9-D_SIAC Guidance Note 3: Who has an Immigration Appeal and how is it brought before SIAC?

(i) What decisions give rise to appeal rights? (a) Immigration Decision 1. A person has a right of appeal in immigration matters if an immigration decision (defined in section 82(2) of the Nationality, Immigration and Asylum Act 2002 (NIA)) has been taken. The following are the immigration decisions which arise most commonly in the SIAC context: S82(2)(a) Refusal of leave to enter (LTE) the UK S82(2)(b) Refusal of entry clearance (EC) S82(2)(d) Refusal to vary a person’s leave to enter or remain in the UK if the result of the refusal is that the person has no LTE or LTR S82(2)(e) Variation of a person’s leave to enter or remain in the UK if when the variation takes effect the person has no LTE or LTR (cancellation is variation for these purposes) S82(2)(f) Revocation under section 76 NIA 2002 of indefinite LTE or LTR in the UK S82(2)(j) A decision to make a deportation order under section 5(1) of the 1971 Act S82(2)(k) Refusal to revoke a deportation order under section 5(2) of the 1971 Act Points to note:  If a deportation order has been made and the individual has not yet, but wishes to, appeal (eg an uncontested deportation where the individual changes his mind), he must apply for the deportation order to be revoked and can no longer appeal against the notice of intention to deport. It is the refusal to revoke the deportation order that provides a right of appeal. (See case of T, to be heard Jan 2010.)  References in section 82(2)(d) and (e) to variation of a person’s leave to enter or remain are to the variation of leave generally (rather than to a specific type of leave itself being varied). Therefore a refusal to grant LTR to a person who has LTE is a refusal to vary that person’s leave for the purposes of section 82(2)(d) and will constitute an immigration decision if as a result the individual will have neither LTE nor LTR. If the person continues to have LTE he will have no appeal right but can JR the refusal (although this is unlikely since removal directions are often issued on refusal of LTR which themselves give rise to a right of appeal). And a refusal to grant LTR to a person with DL or Humanitarian Protection will give rise to an appeal if the person is left with no leave at all. The appeal rights are generated when the individual is notified of the immigration decision. The Secretary of State must provide reasons for an immigration decision – see regulation 5 of the Immigration (Notices) Regulations 2003 (S.I. 2003/658). The fact that a decision has been taken on national security grounds is not, in the main, considered to be the reason underlying the decision; rather it’s the basis or grounds for the decision. Therefore wherever possible this should be supplemented with some reasons – eg because the person is a member of a proscribed organisation. The Secretary of State should endeavour to provide as full reasons as possible for an immigration decision.

(b) Other decisions which attract a right of appeal

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2. Other decisions which attract appeal rights are:  Section 83 NIA 2002 provides a right of appeal to a person whose asylum claim has been rejected but who has been granted leave to enter or remain for a period of more than 1 year (whether in a single grant or in aggregate). This includes the grant of discretionary leave for over one year. Such an appeal is in respect of the asylum refusal. Section 83A NIA 2002 provides a right of appeal to a person who has made an asylum claim and has been granted limited leave to enter or remain in the UK as a refugee, who it is decided is not a refugee and in consequence has limited leave to enter or remain otherwise than as a refugee (eg humanitarian protection or discretionary leave (DL)). Section 40A British Nationality Act 1981 provides a right of appeal against a decision to deprive a person of his British nationality under section 40 of that Act.

(c) Exclusion decisions 3. The Secretary of State has a power to exclude a foreign national from the UK where it is conducive to the public good to do so (see SIAC Guidance Note 5: Legal test for nonconducive to the public good: deportation, exclusion and deprivation). A person must be outside of the UK when he is excluded. When that power is exercised by the Secretary of State in person, the Immigration Rules require that any application for entry clearance or leave to enter the UK be refused (see para 320(6) of the Immigration Rules). The power to exclude is either a common law or prerogative power (SIAC has suggested it is a prerogative power see EV v SSHD 2009 para 5). The power must be exercised reasonably, proportionately and consistently. 4. An exclusion decision is not an immigration decision and there is no immigration appeal in respect of such a decision. The individual can instead JR a decision to exclude him from the UK and the JR would be heard by the High Court. However where an immigration decision is taken alongside an exclusion decision (eg refusal of entry clearance or cancellation of existing leave when outside the UK) and SIAC hears the relevant immigration appeal it may also consider the proportionality of the exclusion decision (eg EV v SSHD 2009). For further information see HOLAB Guidance Note: Exclusions.

