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Preface: Current effect of the Immigration Act 2014

Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project

The Immigration Act 2014 radically changes the system of appeals to the First-tier Tribunal. Section 19 of the Act which introduces a new Part 5A into the 2002 Act (ss. 117A-117D) entered into force on 28 July 2014 and applies to all appeals considered on or after that date wherever the proportionality of a decision which interferes in Article 8 rights is being considered (see para 1.79E-G). At the time of writing, the remaining new provisions on appeals and removal decisions apply only to two categories of case:

• Where the appellant applied for leave to remain on or after 20 October 2014 as a Tier 4 migrant, or as the partner or child of a Tier 4 migrant;

• "Foreign criminals" as defined in s. 117D(2) of the 2002 Act, and their family members who are liable to deportation under s. 3(5)(b) of the 1971 Act, where:

• The person "became" a foreign criminal on or after 20 October 2014;

• A deportation decision is made on or after 10 November 2014. A 'deportation decision' for these purposes means a decision to make a deportation order; a decision to refuse to revoke a deportation order; or a decision that a person is a foreign criminal to whom the automatic deportation provisions in the UK Borders Act 2007 apply (under s. 32(5) of that Act);

In relation to the first category, the transitional provisions contained in the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014, Articles 9 and 11, are obscure but it appears to be the intention that the new provisions will apply only to prevent an appeal to the Tribunal against the refusal of the Tier 4 application itself, and not to any subsequent application made on different grounds, or to an appeal brought against a subsequent immigration decision other than the refusal of the Tier 4 application itself.

The definition of a "foreign criminal" in s. 117D(2) of the 2002 Act (inserted by s. 19 of the 2014 Act) is:

...a person—

(a) Who is not a British citizen,

(b) Who has been convicted in the United Kingdom of an offence, and

(c) Who—

(i) Has been sentenced to a period of imprisonment of at least 12 months,

(ii) Has been convicted of an offence that has caused serious harm, or

(iii) Is a persistent offender.

It is difficult to see how a person is supposed to know with any degree of certainty when they "become" a foreign criminal for the purposes of (c)(ii) and (iii) in particular. However, it seems that in practice the Home Office, perhaps recognising this uncertainty and the difficulty of applying these transitional provisions, is withdrawing deportation decisions taken between 20 October and 9 November and reissuing them on or after 10 November so as to avoid any ambiguity.

In addition to these two categories, the power introduced by s. 17 of the 2014 Act to certify human rights appeals brought by foreign criminals so that they may only be brought or continued from outside the UK (by insertion of a new s. 94B into the 2002 Act) was brought partially into force from 28 July 2014. Where the Home Office has certified a human rights claim made by a 'foreign criminal' under s. 94B between 28 July and 19 October 2014, s. 92 of the 2002 Act is amended so that the appeal may only be brought from outside the UK. See further chapter 3.

Given the partial implementation of the 2014 Act appeals provisions, this text will refer where relevant to the 'old' provisions, by which we mean the provisions of the 2002 Act as they applied prior to amendment by the 2014 Act, and to the '2014 appeals provisions', by which we mean the 2002 Act as amended by the 2014 Act for those cases for which the amendments have been brought into force.