Posted on December 05th 2016
Just over a week ago JCWI celebrated an all too rare victory for access to justice after the Government made a U-turn on its colossal increase to fees in the Immigration and Asylum Tribunal (you can read more about the issue and the work JCWI did in gathering evidence and beginning legal proceedings against these measures that would have priced many people out of court here). Still, the Government continues to do all it can to ensure that those people subjected to poor Home Office casework decisions cannot appeal to an independent tribunal.
Last week, new provisions came into force, extending the ‘deport first appeal later’ scheme to all immigration decisions that still retain a right of appeal. This means that the Secretary of State has the power to ‘certify’ immigration appeals as only pursuable from abroad, where she judges that this will not cause “serious or irreversible harm”. Since 2014, the scheme has applied to foreign national offenders challenging deportation decisions. From yesterday, the law extends its application to most people appealing an immigration decision, meaning that they can be removed from the UK first and forced to appeal from abroad. This undermines fair and effective access to justice for migrants and will cause gross injustice for families living in the UK.
New guidance issued yesterday states that implementation will be phased and will not at first apply to anyone who had outstanding leave at the time they made a human rights claim or those whose claim relies on their relationship with a British family member. However, the intention to extend to further cases remains.
The Home Office has good reason for avoiding the tribunals. Home Office decision making is appalling and strewn with errors and frequent wrong decisions. This is a not altogether unexpected consequence of allowing gap year students to decide asylum claims. For example, between October and December 2015, 41% of appeals against Home Office decisions were allowed in the First-tier Tribunal. The Parliamentary and Health Service Ombudsman has revealed serious problems with Home Office decision-making, upholding 70% of complaints made.
By forcing people to leave the country before an independent tribunal gets to hear their appeal, the Government is massively reducing the chances that they will be able to appeal and, if they do, that they will be able to get a fair hearing. In the year since ‘deport first appeal later’ was brought in for offenders the number of appeals against deportation dropped substantially. Strikingly, the success rates of appeals brought out of country was half that of those brought in country the year before.
There are many reasons why this has happened. Forced removal has a significant psychological impact, particularly as people may be removed to countries where they have no support network, no funds, may not even speak the language, and are separated from their family. Deadlines for lodging appeals are short, and it is difficult to manage while also looking for housing and dealing with all of the additional stress and problems that come with moving to a different country. It is also much harder to gather evidence to support your appeal from abroad and to instruct solicitors. Those appealing a Home Office decision are likely to need to show the court copious documentary evidence of their life in the UK, difficult to gather from outside the UK. Witness evidence from friends and colleagues is also far harder to organise. In addition, court video links are frequently unreliable or unavailable, and friends and family may lose hope once their family member is removed from the UK.
The Government is chipping slowly away at the rights of people to access the courts and to get a fair hearing. These new provisions, when combined with cuts to legal aid, removal of appeal routes altogether, and a continued intent to raise court fees means that it is harder than ever to hold the Home Office to account for decisions that are wrong and cause devastation to individual and families who have made their lives here. However, last week’s turnaround on Tribunal fees shows that we must continue to do everything in our power to challenge these regressive policies, and to protect access to justice so that we have an immigration system that is transparent and fair.
JCWI is gathering evidence on the effects of out-of-country appeals. If you, a family member, or a client has had an appeal certified as only appealable from abroad please do get in touch with our policy team at firstname.lastname@example.org.
We are very concerned about people being denied a fair chance to appeal and it is only by getting information from the public that we can challenge these harsh new measures.