Since the Immigration Act 1971 there have been immigration appeals from people overseas. As well as appeals for ‘clearly unfounded’ claims, entry clearance appeals are always heard while the appellant is out-of-country.
Out of country appeals in entry clearance cases or clearly unfounded claims can raise human rights issues so looking at how those appeals work now is instructive when considering whether out-of-country appeals are fair and effective. Exercising an appeal right from outside the UK does not mean appeals are less likely to succeed. Internal Home Office statistics for the last 5 years (to July 2015) show that 38% of entry clearance appeals succeed. The Court of Appeal examined overseas appeals in the context of the ‘deport first, appeal later’ power in the Immigration Act 2014, the power we are extending in this bill.
In the case of R (Kiarie and Byndloss) v SSHD [2015] EWCA Civ 1020 the Court of Appeal held that fact that an appeal must be brought from overseas does not of itself breach Convention rights because it provides a remedy ‘that meets the essential requirements of effectiveness and fairness’. The Court of Appeal said that “an out of country appeal will be less advantageous to the appellant than an in-country appeal. But Article 8 does not require the appellant to have access to the best possible appellate procedure or even to the most advantageous procedure available. It requires access to a procedure that meets the essential requirements of effectiveness and fairness”.
The Court confirmed that: “The Secretary of State is entitled… to rely on the specialist immigration judges within the tribunal system to ensure that an appellant is given effective access to the decision-making process and that the process is fair to the appellant, irrespective of whether the appeal is brought in country or out of country”. This reasoning applies to overseas appeals certified under the power in this Bill and is not limited to deportation cases.
Appellants from overseas are able to:
- submit written or documentary evidence;
- provide oral and /or written evidence from family members, friends or others (the determination of an article 8 appeal is more likely to turn on the evidence of family and friends than on complex legal arguments);
- instruct a UK legal representative;
- ask to provide oral evidence visa video-link, Skype or telephone – for which the tribunal will have to make arrangements if it considers such evidence to be necessary to the fair determination of the appeal;
- apply for legal aid under the exceptional funding provisions;
- instruct an expert in the UK or outside the UK to make an assessment and specialist report if required using video conferencing or electronic communications who can given written or, if necessary, oral evidence at the appeal hearing.
If the Tribunal considers oral evidence from the appellant is necessary and it is not possible to provide this electronically, or if the Tribunal otherwise considers that the appellant’s attendance in person is necessary for the fair determination of the appeal, it can require the appellant’s attendance as a witness by summons under rule 15 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 or a similar power in the Upper Tribunal. In relation to preparing evidence for an appeal and presenting it to the Tribunal the Court noted that “There are difficulties for any appellant, particularly an unrepresented defendant, in preparing evidence for an appeal and presenting it to the tribunal, but I do not accept that those difficulties will be so much greater where the appeal is brought out of country as to amount to a denial of effective participation in the decision-making process or to render the procedure unfair.” Individuals will always be asked if there are reasons an effective appeal could not be made from outside the UK and any reasons given will be fully considered as part of the decision whether to certify.
Call ICS Legal on 0207 237 3388 or e-mail us at info@icslegal.com if you require specialist legal advice.
