Immigration appeals - do you have the right?
28 April 2018
Because of some draconian provisions in the Immigration Act 2014 the rights of appeal to the Immigration Tribunal in the event of visa application refusals have been significantly reduced. Many categories of visa - including most study and work routes - have had the right of appeal removed.
EEA visa refusals retain the right of appeal (because the UK did not have the legal power to remove it) and so do asylum and "human rights" cases. But what is a "human rights" case exactly? The operative definition is broader than one might expect. The Home Office considers that family applications and long residence applications have an intrinsically
human rights character, and the Home Office accepts that a refusal in either of those categories still attracts the right of appeal.
But - and a very important legal point - the Home Office cannot create
the right of appeal. Either a right of appeal exists or it does not. So if an application truly constitutes a "human rights" then there is the right of appeal if it is refused no matter what the Home Office thinks.
The Upper Immigration Tribunal has recently made a very interesting and indeed very useful decision on this subject: the case is called "Baihinga".
The story is a bit confusing, and it relates to a "returning resident" application. As some readers may know, a returning resident application is an application made by a person who has previously been granted indefinite leave (ie settlement) but who has stayed outside the UK for a long period and may thus have lost their indefinite leave. (The basic rule about this is that if you stay outside the UK for more than two years you may lose it.)
Returning resident is not a category of application that the Home Office now recognises as having the right of appeal if it is refused. But when Ms Baihinga made such an application from Sierre Leone and it was refused the decision-maker stated that there was a right of appeal, because the new legislation in the Immigration Act 2014 had not yet taken effect.
So she appealed and the case was administratively processed by the lower tier of the Tribunal, ie the First-Tier Tribunal. But at the hearing before the Tribunal the Home Office’s legal representative tried to argue - and despite what the refusal decision had said - that really there was no right of appeal because of the new legislation and because the returning resident category was not a category of application that the Home Office recognised as having the right of appeal if refused. So - the legal representative maintained - there was no right of appeal, the case could therefore not be heard by the Tribunal, and they should all pack up and go home.
A bit unfair you might think, but not unknown within the range of Home Office behaviour patterns. But, fortunately for the Appellant, things were not going to be that simple. Although the Immigration Judge eventually decided to agree with the Home Office’s position, the case ultimately reached the Upper Tribunal, which had a few stern words to say.
The Upper Tribunal entirely accepted (and indeed as per the Tribunal rules) that the fact that a case is initially accepted by the First-Tier Tribunal does not mean that there truly is the right of appeal. It is quite legally possible for the First-Tier Tribunal, at the hearing, to decide that there is no right of appeal, and on that basis decline to hear the case.
But in this instance it was by no means clear that there should not be a right of appeal, because it was highly arguable that the appellant’s application, because of its facts and circumstances (concerning the appellant’s various family members), did constitute a "human rights" application. The fact that the returning resident application is not on the Home Office "list" of appealable decisions was not material.
So the Upper Tribunal decided that the First-Tier Tribunal judge had got it wrong. The application, because of its character, was
a human rights application and therefore there was the right of appeal and therefore the First-Tier Tribunal had to crack on and hear the appellant’s case.
For some migrants this judgement is likely to be very useful. A visa application, although not primarily a human rights application, may nonetheless constitute a human rights application within the relevant legal meaning if its facts engage human rights issues. If the application is deemed to be a human rights application then there will be the right of appeal to the Tribunal should it be refused and, as everybody knows, an appeal before the Tribunal is by far the best way of challenging a decision.
You are well advised to consult a good lawyer if you think you may be in this kind of situation.