The High Court recently considered the case of SR (Algeria) v Secretary of State for the Home Department  EWCA Civ 1375 (17 December 2015). The case concerned an Algerian national who had in-country immigration appeal but was involuntarily removed by the Home Office to Algeria. The Home Office having removed the Algerian national against her will then argued that she had abandoned her appeal. The Court of Appeal was less than impressed with the Home office’s position and concluded the matter in favour of the Algerian national and held that she had not abandoned her appeal as claimed by the Home Office.
The Immigration Rules
The Home Office alleged that the Algerian national had abandoned her appeal as per section 92(8) of the Nationality, Immigration and Asylum Act 2002 as per the Immigration Act 2014, which reads:
An appeal under section 82(1) brought by a person while he or she is in the United Kingdom shall be treated as abandoned if the appellant … (b) leaves the United Kingdom.
The Court of Appeal Decision
The Court of Appeal was less than impressed with the Home office’s position and concluded that s.92(8) is only relevant where there is a voluntary departure from the UK, not an involuntary one.
Sales LJ gave the following reasons for his decision:
(i) To my mind, as a matter of ordinary usage, the word “leaves” has a strong connotation of an action being taken by an agent on a voluntary basis (e.g.”The protester did not leave the building but was removed from it by a security guard”);
(iii) Rule of law considerations in this context support the same conclusion. In a state governed by the rule of law, where the state itself is the subject of ongoing litigation, it would breach rule of law principles for the state to be able to defeat the litigation not by defending it on the merits before a court or tribunal, but by physically removing the opposing party so that she is prevented from bringing her claim before a court or tribunal…Accordingly, Parliament must be taken to have intended to use the word “leaves” in the narrow sense referred to above, where it is the voluntary act of the appellant which has the stated effect of the appeal being abandoned;
(v) …the natural interpretation of the word “leaves” in this context is that it connotes voluntary action on the part of the appellant in question.
Sales LJ having given his lengthy reasons allowed the matter in the Appellant’s favour.
The Serious Irreversible Harm Test provides Appellants with an in country Right of Appeal
Some 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 02071830570 for a telephone case assessment.