Although full appeal rights for most immigration applications have now ended following changes introduced under the Immigration Act 2014, the limitations introduced are not as far ranging as previously feared.
The new provisions include a right of appeal against the refusal of a ‘human rights claim’ which is defined in law as:
‘a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the UK or to refuse him entry to the UK would be unlawful under section 6 of the Human Rights Act.’
Whereas previously a right of appeal would only exist if the Applicant had valid leave to remain when they submitted their application the new provisions have no such requirement. This means that individuals without status will also now benefit from a right of appeal against a valid human rights claim whereas previously their only legal remedy against a refusal was by way of a judicial review application.
As the Home Office accept that most family member applications will implicitly include a human rights claim, a right of appeal for most family applications still remains.
However, given the broad definition of ‘human rights claim’ there appears nothing to prevent a human rights claim being made alongside other types of application. For example a Points Based System application from a student or economic migrant who has an established private life in the UK or indeed for a family visit visa application could if presented properly feasibly constitute a ‘human rights claim’, thereby attracting a right of appeal if refused.
In order to preserve a right of appeal it is imperative that applicants not only consider whether they qualify for leave/entry clearance under the Immigration Rules but also give some thought as to whether they have human rights claim which could generate an appeal right.
With the government proposing further changes limiting in-country appeal rights it seems likely that further amendments will soon be on the horizon making it ever more important to seek advice if these provisions effect you.
We can advise in all aspects of immigration law including advising you on whether you have a valid human rights claim, presenting your application in such way as to preserve your right of appeal where possible. If you would like advice please contact Irfan Ali or call us on 0191 2329547.