is allowed S87 NIAA provides for direction to be given in order to give effect to the decision. Appeals can be made by person in the UK and usually it will be suspensive. It will take effect to temporarily prevent removal. Certain decision attract right of appeal which is non-suspensive. The appeal is heard after the person has been removed from the UK.

GROUNDS OF APPEAL An appeal can only be brought on one or more grounds of appeal set out in S84 NIAA 2002. The Immigration Act 2014 has reduced grounds of appeal to 3. S84(1) An appeal under s82(1) NIAA 2002 (refusal of protection claim) must be brought on one or more of the following grounds: a. That removal of the appellant from the UK would breach the UK’s obligation under the Refugee Convention b. That removal of the appellant from the UK would breach the UK's obligations in relation to persons eligible for a grant of humanitarian protection. c. Removal of the appellant from the UK would be unlawful under S6 Human Rights Act 1998. 2. An appeal under S82(1)(b) (refusal of human rights claim) must be proved on the ground that the decision is unlawful under S6 Human Rights Act 1998. 3. An appeal under S82(1)(c) (revocation of protection status) Must be brought on one or more of the following grounds:

a. Doctor decision to revoke the appellants protection status breaches the UK's obligations under the refugee convention; b. That the decision to revoke the appellants protection status breaches the UK's obligations in relation to persons eligible for a grant of humanitarian protection.

ONE STOP PROCESS: Notice of Appealable decision The Immigration (Notices) Regulations 2003 provide that a decision maker must give written notice to a person of any appealable decision. The notice must include will be accompanied by a statement of the reasons for the decision to reach relate. The notice must also : -

a statement advising the person of his right of appeal and the statutory provision on which his right of appeal is based; whether or not an appeal may be brought while in the UK; the ground on which such an appeal may be brought; and the facilities available for advice and assistance in connexion with certain appeal.

S120 NIAA, The notice will set a deadline for the appellant to provide a. his reasons for wishing to enter or remain in the UK b. Any ground on which he should be permitted to enter or remain in the UK and c. any ground on which he should not be removed from or required to leave the UK after being served with this notice, the appellant has an ongoing duty so that a further statement should be made if a new reason or ground for remaining in the UK arises. More information on page 277

CONSEQUENCES OF FAILING TO DISCLOSE ALL GROUNDS OF APPEAL If a S120 notice isn’t answered, the applicant will not be able to raise such ground later on and may lead to certification under S96 NIAA. this means that there can be no appeal against the decision and those grounds cannot be raised in connexion with a further appeal. Before the Secretary of State can lawfully decide to certify, four steps must be taken: STEP 1: The Secretary of State must be satisfied that the person was notified of our right of appeal under section 82 of the act. STEP 2: The Secretary of State must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision. STEP 3: The Secretary of State must form the opinion that there is no satisfactory reason for the matters not having been raised in an appeal against the old decision (S96(1)(c)) or that there is no satisfactory reason for that matters not having been raised in a statement made in response to that notice (S96(2)(c)) STEP 4: The Secretary of State must consider whether, having regard to all relevant factors, he should exercise his discretion to certify, and must conclude that it is appropriate to exercise their discretion in favour of certification. More on certificates on page 278

THE APPEALS SYSTEM The First-Tier Tribunal I want to appeal against unappealable decision lies to the immigration and asylum chamber under S82 NIAA 2002. Normally there is an initial case management review hearing . This will determine the issues in dispute and evidence necessary to deal with them. At the appeal hearing , the immigration judge determines whether or not to uphold the original decision. If it is upheld, appeal lies on a point of law to the upper tribunal . Permission to appeal is required from the immigration and asylum chamber or, failing that, the upper tribunal. If both the IAC and upper tribunal refused permission to appeal, that decision can be judicially reviewed , but limited to the grounds that either: a. the proposed appeal would raise some important points of principle or practise; or b. there is some other compelling reason for the court to hear the appeal in relation to ground b, in PR (Sri Lanka) v Sec of State: the Court of Appeal stated that ‘compelling means legally compelling... from a political or emotional point of view and may exceptionally add weight to the legal arguments.’ Divisive appeal to the upper tribunal is on any point of law arising from a decision made by the first tier tribunal. Although an error of law is widely defined, it is not the case that the upper tribunal is entitled to remake the decision simply because it does not agree with it , or because it thinks it can produce a better one. Appeal on a point of law from the upper tribunal lies to the Court of Appeal. It is necessary to obtain the cause permission first.

