22 ind immigration appeals presentation

8/6/2019 22 IND Immigration Appeals Presentation

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22_IMMIGRATION APPEALS

2005/2006


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Overview of the session

Is there a right of appeal?

What kind of appeal?

Grounds

In or out of country

The structure of the appeal system

Changes under the 2004 Act

Jurisdictional issues

Error of law

Error of fact Miftari

Any questions?


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The purpose of the statutory appeal

system

To allow people to challenge decisions made in

relation to their immigration status

To provide a system whereby such decisions are

considered by a specialist body with relevantexpertise (the Asylum and Immigration Tribunal)

To provide a single right of appeal at which all

issues relating to a persons immigration status can

be considered

To ensure that where an appellant has no basis forbeing in the country he can be removed at the end

of the process


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Three key questions which should

always be addressed:


What can be argued in the appeal?

Where can the appeal be brought?


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Look at the date of the decision to determinewhich statutory scheme is applicable

If the decision was taken after the 1.4.03 theNationality, Immigration and Asylum Act 2002

applies (Art. 3 Nationality,Immigration and Asylum Act2002 (Commencement No 4)Order 2003)

Section 82(2) lists those decisions which attract aright of appeal to the Asylum and ImmigrationTribunal (immigration decisions)


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Bear in mind the possibility of an upgrade appeal under

section 83 where asylum is refused but leave of more than12 months is granted

EEA nationals are governed by separate regime

(Immigration (European Economic Area) Regulations 2000)

Has a certificate been issued under s.96? If so there is no

right of appeal

Has a certificate been issued under section 97? If so the

appeal is to SIAC

If there is a right of appeal then the affected party must

be given notice of the relevant decision (Immigration

(Notices) Regulations 2003)


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Grounds of appeal

Listed in Section 84(1) of the 2002 Act

Not in accordance with the immigration rules

A discretion under the rules should have been exercised

differently

Racially discriminatory Removal in consequence of the decision would breach the

ECHR or the Refugee Convention

Not otherwise in accordance with the law

That the decision breaches the appellants rights under the

Community Treaties in respect of entry into or residence in

the UK


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Restrictions on the grounds of appeal

The general position under the 2002 Act is that where

an immigration decision has been made any of the

grounds in s.84(1) can be advanced. There are exception

to this.

Has consequence for the type of notice provided- need

not set out appeal rights.

Refusal of EC, LTE and variation cases:

Where the decision has been taken for one of the reasons listed

in section 88(2) of the Act (mandatory grounds for refusal

under the rules)

In LTE cases

Where LTE was sought as a visitor or a student (on certain

course) but has no entry clearance (s.89)


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Restrictions on the grounds of appeal

In entry clearance cases:

Where entry clearance is sought as a non family visitor

(s.90)

Where entry clearance is sought as a student in certain

circumstances (s.91)

Where entry clearance is sought in a category listed inregulations made under s.88A

In such cases the appellant is limited to arguing

that the decision:

Was racially discriminatory

Breached the appellants human rights

That removal would breach the Refugee Convention


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Where can the appeal be brought?

Out of country unless section 92 applies

Broadly speaking two main categories:

Where the nature of the decision is such that the appeal

should be in country e.g. where an application for FLTR is

refuse or leave is curtailed;

Where an asylum or human rights claim has been made.

N.B. EEA ground but does not arise very often

Where an asylum or human rights claim has been

made the appeal will still be out of country if the

Secretary of State certifies that the claim is clearly

unfounded (s.94).


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From decision to appeal

Once a decision under section 82(2), 83 or the

EEA Regulations has been made IND must serve anotice of the decision which sets out the right of

appeal and the grounds on which the appeal can

be brought

The affected party then has to lodge a notice of

appeal within the time limits specified in theAsylum and Immigration Tribunal (Procedure)

Rules 2005:

5 days if detained

10 days if the appeal is in country

28 days if decision received out of country (see r.7)

The appeal papers are then sent to IND


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Determining the appeal

The Tribunal is required to consider and determine all grounds of appeal which

are disclosed in response to the one stop notice by the appellant (s.85(2))

The Tribunal must allow the appeal if it decides that:

The decision was not in accordance with the law

A discretion under the rules should have been exercised differently (s.86)

A direction can be made to give effect to the determination (s.87) but see Boafoand Saribal

A determination is sent to both the parties not later than 10 days after the

hearing (r.22)


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Structure of the appeal

systemThe old system

Previously a two stage tribunal system

Appeal to an adjudicator

Further appeal to the Immigration Appeal Tribunal with

the permission of the Tribunal (High Court review of a

refusal of permission)

Appeals to the IAT could be brought on an error of

fact

CA in Subesh & Ors [2004] EWCA Civ 56 defined an error

in this context as being where the IAT concludes that the

process of reasoning and the application of the relevant

law, require it to adopt a different view.


