The Immigration Bill 2015, published on 17th September reaffirmed the conservative plans to introduce the manifesto of ‘Deport first, Appeal later’. In connection with this manifesto Ronke Phillips of ITV NEWS met with Talitha Toor of LEXLAW’s Immigration Team last week to discuss the immigration threshold for migrants with compassionate circumstances such as those facing the widespread Ebola outbreak.
The ITV News interview concerned ‘One of Sierra Leone’s best sprinters’; Jimmy Thoronka who ‘went missing after competing in the Commonwealth Games in Glasgow last year when Ebola swept’ through Sierra Leone. Mr. Thoronka was arrested in March 2015 by immigration officers as a migrant who had overstayed his visa. He made an application for leave to remain in the UK after being offered ‘a sporting scholarship from a London university. Despite widespread support, including a petition with more than 25,000 signatures, his application was refused without an in country right of appeal.’
Mr. Thoronka was informed by the Home Office that his application had been refused and certified as clearly unfounded. This means Mr. Thoronka will have to exercise his appeal right from outside the UK.
UK Home Office & the Conservative manifesto: ‘Deport first, Appeal later’
Mr. Thoronka’s immigration decision is in line with the Conservative government plans to introduce in their manifesto a ‘deport first appeal later’ rule. The ‘deport first, appeal later’ rule has been established by the Immigration Act 2014 which introduced Section 94B into the Nationality, Immigration and Asylum Act 2002. Â
Section 94B of the Nationality, Immigration and Asylum Act 2002Â has enabled the Home Office to certify cases concerning foreign criminals. This means that where a foreign national has committed a crime in the UK and has been served with a deportation decision under Section 94B; he or she will not be entitled to bring an in country appeal against their deportation decision.
The government is now looking to extend this certification under Section 94B across the board to almost all migrants including cases such as Mr. Thoronka’s. The new Immigration Bill of 2015/2016 has made removal of migrants without valid leave in the UK easier by making a person whose human rights claim has been refused, appeal their decision from outside the UK. This is also known as the Home Office power to ‘certify’ a migrant’s human rights claim; as it prevents a migrant from appealing their removal and/or deportation decision in the UK.
Reduction in Appeal Rights
The Immigration Act 2014 not only created the power to allow those subject to deportation; ‘primarily foreign criminals, to be deported first and forced to appeal after their removal…from outside the UK’ but it also drastically ‘reduced the number of rights of appeal against immigration decisions from 17 to 4’.
The Home Office is now planning to introduce this ‘deport first appeal later’ threshold to all migrants. The only exception to such a rule being where a migrant may be faced with what has been termed ‘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 may propose that a person will only 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.
The Serious Irreversible Harm Test
The threshold has not been defined and is case specific but there is Home Office guidance which sheds light on the exceptions to the rule. The guidance can be found here and in particular highlights the following examples of when the test might be met by a migrant:
- the person has a genuine and subsisting parental relationship with a child who is seriously ill, requires full-time care, and there is no one else who can provide that care;
- the person has a genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else, including medical professionals, who can provide that care.
What this will mean for Appellants whose cases have been certified
There remain a number of unanswered questions for what is essentially an impossible threshold set by the government. There are yet to be provisions for the facilitation of an out of country appeal. The facilities which may be used from abroad in an out of country appeal will have to be funded by the appellants. This will include the video link, the use of a room at the British High Commission, security personnel, technological personnel. It seems the answer to such questions is either an appellant will be one whom upon return will have no difficulty funding such Court facilities or they will simply not have the right to exercise a right of appeal. This may be due to a number of reasons out of an Appellant’s control. The are currently no provisions in respect of the consequence of an out of country appeal being allowed. This leaves migrants subject to this ‘deport first appeal later’ rule in a state of limbo.
These are just a few questions which may arise in respect of facilitating a hearing, there are many more that remain unanswered where an appeal has been certified under S.94B.
Our team of experienced and professionally qualified immigration solicitors and barristers
Our Solicitor; Talitha Toor explained in the interview with ITV News that ‘things are quite tough with immigration…it’s hard for certain applications to meet certain thresholds and criteria its something that is quite difficult at the moment’. A lack of knowledge demonstrated by some applicants and 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.
Choosing the right law firm from the beginning will not only allow for an easy mind in preparing for an application, but will also mean that in the long run applicants will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines.
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 0845 8622 529 for a free telephone assessment and free case assessment.