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(ii) Appeal rights (a) Grounds of appeal 5. An appeal against an immigration decision must be brought on one or more of the following grounds (section 84(1) NIA 2002): (a) The decision is not in accordance with immigration rules (b) The decision is unlawful by virtue of section 19B Race Relations Act 1976 (c) Decision is unlawful under section 6 Human Rights Act 1998 as being incompatible with Convention rights (d) The appellant is an EEA national or member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the UK (e) The decision is otherwise not in accordance with the law (f) The person taking the decision should have exercised differently a discretion conferred by immigration rules (g) That removal of the appellant from the UK in consequence of the immigration decision would breach the UK’s obligations under the Refugee Convention or would be unlawful under section 6 Human Rights Act 1998 as being incompatible with the appellant’s Convention rights (b) Exceptions and limitations to grounds of appeal 6. A number of exceptions and limitations are listed in sections 88 to 99 NIA 2002, some of which are set out below. 7. The grounds of appeal for a refusal of LTE or EC (section 82(2)(a) or (b) NIA 2002) (common in SIAC exclusion cases) can be limited under section 98 NIA 2002 where the Secretary of State certifies that the immigration decision is or was taken (a) by the Secretary of State in person wholly or partly on the ground that the exclusion or removal from the UK of the person is conducive to the public good or (b) in accordance with a direction of the Secretary of State in person which identifies the individual and which is given wholly or partly on that ground. In this way, an appeal in relation to a refusal of LTE is limited to the grounds in section 84(1)(b), (c) and (g) (ie Race Relations Act 1976, human rights, removal inconsistent with Refugee Convention and ECHR). And an appeal in relation to refusal of EC is limited to the grounds in section 84(1)(b) and (c) (ie Race Relations Act 1976, human rights). NB this power only applies to decisions to refuse LTE and EC. 8. SIAC is bound to dismiss such part of an appeal as relates to an asylum claim where the Secretary of State has issued a certificate that the appellant is not entitled to the protection of article 33(1) of the Refugee Convention because article 1F of that Convention applies or article 33(2) of that Convention applies on national security grounds and SIAC agrees with that assessment (section 56 of the Immigration, Asylum and Nationality Act 2006). (c) Is the appeal in or out of country? 9. Section 2(5) of the SIAC Act 1997 confirms that a person only has an in country right of appeal before SIAC if he would have one before the AIT.

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10. Sections 92, 94 and 97A NIA 2002 govern when an appeal is in-country or out of country. Both provisions should be considered in detail. The starting point is that an appeal can be brought in-country if:  it’s in relation to an immigration decision in section 82(2)(c),(d),(e),(f),(ha) or (j) NIA 2002;  the person has entry clearance, arrives at port and is refused leave to enter, unless leave (a) was cancelled on the basis of there being a change of purpose or (b) is refused on the grounds that leave is being sought for a purpose other than that specified in the entry clearance;  if the person has made an asylum claim or a human rights claim while in the UK; or  if the person is an EEA national or member of the family of an EEA national and claims that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the UK. 11. However, under section 94 NIA 2002, the Secretary of State can:  certify a human rights or asylum claim as clearly unfounded, in which case (a) an appeal against an immigration decision in section 82(2)(c)(d)(e) or (ha) is no longer incountry by virtue of section 92(2) and (b) an appeal by an applicant who has made an asylum or human rights claim in the UK will no longer be in-country by virtue of section 92(4)(a) (but see section 94 (6B) for cases in which certification can’t be made);  in a case in which an asylum or human rights claim has been made or in which an EEA national or member of the family of an EEA national claims the decision breaches their rights under the Community treaties in respect of entry to or residence in the UK, certify that it’s proposed to remove the person to a country of which he is not a national or citizen and there is no reason to believe the person’s ECHR rights will be breached in that country, in which case the appeal is no longer in-country by virtue of section 92(4). 12. Furthermore, under section 97A NIA 2002, where the Secretary of State certifies that a decision to make a deportation order was taken on the grounds that a person’s removal from the UK would be in the interests of national security the appellant would not have an in-country right of appeal by virtue of section 92(2) to (3D) or (in respect of an asylum claim) section 92(4)(a) NIA 2002. He would however have an in-country right of appeal by virtue of section 92(4)(a) in respect of a human rights claim unless the Secretary of State has certified that the removal of the person from the UK would not breach the UK’s obligations under the ECHR and his whole appeal would be in-country (national security as well as human rights grounds). Where the Secretary of State has made such a certification the appellant’s only in-country appeal would be to SIAC in respect of the certification – ie the HR claims.

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(iii) Certification of immigration decision to bring before SIAC 13. Appeals against immigration decisions are usually heard by the Asylum and Immigration Tribunal (AIT). In order for an appeal under section 82(1), 83(2) or 83A(2) NIA 2002 to be heard by SIAC the Secretary of State must certify the immigration decision as follows:  The Secretary of State can certify the decision as being taken by the Secretary of State in person wholly or partly in the interests of national security or in the interests of the relationship between the UK and another country (s97(1)(a) NIA 2002); The Secretary of State can certify the decision as being taken in accordance with a direction of the Secretary of State in person which identifies the individual and which is given wholly or partly in the interests of national security or in the interests of the relationship between the UK and another country (s 97(1)(b) NIA 2002) The Secretary of State can in person certify the decision as being taken wholly or partly in reliance on information which in his opinion should not be made public in the interests of national security, in the interests of the relationship between the UK and another country or otherwise in the public interest (section 97(3) NIA 2002).

14. SIAC has jurisdiction in such cases: section 2(1) of the SIAC Act 1997. 15. Appeals against a decision to deprive an individual of his British nationality would usually be heard by the AIT. Where the Secretary of State certifies that the decision was taken wholly in partly in reliance on information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country or otherwise in the public interest the appeal can only be brought before SIAC (section 40A of the British Nationality Act 1981 and section 2B of the SIAC Act 1997). Points to note:  The certification power in section 97(1) need not be exercised by the Secretary of State acting in person whereas the certification power in section 97(3) must be.  When the person is notified of the certification decision he will be issued with SIAC appeal papers. It is possible to notify the individual of the immigration decision before it has been certified under section 97 NIA 2002. However, often the individual is notified of both the decision and the certification at the same time. This means that one set of appeal papers are issued to the individual.

September 2009

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