Deport first, appeal later is part of the current strategy to cut net migration. As set out in the Immigration Bill 2015-16, the rule has been extended to all immigration appeals and judicial reviews, including where a so-called family life is involved, apart from asylum claims. By radically changing and reducing appeal rights, the Government hopes that it will ultimately curb illegal immigration. The Government says:
“The main benefits of these clauses [in the new Immigration Act] would be dealing with those who should not be here, by rooting out illegal immigrants and boosting removals and deportations.”
What does it entail?
The first measure set to remove individuals who have yet to acquire legal status in the UK and crack down on those slipping through the continually-widening net is the introduction of satellite tracking those subject to outstanding deportation orders/proceedings. This is a step up from the current use of electronic monitoring, of which Home Office guidance clearly states that “tagging is not tracking”. Violations of the current monitoring system result in detention. It is likely that this would still be the case in breaches of tracking procedures; however, the most profound impact on immigration will stem from changes to the appeal process.
As of 30th June 2015, according to James Brokenshire, Minister for Immigration, figures from the Home Office show that more than 1,000 people have been removed under the tough new provisions since they came into force last year.
Many foreign national offenders have already felt the full force of the changes to appeal rights, following the introduction of deport first, appeal later measures being introduced in July 2014, but, as part of the Queens’ Speech, Mr Cameron announced that the cuts to appeal rights would be extended to all immigrants. As such, all immigration appeals and judicial reviews will be subject to deport first, appeal later measures. It does not apply to asylum claims (it is stated that it will not apply where such measures will cause serious harm), but family life appeals are included and specifically targeted, with the Conservative Manifesto referring to the appeals as a “spurious legal challenge and opportunities to abscond”.
Essentially, this means that Appellants will find that their appeal progresses through the court service whilst they are outside of the UK. Removal will take place despite an outstanding appeal. The appeal will be listed and directions given, Case Management Review Hearings will be heard and evidence compiled all whilst Appellants remain in their country of origin.
Do European human rights apply?
No indications are given for how the UK will satisfy its obligations under Article 6 – the right to a fair trial. Article 6 of the European Convention on Human Rights states:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”
The Government is of the opinion that there is no reason why Appellants need to give their evidence in person where they have already considered the claim substantively on paper prior to removal. However, deporting or removing a person claiming that such action breaches their human rights – without first giving them access to courts for an independent review by a Judge – would appear in breach of this important right.
A recent test case from 24th June 2015 saw a successful challenge in the Court of Appeal on the basis of access to justice and representation. Lord Dyson and Lord Underhill who heard the case indicated that many other challenges were pending behind the outcome of that case. They agreed that an inability to access facilities to provide evidence at a hearing from outside the UK might prove detrimental to the Appellant’s case. This leaves such challenges open to other litigants.
In European Economic Area (EEA) cases of foreign national offenders presently, it is open to an Appellant who has been deported from the UK to apply from their current residence for permission to be temporarily admitted to the UK solely for the purpose of making submissions in person at their appeal hearing (Regulation 24AA). The reconciliation with Article 6 in EEA cases as it stands is that the risk of serious harm will already have been considered and discounted by the Secretary of State prior to removal action taking place.
It would appear that, in order to be able to justify such action, the Government will have to believe that a case is clearly unfounded or that serious harm will not be caused by the deportation action proceeding, and will certify an Appellant’s rights.
To be clearly unfounded, a claim must be so clearly without substance that it is bound to fail. Further, it is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it. Certification is not normally exercised in cases involving British children, but families relocating as an intact unit will face more and more difficulties in avoiding such action. In such cases involving children, the Government will have to demonstrate that they are satisfied that serious harm will not ensue, for either the Appellant, or the British partner and children, as a result of the proposed action. Giving evidence early in the case will assist the Government in making the assessment.
There does, of course, remain the last resort option of Judicial Review action. It is possible to make an application to the Upper Tier of the Tribunal to judicially review the Secretary of State’s decision to certify the human rights claim that will result from the examination of whether the action will cause “serious harm”. Such applications entail a long and arduous process and will leave many applicants in a state of limbo for months at a time, causing applicants uncertainty and an inevitable waste of public funds and court time. Further, the cuts to legal aid mean that most applicants go unrepresented, leaving them with a sense of unease at understanding the minefield of jargon and strict legal processes involved.
It is important to receive advice and representation as soon as possible when the Secretary of State indicates that she is considering deportation. Obtaining sound legal advice early in the process can help to establish key arguments that might prevent the application of a certificate to the case, or even prevent deportation action being taken at all.
by Karen Rimmer and Thalej Vasishta, Paragon Law Immigration experts