APPEALS TO COURT OF APPEAL Court of Appeal has the power to give any decision that might have been given by the IAC. It can also remit the matter for re-hearing and determination by the IAC, and then may offer the IAC its opinion and make directions with which the IAC must comply.

PENDING AND ABANDONED APPEALS on page 279

National Security and Similar matters: S97 NIAA provides that an appeal under S82 cannot be made or continued where Sec of State certifies that a decision was taken to exclude or remove a person from UK: a. interests of national security b. in the interests of the relationship between the UK and another country; or c. otherwise in the public interest Deportation Order made on national security grounds: S97 NIAA 2002 doesn’t apply where the secretary of state certifies that the decision to make a deportation order in respect of person was taken on grounds that his removal from the UK would be in the interests of national security. more on page 280.

EEA Nationals – rights of appeals page 280

S94(1) NIAA 2002, provides Sec of State may certify that a protection claim or a human rights claim is clearly unfounded. Is the Secretary of State is satisfied that a claimant is entitled to reside in a state listed in S94(4) , he must certify the claim unless he is satisfied that it is not clearly unfounded. S94 NIAA 2002 provides that asylum or human rights claim can be certified as clearly unfounded either sec of state considers that its unfounded or that the appellant has resided in one of a list of countries from which some or all claims are deemed to be unfounded. These are known as designated countries. The designation may include all or part of the country or refer to the country as being safe for certain groups of people. This can be accorded to gender, race, religion etc. The S94 states considered to be generally safe in context of protection and human rights claims are: listed on page 280

Home Office gives the following as examples of clearly unfounded claims: a. a claim which raises nothing that could be construed as amounting to an expression of a fear of mistreatment upon return. For example, a person says he is seeking asylum but gives as his reason that he is fleeing poverty or unemployment. b. The claimant expresses a fear of mistreatment, but from the objective evidence it is not arguable that the mistreatment , even if it occurred, would amount to persecution or treatment contrary to Article 3. c. The claimant expresses a fear of persecution or Article 3 treatment by non-state actors , but the state provides a sufficiency of protection against such actions.

Person may not ring appeal with the Secretary of State satisfies that it is proposed to remove the person to a country of which he is not a national or citizen, and there is no reason to believe the persons rights under ECHR will be breached in that country Home Office guidance is that claim should be assessed at their highest and are certified only when they are bound to fail. A certificate may be challenged by way of judicial review:

How should the Secretary of State set about making the decision? Five steps need to be taken. The Secretary of State should: (i) (ii) (iii) (iv) (v)

consider the factual substance and detail of the claim consider how it stands with a known background data consider whether in the round it is capable of belief if not, consider whether some part of it is capable of belief consider whether, if eventually believed in whole or in part, it is capable of coming within the convention.

If the answers are such that the claim cannot on any legitimate if you succeed, then the claim is clearly unfounded.

where are certificate is issued concerning a national of a country listed in S94(4), the first challenge may be as to whether the country in question has been properly listed. To succeed command claimant will have to demonstrate that the evidence clearly establishes that there is a serious risk of persecution in that country the affects a significant number of people the next question is whether the Secretary of State was obliged to certify the claim on the basis that it was clearly unfounded. The Supreme Court held in R (on the application of Brown v Secretary of State for the Home Department [2015], that the inclusion of Jamaica on the list was unlawful

HUMAN RIGHTS CLAIMS By S94B NIAA, If a human rights claim is made, the Secretary of State may certify that claim if he considers that, despite the appeals process not having been begun or not having been exhausted, refusing the appellant entry to, removing him, or requiring him to leave the UK, would not be unlawful under S6 HRA 1998. The grants on which the Secretary of State may certify a claim include in particular that the appellate would not, before the appeals process is exhausted -

face a real risk of serious irreversible harm if refused entry to , removed from or required to leave the UK

PERSONS EXCLUDED FROM ASYLUM: When Home Office decides that claimant is excluded from asylum , the Secretary of State will issue a certificate to that effect. Consequently, any appeal made to the IAC or SIAC must start by considering the statements made the Secretary of State certificate. SIAC is Special Immigration Appeals Commission. This body was set up to deal with appeals where national security and other sensitive matters are a consideration. 11.8

