ILPA to Home Office (cc.DCA) 18 August 2005
Appeals clauses of the Immigration, Asylum and Nationality Bill 2005
As agreed, this letter serves to document our
concerns with the appeal provisions in the Bill. We have summarised our
concerns.
We understand from our discussions that the
intention behind the appeals provisions relating to in-country decisions was to
institute a proper ‘one stop appeal’ in which all available grounds would be
raised in a single appeal and that it is proposed that where an adverse
variation decision is taken against a person, the person will at the same time
be served with an Immigration and Asylum Act 1999, s. 10 decision, that there
will be no appeal against any refusal of variation of leave but that the
applicant will be able to raise any ground in respect of the variation decision
in an appeal against the removal decision under the Nationality, Immigration and Asylum Act 2002, s. 82(2)(g). As the Bill is presently drafted, that
appeal against the removal would be out-of-country unless an asylum or human
rights claim is made or the person is an EEA national or a family member of an
EEA national and makes a Community law claim.
We further note that it remains undecided whether in the proposed Bill
and regulations that appeal would be in-country or out-of-country.
As we indicated, we are strongly opposed to (a)
the one stop appeal being out-of-country; (b) that a person will not be able to
appeal against a variation decision until and unless he or she is subject to a
removal decision (c) that the institution of an effective ‘one stop appeal’ is
seen to necessitate the abolition of variation appeals and (d) that section 3C
of the 1971 Act has been modified so that the leave to remain of an in-time
applicant is not deemed to run during the appeal process.
Before dealing with the substantive provisions, it is
useful to summarise our general concerns.
The creation of illegality
ILPA’s concern is that the Bill has fundamentally changed
certain of the important working assumptions in immigration control and that
these changes will have significant, ongoing, adverse effects on the workings
of immigration law and practice. It is a truism that the present arrangements
make a clear distinction between persons who are compliant, who are within the
Rules and/or policy, and those who have themselves breached immigration law,
either by overstaying or illegal entry. The Bill and its associated
arrangements will change this by the proposed modification to the section 3C
deemed leave provision. Persons seeking to appeal against the refusal to vary
leave by pursuing an in-country right of appeal against removal (see below)
will be here without leave to remain. The proposed legislative change will
effect the change in status of these applicants from lawful to unlawful. The
applicants have unlawful status because the legislation alters the nature of
their appeal from one against refusal of variation to one against removal. Such
applicants will be pursuing in-country appeal rights granted to them under
legislation but by the terms of the same legislation are here unlawfully.
ILPA is very concerned that these arrangements blur the notion of
immigration irregularity. Persons who are compliant, who were here with leave
having satisfied an ECO, IO or the SSHD that they qualify for leave to enter or
remain under the rules, who made an in-time application to vary their leave,
who are seeking to pursue a lawful appeal right and whom statistics (see below)
show have a high success rate on appeal will be in the UK as overstayers. They
will be committing immigration offences as overstayers. That will be the effect
of an adverse variation decision combined with the abolition of variation
appeals and the repeal of Immigration Act 1971 s. 3C(2)(b) and (c) (leave
extended whilst an appeal might be brought or whilst an appeal is pending) and
Immigration Act 1971 s. 24(1)(b) (criminal offence knowingly to remain in the
UK beyond the time limited by a leave). If a section 82(2)(g) appeal can be brought in country (see below),
appellants will have to commit a criminal offence (overstaying) in order to
exercise the right of appeal.
As soon as a person’s application to extend leave is refused, he or
she will be committing the criminal offence of overstaying. An appellant will not be able to continue in
employment once his or her leave expires (Asylum and Immigration Act 1996, s.
8; Immigration, Asylum and Nationality Bill, c. 11) nor whilst his or her
appeal is pending. If the person had been lawfully
employed and remains in the employment, the employers may also be committing
immigration offences. The appellant’s family and friends may be committing
offences of harbouring and assisting them during the appeal process. Any future application that a person makes to
come back to the UK will be prejudiced by having overstayed in the UK (see HC
395, para. 320(11) – entry and entry clearance normally to be refused on the
ground that a person failed to observe a time limit attached to any previous
grant of leave).
In ILPA’s view this proposed situation is highly
unsatisfactory and unfair. In time it will undermine the distinction between
lawful and unlawful applicants, a distinction which the Home Office has always
sought to enshrine. It gives no incentive to applicants to make an in-time
application for variation. It creates ongoing difficulties in terms of the
calculation (for citizenship/long residence rule purposes) of the term of
lawful residence of persons who successfully win their removal/variation
appeal; as such applicants will have periods of unlawful stay. ILPA sees
difficulties with applicants who lodge variation applications at a PEO and who
may be served with refusal and removal notices in person. The Home Office will
need to explain and educate applicants, educational institutions, employers and
advisers concerning these new provisions. It has implications for all of them.
ILPA is concerned to know how the Home Office proposes to
explain the difference between the contrived illegality of the appeal applicant
and the real illegality of immigration offenders. In our view illegal status
should not be imposed upon applicants simply to create some sort of logic in
the appeal process. We see difficulties for appeal overstayers in explaining
their status to employers, teachers etc and in future travel arrangements when
they are asked if they have overstayed any visa or been subject to removal
proceedings. We see the arrangement as conferring illegality inappropriately
and that the unlawful status that is not absolved by any future rectification.
