22 ind immigration appeals presentation
TRANSCRIPT
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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:
Is there a right of appeal?
What can be argued in the appeal?
Where can the appeal be brought?
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Is there a right of appeal?
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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Is there a right of appeal?
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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Jurisdictional issues
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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Jurisdictional issues
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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Jurisdictional issues
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