Challenging decisions: appeals, administrative and judicial review

7.1 Introduction

A report on the immigration asylum appeals system from the human rights and law reform organisation JUSTICE suggests that the tribunals have “become relatively complex and slow in parts of their operation, and overburdened by paper and unnecessary bureaucracy”. The report calls for 49 changes to a system described as “complex, difficult to navigate and subject to relatively frequent changes”.

The report calls for better communication between the various parties involved in the immigration system and calls for regular meetings, convened by resident judges and bringing together lawyers and immigration advisers, the courts and tribunals service, and the Home Office. It also suggests that better Home Office decision making is key to delivering a better appellate system given that half of all decisions that are appealed are overturned.

7.2.1 Appealable decisions

The Upper Tribunal in Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC) has given guidance about what constitutes a human rights claim.

if it appeared from the totality of the information supplied that the appellant was advancing a case which, on the facts, properly required the caseworker to consider whether a discretionary decision to be made under the relevant immigration rule or rules needed to be taken by reference to Article 8 issues, or to look beyond the provisions of the immigration rules and decide, if those rules were not satisfied, whether an Article 8 case was nevertheless also being advanced (Para 28).

In this case the appellant had indefinite leave to remain, but had lost it through being out of the UK for more than two years, caring for a sick relative. The Tribunal held that her application for a visa to return was a human rights claim even though she did not use those words.

7.2.3 Appeals from abroad (see also update to 15.7.1)

QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413  is one of a number of cases considering the impact of Kiarie and Byndloss. Looking at the case law since the Supreme Court judgment, the position seems to be:

  • Out-of-country appeals are not necessarily unlawful (Kiarie and Byndloss)
  • To determine whether they would be unlawful, one needs to look at the factors listed in the case of AJ, including the possibility of giving evidence, the effectiveness of securing legal representation and receiving advice from legal representatives, the possibility of producing an expert or other professional evidence, and the importance of hearing live evidence from the appellant (AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC))
  • Even if it is found that a certification was unlawful, the appellant will not necessarily be allowed to return to the UK after the facts (R (Nixon & Anor) v SSHD [2018] EWCA Civ 3)
  • The First-tier Tribunal is best placed to decide if an individual’s appeal should be heard in the UK, and it should do so by following the AJ guidance (R (Watson) v Secretary of State for the Home Department & Anor (Extant appeal: s94B challenge: forum) [2018] UKUT 165 (IAC).

7.9.2 Funding

On 12 July 2018 the government announced that it would bring immigration matters for unaccompanied and separated children back into scope of legal aid. See

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2018-07-12/HCWS853/