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Structure of the appeal

system

Changes in the political climate in view of the increase inasylum applications lead to a desire to ensure that appeals

could be dealt with more efficiently

Nationality, Immigration and Asylum Act 2002

Appeals to the IAT to be restricted to cases where the adjudicator

considering the appeal erred in law;

The introduction of the SR process for reviewing refusal of PTA to the IAT

Asylum and Immigration

(Treatment of Claimants etc.) Act

2004 First idea was to retain the two tier system but to attempt to oust any

further review by the courts (the JR ouster).

Compromise lead to the present system which is generously described

as a single tier


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The Single Tier Introduced by s.26 of the Asylum and Immigration

(Treatment of Claimants etc.) Act 2004.

Amended part 5 of the nationality, asylum and

immigration act 2002. The substance of the new

scheme contained in ss.103a-103e.

Provided there is a valid appeal before it the AIT

will usually list the matter for a case management

review hearing.

Important step in the process as the AIT will

consider the composition of the panel that will

eventually hear the matter.

The method of challenging the resulting

determination of the AIT depends upon the

composition of the panel which originally heard

the appeal.


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Onward appeals (


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Onward appeals (


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Transfer from High court to

the Court of Appeal In the rare case where an application for review is made to the High

Court and the High Court takes the view that the appeal raises a

question of law of such importance that it should be decided by the

Court of Appeal it may refer the case to the Court of Appeal (s.103C).

E.g. Zimbabwe litigation

Member of AIT considering an application for review cannot refer cases

in this way (para.30(7) sched.2)


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Onward appeals (


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Onward appeals (


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Onward appeals (


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Onward appeals: 3LQM or following

reconsideration

Where the original appeal has been considered by threeor more legally qualified members (a legal panel)

challenge is always to the Court of Appeal (s.103E)

Where the Tribunal have reconsidered a decision

following an order under section 103A appeal is also to

the Court of Appeal (s.103B) In both cases permission can either be granted by the

AIT or the CA

The Court of Appeals jurisdiction is obviously restricted

to considering if the Tribunal erred in law


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Powers of the Court of Appeal

The Court of Appeal has the following powers to dispose of immigration

appeals before it:

Affirm AIT decision

Make any decision which AIT could have made

Remit to the AIT

Affirm a direction under s.87

Vary a direction under s.87

Give a direction the AIT could have given under s.87


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Error of law

Broadly equivalent to grounds for seeking judicial review

Useful list of common examples in para. 9 of the CA judgment in R(Iran)

& Ors [2005]

Considerable latitude in the way the Court of Appeal approaches theissue

Error has to be material


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Error of fact as error of law

Concept finally endorsed by CA in E&R [2003]

In the following restricted circumstances:

Mistake as to an existing fact

The fact or evidence in question must be uncontentious and objectively verifiable

The appellant must not have been responsible for mistake

The mistake must have been material to the outcome


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Miftari

Following the decision of the Court of Appeal in Miftariit is

clear that in order for the Tribunal on reconsideration or the

Court of Appeal to exercise jurisdiction there must not only

be an error of law in the Tribunals determination, but that

error must have been correctly identified in the grounds on

which permission was sought.

The error of law must also be expressly identified by the AIT

Caused problems when POs and AIT were getting used to

the change to the error of law jurisdiction


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Miftari

Approach the Court of Appeal takes to construction of the

grounds of appeal is rather difficult to predict

InZT v SSHD [2005] EWCA 1421 Buxton LJ stated that:

This court has however also stressed that it will be reluctant to see a

case fail purely on an issue of jurisdiction if it is possible on a fair

reading to extract a point of law from the grounds of appeal.

Arguable as to whether this is always the case


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END

22 ind immigration appeals presentation

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