As previously reported in July 2015 Justice Beatson heard the case of R (On the Applications of Mehmood & Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744 and reviewed the Home Office invalidation of appellants’ leave by giving them an out of country right to Appeal. This has now been revisited by the Upper Tribunal more recently in the case of Miah, R (on the application of) v Secretary of State for the Home Department (IJR) [2016] UKUT 23 (IAC) (18 November 2015). Many Applicants are unaware that an incorrect decision may have been made in their case and that they may be entitled to an in country right of appeal.
Facts of Miah
The case of Miah, R (on the application of) v Secretary of State for the Home Department (IJR) [2016] UKUT 23 (IAC) (18 November 2015) involved a Tier 4 student who did not have permission to work and was found to be in breach of his conditions of stay by the Home Office. The Home Office had accused the Tier 4 student of working and a Home Office removal decision was given to him. The Tier 4 student lodged a Judicial Review Application against the Home Office decision to remove him from the UK.
The Upper Tribunal Appeal Decision
Upper Tribunal Judge Blake concluded as per the case of (On the Applications of Mehmood & Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744) that there was an alternative remedy; that is an out of country appeal. This had not been raised by the Home Office until very late in the immigration proceedings and the immigration Tribunal reduced the costs to be awarded to the Home Office from £2,200 to £500. The Judge sitting in the Upper Tribunal was also extremely critical of the solicitors who represented the Applicant, commenting:
Mr Miah will have to pay his own costs of the application, but doubtless his advisers will have to consider whether a discount is appropriate by reason of their own apparent failure to grapple with the decided law and advise him appropriately.
The Judge then highlighted the importance of a skeleton argument along with a bundle of supporting documents which are at times prepared incorrectly by Solicitors.
Serious Irreversible Harm Test: In Country Appeals
Appellants who are served with an out of country right of Appeal are often completely unaware of what is known as the ‘serious irreversible harm test’. This test may reverse an out of country right of Appeal to an in country right of appeal for many Appellants. The Immigration Act 2014  is particularly important when considering this test as it has created the power to allow Appellants subject to deportation; ‘primarily foreign criminals, to be deported first and forced to appeal after their removal…from outside the UK’. However there are exceptions to such a rule and that is where migrants may be faced with what has been termed a ‘serious irreversible harm or a breach of human rights’ if they were to be deported without an in country right of appeal.
Under this threshold the Home Office explains that a person will be able to appeal from within the UK under the following circumstances:
- ‘where an asylum claim has been refused’ (provided it has not been certified);
- ‘where a human rights claim has been refused’ (provided it has not been certified) and;
- ‘where there is a real risk of serious irreversible harm or other breach of human rights if the person is removed before the appeal.’
If the above criteria does apply to a migrant then the person cannot be removed from the UK before their appeal has been determined. In situations such as these an out of country right of Appeal can be reversed to provide Applicants with an in country right of appeal.
Choosing the Right Immigration Lawyers
There is often a misconception by  students, businesses, entrepreneurs and investors alike that law firms without specialisation in immigration law will be in a position to handle the complexities that follow the immigration process. Immigration tribunals are flooded with Applicants who are left vulnerable by what is now a shockingly familiar and depressing pattern in which legal representatives demonstrate a remarkable lack of knowledge and complete disregard for the substantive and procedural rules governing immigration law.
A lack of knowledge demonstrated by some law firms means immigration applications are often made in an incorrect way or with incorrect documents at the initial stage. These may then be immediately rejected by the Home Office and (unlike a refused application which can carry a right of appeal) deemed invalid. This could leave an applicant in muddy waters as they may well find themselves in detention facing imminent removal and if not in detention they may be deemed an overstayer unless corrective action is taken. This can cause unnecessary delay for employers who do not have the benefit of specialised and professional legal advice.
Many Applicants also make the mistake of providing insufficient documentation and thus fail to evidence their recognised entitlement to a right of Appeal. Choosing the right law firm from the beginning can ensure the correct applications are made from the outset this will not only allow for an easy mind in preparing for an application, but will also mean that in the long run sponsors and businesses will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines.
Immigration Advice from Experienced and Professionally Qualified Immigration Solicitors and Barristers
Our team of experienced and professionally qualified immigration solicitors and barristers bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your application by providing you with advice from our leading team of barristers before your matter even reaches the Home Office.
If you have instructed legal representatives and you are unhappy with their conduct you can contact us to discuss your case so that we can provide you with a case assessment. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 02030110276 for a telephone case assessment.