The Immigration Act 2016 introduces a new practice in the appeal procedure, known as “remove first, appeal later”. Until now immigrants applying for extension of leave to remain as the spouse or parent of a British citizen had the right to challenge refusal of their application without having to leave the UK. This is about to change. Briefing to the Lords’ Committee of January 2016 gives the background rationale for this measure.
From 1st December 2016 the right to challenge a decision in country will be controlled by administrative decision makers who will have a new power to certify removal of the immigrant as lawful under section 6 of the Human Rights Act and remove the appellant from the UK without waiting for the outcome of the appeal.
At present only applications involving aspects of family life in the UK and applications for leave to remain on the basis of long residence are associated with appeal rights. From now on, in country right of appeal will be granted only in those cases where there is a risk of serious irreversible harm or “other breach of human rights if the person is removed before the appeal”. Reference to “other breach of human rights” does not include breach of right to respect for family life, although this may potentially be argued in cases involving separating parents and children. Loss of employment, home or separation from the spouse is not viewed as circumstances of sufficient severity to warrant an incountry right of appeal.
An example given by the Home Office to illustrate the meaning of “serious irreversible harm” is a situation where a child who is at school in the UK would have no choice but to accompany the parent abroad until appeal is decided and this would lead to significant interruption of the child’s education. The example does not mention the status of the child thus affected. It is expected that the child is expected to be either settled in the UK or have an independent claim to the right to reside.
The new power of the Home Office to certify removal as consistent with the government’s obligations under the Human Rights Act can be challenged by judicial review. However, it is likely that the test of “serious irreversible harm” will be upheld by the courts. This seriously limits the ambit of the Human Rights Act in its classical form, but reserves some protection for those who are at risk of torture or death in the country of origin.
You can read more on what remains of immigration appeals here.