EUROPEAN COMMON LIST OF SAFE COUNTRIES OF ORIGIN S94A NIAA allows the Secretary of State by order to prescribe a list of states to be known as the European Common List of Safe Countries of Origin. This provides that the council shall adopt A minimum common list of third countries that shall be regarded by member states as safe third countries origin if a national level states listed in this list, or a stateless person he was formerly habitually resident in such a state, making asylum claim or a human rights claim, the Secretary of State will certify such claims clearly unfounded under s94, unless he is satisfied that there were serious grounds for considering that the state in question is not safe given the particular circumstances of the claimant.

DEPRIVATION OF CITIZENSHIP ORDERS By S40a BNA 1981, Person given notice of a decision to make an order depriving him of his British citizenship has a right of appeal to the IAC.

ADMINISTRATIVE REVIEW Only an eligible decision can be reviewed. This is either the refusal of an application or its approval, but a review is sought of the period and/or conditions of leave granted. The decision must concern: a. In country Tier 4 applications b. in country tiers 1, 2 or 5 migrant applications c. in country applications for leave to remain, unless the applicant applied as a visitor or made a protection claim or human rights claim. for applicants ask the UK Border, eligible decisions are those cancelling leave to enter or remain that were in force with the result that the applicant has no leave to enter or remain, due either to a change of circumstances, or false representations or failure to disclose material facts. The applicant will be granted temporary admission if he is allowed to enter the UK to make an administrative review application. A person who receives an eligible decision on an entry clearance application may apply for administrative review. For applicants overseas, an eligible decision is a decision to refuse an application for entry clearance , unless it was made in the category of short term student or visitor, or a human rights claim. What is case working error? If an eligible decision has been made, only the following case working errors can be reviewed: a. that the original decision maker’s decision was incorrect in relation to either: i. Refusing an entry clearance application on the basis of paras 320(7A/B) All the immigration rules (false representations, false documents or information, failure to disclose material facts or breach of previous conditions) ii. Refusing an in country application on the basis of para 322(1A) of the immigration rules (refusal based on ^) iii. cancelling leave to enter or remain that is in force as a visitor iv. cancelling leave to enter or remain that is in force at the border b. that the original decision made his decision to refuse an application on the basis that the date of the application was beyond anytime limit in the immigration rules, was incorrect c. that the original decision maker otherwise applies the immigration rules incorrectly. d. That the original decision maker failed to apply the secretary of states in relevant published policy and guidance in relation to the application. e. That there has been an error in calculating the correct. Or conditions of immigration leave either held or to be granted. Examples on page 284

APPLYING FOR ADMINISTRATIVE REVIEW The requirements for an administrative review application are set out in paragraphs 34M to 34Y of the immigration rules . Application can only be made either by completing the relevant online application or by using the specified application form. An in country request must be made within 14 calendar days after the date on which the applicant received the decision . This will only be 7 calendar days if the applicant is an immigration detention. If the request is about a decision made overseas, the deadline is 28 calendar days. What if the deadline is missed? The Secretary of State may waive the time limit if it is just to do so and the application was made as soon as reasonably practicable. The applicant will normally have to provide evidence to persuade the secretary of states that it would be unjust not to accept a late application. Example: Home Office guidance gives the example of an applicant who is prevented from making the application before the deadline because he is admitted to hospital as an emergency. However, he should provide a letter from the consultant, confirm the date of admission and discharge and the nature of the emergency treatment. Applicant is allowed one valid administrative review for each eligible decision. More information on page 285

HOW IS AN ADMINISTRATIVE REVIEW CONDUCTED? The Home Office case worker, immigration officer or ECO conducting the administrative review is known as the reviewer. The reviewer will not be the same person who made the initial decision. It is made independently. Home Office instructions to the reviewer are that he must: Listed on page 285

EVIDENCE A reviewer will not consider any evidence that was not before the original decision maker, except where such evidence is submitted to demonstrate that a case working error has occurred in the following circumstances: a. The original decision maker did not consider all the evidence submitted with the original application b. the original decision maker reached an unreasonable decision as to the credibility of the applicant, with immigration rules allow th...