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Immigration Act 2016 will bring about new changes to the appeal process as well as human rights applications.
Appeals within the UK: certification of human rights claims
This change delivers the manifesto commitment to expand the use of the ‘deport first appeal later’ power. It has long been established that in some cases a person can be removed or deported before their appeal is brought or heard. The last Labour government introduced powers in 2002 to certify that a person making a ‘clearly unfounded’ asylum or human rights claim could be removed prior to bringing their appeal. Then the 2014 Immigration Act created the power to allow arguable claims from foreign national offenders to be certified so that the appeal must be brought from outside the UK where removal pending the appeal would not cause serious irreversible harm or otherwise be in breach of the person’s Convention rights (or the rights of any other person affected by the decision).
This power is commonly called ‘deport first, appeal later’ Clause 34 will extend that power so it applies to all cases where a person has made a human rights claim, been refused and has an appeal against that refusal, provided that requiring the appeal to be brought from overseas would not cause serious irreversible harm or otherwise breach human rights. There is a public interest in maintaining effective immigration control. In the first year that the Immigration Act 2014 was in force, over 230 foreign national offenders were removed before their appeal was heard. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers. Previously, most of these individuals would not have left the UK until their appeal had been determined.
This change will mean more prompt removals in other human rights cases and prevent people whose human rights claims have been refused from building up their private or family life while they wait for their appeal to be determined, where an appeal from outside the UK would not breach their human rights or those of any other person. Appeals can continue to be brought from within the UK where an asylum claim has been refused (provided it is not clearly unfounded) or where a human rights claim has been refused (provided it is not clearly unfounded) and there is a real risk of serious irreversible harm or other breach of human rights if the person is removed before the appeal.