The person’s record shows that for the appeal term they were in the UK
unlawfully.
ILPA sees no redeeming features in the
proposed changes to the section 3C provisions.
Out-of-country
or in-country appeals
ILPA also considers that it would be profoundly
unfair to require a person to leave the country before being able to appeal
against an adverse variation decision for the following reasons:
a.
persons should be entitled to an adequate
remedy against an administrative decision that, if implemented, would have a
substantial impact on their lives. An
appeal that may only be exercised after the adverse decision has been effected
is wholly inadequate. It has particular deleterious consequences for spouses,
dependent relatives and children who may have to leave families to pursue their
appeals. It also has serious
implications for students who will have to leave their courses or for business
people or work permit holders who have to abandon a business or leave a job to
pursue their appeals. ILPA would expect that universities, colleges, private
schools and employer groups will have serious objections to these proposals
when the full implications of the appeal arrangements are made clear. It has
serious consequences for them personally and can impact on their ability to
attract and retain overseas students and staff.
b.
the previous
point has greater force when regard is had to the fact that over one third of
appeals brought against variation decisions are allowed. It is inappropriate to require appellants to
leave the UK to appeal in circumstances where it is manifest that the Home
Office decision-making is so often wrong.
c.
in many, if not
most, appeals oral evidence given by the appellant is crucial, even
decisive. Preventing appellants from
appealing in-country will prevent them from giving evidence on their own
behalf, will thereby substantially diminish the adequacy of the remedy and will
unfairly confer an overwhelming advantage on the Home Office;
d.
making the appeal
out of country will substantially impede an appellant’s ability to prepare the
appeal and give instructions to his or her lawyer (if he or she has one);
e.
many applicants
denied an in-country appeal right will resort to judicial review or may be
tempted or advised to lodge human rights or asylum claims simply to get an
in-country appeal right. This will increase all legal costs. Overseas
experience (as in Australia) shows that the numbers of unfounded asylum claims
increased when in-country appeals were removed. It is inappropriate to bring in
any measure that distorts and can discredit refugee claims.
In the light of such considerations and the
obligations under ECHR article 13 we would urge retention of an in-country, one
stop appeal. Again ILPA sees no benefit to be gained by this change to the
appeal processes. We understand that this is directed in part to relieving the
burden on the immigration appeals system.
Any gains in their capacity will be lost through increases in costs and
usage in the High Court.
One stop
and variation appeals
ILPA is well aware from the practice experience
of its members that it is not necessary to abolish variation appeals and to
replace them with appeals against removal decisions in order properly to
implement a one-stop procedure. The Nationality, Immigration and Asylum Act 2002
provides the Secretary of State with ample power to prevent repeat appeals.
The form of the
appeal arrangements
ILPA also
disagrees with the form in which the appeal arrangements are to be implemented.
As we indicated in our discussion, our experienced practitioners were unaware
of the full import of these changes because many of the important modifications
are to be in regulations and not in the legislation. Parliament is asked to
vote on changes without having sight of or information concerning the substance
of the changes. This is unsatisfactory for all of us.
You will be aware of the judgement in Saleem
v Secretary Of State For Home Department [2000] EWCA Civ 186 (13 June
2000), 2001 1 WLR 443 and the important principles articulated in that case in
determining whether rule 42(1)(a) of the then Asylum Appeals (Procedure) Rules
1996 was ultra vires the rule making
power contained in section 22 of the Immigration Act 1971. The case has a
revived resonance for these proposed changes both for what it says about the
withdrawal of rights of appeal and concerning the way in which such rights are
withdrawn. For these purposes we simply cite the following:
‘If it is correct that the section
20 right is a fundamental or basic right akin to the right of unimpeded access
to a court, then there is this consequence that infringement of such a right
must be either expressly authorised by Act of Parliament or arise by necessary
implication from an Act of Parliament, see Raymond v Honey (1983) A.C. 1
in the speech of Lord Wilberforce at p.12H - 13C, a speech with which Lord
Elwyn-Jones, Lord Russell and Lord Lowry agreed. Lord Bridge went further
saying at page 14G:
"......I would add a third principle, equally
basic, that a citizen's right to unimpeded access to the courts can only be
taken away by express enactment."
It follows that infringement of
such a right must be either expressly authorised by a provision in an Act of
Parliament or arise by necessary implication. Even where it can be said that
the making of a rule under powers to make rules by subordinate legislation
arises by necessary implication, it will still be in question whether the rule
formulated is reasonable. Even where the need for such a rule does arise by
necessary implication either because the purpose of Parliament cannot be
achieved without it or the function Parliament has laid on a person or body
cannot be discharged without it, the rule will be ultra vires the rule-making power if the rule as framed is
unreasonable: if it is wider than is necessary; if it infringes the fundamental
right to a greater extent than is required.
We hope to hear from you soon in response to
these thoughts. ILPA is very keen to be involved in future discussions on this
important legislative change.