Removal of appeal rights raises significant human rights issues

The Joint Committee on Human Rights warns of considerable human rights implications in limiting rights of appeal

The government’s immigration bill raises significant human rights issues, concludes a report scrutinising the proposed legislative reforms.

The Committee's report, published in early December, says limiting rights of appeal poses a serious threat to the ability of applicants to access the legal system to challenge unlawful immigration decisions.

The proposed changes have largely escaped the media’s attention despite the bill’s restrictions on benefits and access to services having drawn interest.

Currently applicants have a right to appeal against any of the 14 immigration decisions contained within the Nationality, Immigration and Asylum Act 2002, including entry refusals.

The radical changes would see the right of appeal exercisable against just three types of decisions as well as limitations to the grounds that can be raised in appeal.

Under the new provisions, the right of appeal will only exist in regards to asylum or humanitarian protection refusals, revocation of humanitarian protection or refugee status, or refusals of human rights claims.

Appeals in these categories will only be permitted on the ground that the decision in question is unlawful under Section 6 of the Human Rights Act or is in breach of the UK's obligations towards those who meet the criteria for humanitarian protection or refugee status.

Challenges to the lawfulness of decisions in which there may have been a misinterpretation or misapplication of the law or the Immigration Rules, or in which there may have been a failure to take a child’s best interests into account, for example, will not be permitted by appeal.

Such challenges may be able to take place via an administrative review, according to the bill’s explanatory notes. But the Committee has concerns this new review system represents a potential departure from the common law right of access to a court to challenge unlawful administrative decisions.

The government, on the other hand, claims there is no breach of this common law right since appeal rights or access to judicial review will remain available to all migrants, even if not on a full merits-based review on appeal basis.

Yet proposals to reform both legal aid and judicial review may impact on the availability of judicial review as an effective form of remedy, warns the Committee.

The bill, headlined as the government’s centerpiece of its legislative programme and figuring in the Queen’s Speech in 2012, is designed to reduce the pull-factors which attract illegal immigrants, stop abuse of public services and facilitate the removal of people who are in the UK illegally.

Despite having been pushed through its early stages at light speed, it has seemingly disappeared. The delay, due to “a lot of legislation before the House” according to Andrew Lansley, the Leader of the Commons, is more likely down to an amendment tabled by Tory backbencher Nigel Mills.  

The amendment, backed by almost half of all Tory backbenchers, seeks to halt the lifting of labour restriction on Romanians and Bulgarians in the UK. Illegal and unworkable, it is likely the cause of the bill having been pulled and its timetable rescheduled so that it conveniently doesn't reappear until labour controls have been lifted in January.

Committee concerns over other proposed changes in the bill relating to appeals include objections to limiting the court’s power to consider new matter and the reliance on the availability of judicial review as an effective remedy for out-of-country appeals.

Furthermore, the Committee expresses being “uneasy” about the unprecedented provision to give “little weight” to Article 8 claims based on an applicant’s private or family life in immigration cases.

Perhaps glaringly of all, the bill makes no mention of Section 55 of the Borders, Citizenship and Immigration Act 2009 pertaining to children. While the government has clarified nothing in the bill will change the duties outlined in this section, guidelines as to how the provisions in the bill will work alongside those in Section 55 haven’t been issued.

Further stinging criticism of the bill was published earlier this week in a briefing note by the UNHCR. The refugee agency warns the bill could create, “a climate of misunderstanding and ethnic profiling that could undermine the longer-term prospects for integration… and prove detrimental to social cohesion.”

Public concern about the bill to date has largely focused on the effect the new restrictions will have on non-British living in the UK, including legal refugees and asylum seekers, along with others lacking clear-cut immigration status.

However, the impact of the rules on British citizens married to non-EEA spouses applying for entry clearance or further or indefinite leave to remain are significant, with 50 per cent of entry clearance appeals to the First Tier Tribunal currently successful according to government statistics.

Rather than spur any improvement in the UK Border Agency’s well-documented poor decision-making, the bill’s removal of appeal rights looks set to make challenging unlawful administrative decisions even harder or simply impossible.