Rights of appeal - interesting developments - domestic violence cases
24 January 2018
As many readers will know (and as sometimes discussed in this blog), immigration appeal rights have been very significantly reduced in the last few years. Government and Parliament have decided to restrict rights of appeal to the First-Tier Immigration Tribunal to a limited number of categories, mainly human rights/asylum, family and European categories.
The legal mechanism that the Government employed in this respect was surely a rather peculiar one. The relevant legislation in the Immigration Act 2014 states simply that when an application in connection with human rights or asylum is refused then there is the right of appeal - and, by obvious implication, when an application is not in connection with human rights or asylum then there is not a right of appeal.
We know what an asylum case is, but what exactly is a human rights case within the relevant legal meaning? The Home Office decided to define exactly which kinds of immigration application qualify as human rights applications and which do not, but the mechanism they chose to do this was a curious one. Instead of putting this information into the Immigration Act 2014 they chose to put it into the Immigration Rules (which are a large body of rules which generally govern UK immigration).
The Immigration Rules have a very lowly status in the legislative hierarchy: indeed senior judges have opined that they do not properly constitute “legislation”. Their status is certainly far lower than that of primary legislation (ie Acts of Parliament) and, unlike Acts of Parliament, they can be struck down by the courts if the courts think they are unlawful or irrational.
The relevant part of the Immigration Rules in this instance is the part which governs which kinds of immigration application attract the right of “Administrative Review” (which is a relatively unsatisfactory remedy carried out by UKVI officers) if they are refused. Such decisions are described as “eligible decisions”, ie eligible for Administrative Review. Other types of decision are not eligible decisions, and they do
attract the right of appeal to the Tribunal - ie they have a considerably better remedy available.
So this is how you or your lawyer discovers whether or not there is the right of appeal if your particular type of application is refused.
One of the types of decision that was described as an “eligible decision” was a refusal of a visa application as a Businessperson under the Ankara Agreement. This was in line with Home Office thinking, insofar as working visas generally now only have the right to Administrative Review if they are refused.
But the Ankara Agreement Businessperson visa might be “special” because of the “standstill clause”, which is part of the Ankara Agreement between Turkey and the EU and which forbids new restrictions on the rights of such applicants.
As we previously reported (“Immigration Appeal - Is It A Legal Right?”, 8 May 2017), this issue has reached the High Court in a case called “Akturk” and the High Court decided that it had been unlawful of the Home Office to purport to remove the right of appeal for such applicants.
We notice that the Home Office has not changed the relevant Immigration Rule, but this does not necessarily mean anything: they often do not get round to making changes for weeks or months. So those Ankara Agreement Businessperson applicants whose visa applications are refused should have the right of appeal to the First-Tier Tribunal, irrespective of whether the Home Office states that they have such a right.
And the High Court was more recently required to make a similar type of decision, in a case called “AT”, which was a case about a Victim of Domestic Violence application (this is a visa route that confers settlement on somebody who has been a victim of domestic violence). According to the relevant Immigration Rule such an applicant only has the right to Administrative Review, not appeal, if their application is refused. The question before the court was: should a Victim of Domestic Violence application qualify as a human rights application?
The court’s decision was not straightforward: in a nutshell it decided that, depending on the facts, some do and some do not. The court ruled that the relevant rule should be read in the following way: an application for a Victim of Domestic Violence not being a human rights claim
is an eligible decision (ie will not have the right of appeal).
This presumably means that the Home Office will have to decide in each particular case whether they consider a Victim of Domestic Violence application to be a human rights claim - and the Home Office decision about that will presumably be open to legal challenge. This was not a complete victory but it was at least a partial one.
So we have seen to some extent an unravelling of the Home Office’s rather clunky appeals scheme by way of legal decisions.