The NIAA 2002 (as amended) sets out a system of appeals including a system for a “one stop” comprehensive appeal. The statute establishes the principle that there is one right of appeal against a limited number of decisions made by the Secretary of State for the Home Department (SSHD).
Decisions subject to Appeal Rights
By s82(1) of the NIAA 2002, an appeal can be filed against the decisions of the SSHD to:
- Refuse a protection claim;
- Refuse a human rights claim; or
- Revoke protection status.
Grounds of Appeal
An appeal under s82(1)(a) of the NIAA 2002 (refusal of protection claim) may be brought on one or more of following grounds:
- That removal of the appellant from the UK would breach the UK’s obligations under the refugee Convention;
- That removal of the appellant from the UK would breach the UK’s obligation in relation to persons eligible for a grant of humanitarian protection;
- That removal of the appellant from the UK would be unlawful under s 6 of the HRA 1998(public authority not to act contrary to the ECHR)
When Appeal Rights are Exercisable
Section 92 of the NIAA 2002 determines whether an appeal right is exercisable whilst the appellant is in the UK, or if it can be made only from abroad. The general rule is that were the appellant was outside the UK when he made the claim, he must appeal from outside the UK. When the appellant was inside the UK when he made the claim, he may appeal from within the UK unless the claim has been certified under s 94.
An appeal made from outside the UK is generally compatible with the procedural requirements of Article 8 of the ECHR,in part because evidence can be given by video-link or another form of two-way electronic communication.
The Appeal System
A right of appeal against an appealable decision lies to, in the first place, the First-Tier Tribunal (Immigration and Asylum Chambers) – (FtT)
Either party may file an application against the decision of the FtT, for permission to appeal to Upper Tribunal (UT) on a point of law, first to the FtT and thereafter to the UT directly.
The court of Appeal has the power to give any decision on the UT’s decision.
National Security & Similar Matters
Under the Special Immigration Appeals Commission Act 1997, an appeal may be filed to the Special Immigration Appeals Commission (SIAC) where the SSHD certifies that a decision is taken to exclude or remove a person from the UK:
- In the interests of national security;
- In the interests of the relationship between the UK and other country; or
- otherwise in the public interest.
The I(EEA) regulations 2016 currently give rights of appeal that have been prescribed under EU law for EEA nationals, members of their families and certain non – EEA nationals who are members of a UK national’s family.
By s 94(1) of the NIAA 2002, the Secretary of State for the Home Department may certify that a protection claims or a human rights claim is clearly unfounded.
Team MT UK (Immigration and Human Rights) – Department is there to extend specialist advice and representation on appeal and review matters.