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LPC IMMIGRATION SGS 10 APPEALS - law (Foreign national criminals (D.O…
LPC IMMIGRATION SGS 10
APPEALS - law
:lock:
Nationality Immigration and Asylum Act 2002 ('NIAA 2002'
)
Substantially amended by
Immigration Act 2014
- appeal rights further restricted - we will focus on the 'new regime'
Suspensive
appeal - appeal may be brought from within UK :flag-gb:(removal is suspended)
Non-suspensive
appeal - appellant must leave UK before exercising right of appeal :airplane: (no suspension of removal)
:question:- IS THERE A
RIGHT
OF APPEAL?
s.82(1) NIAA 2002
- claims that are appealable
Human rights
claim - to remove the person would be unlawful under s.6 HRA 1998 - most App FM claims come within this category.
EEA
application
Protection
claim - removal would breach Refugee Convention/humanitarian protection rights
:question:-
IF
THERE IS A RIGHT OF APPEAL
IS THERE A RELEVANT
GROUND
OF APPEAL? :
s.84 NIAA 2002
Removal would breach UK's
Refugee Convention
obligations
Removal would breach UK's
humanitarian protection
obligations
Decision is unlawful as contrary to s.6 HRA (ie it breaches applicant's
human rights
under ECHR)
EEA law - decision breaches
Community Treaty rights
of an EEA national / family member (Reg 26 of 2006 Regs)
:question:- IS THE APPEAL
SUSPENSIVE
OR
NON SUSPENSIVE
?
(Suspensive appeals:
s92 NIAA 2002
Certified s94(3)
NIAA 2002 - designated country: HR and/or refugee claim; claim considered; if refused presumption in favour of certification. Appeal from outside UK.
Certified s94(1)
any country; HR and/or refugee claim; claim considered; if claim 'bound to fail': certification. Appeal from outside UK.
Prior to claiming asylum in UK travelled through (safe) EEA country & contact with authorities - certified:
schedule 3 AI(ToC etc)A
&
Dublin Convention
. Claim in relevant EEA country (unless can argue exception(s) apply.
Foreign national criminals
D.O made after 10/11/14 -
no
stat right of appeal
unless
protection, HR or EEA claim: only options are AR/JR. If there is a right of appeal, will be suspensive unless certified. see s.92 & s.94B NIAA 2002. (Note ongoing issue re s94B - not compliant with Art 8 ECHR.)
(
Abu Qatada
http://www.bbc.co.uk/news/uk-23213740
)
(Be aware of transitional appeals)
:unlock: 1. Has the indiv made a
relevant
claim (protection/HR/EEA) (s.82)? See above :arrow_up:
:unlock:2. Does the indiv have a relevant
ground
of appeal(s.84)?
:unlock:3. Is appeal
suspensive
(in country) or
non-suspensive
(out of country) (s.92; s.94; s.94A)?
:unlock:4. If appeal not available - is
Administrative Review
available?
:unlock:5. If AR not available/successful consider
Judicial Review
.
Other (possible) options
Judicial review
Administrative Review
: if client does not fall within appeals regime: may be able to pursue AR if eligible decision. Appendix AR Immig Rules. Determines whether there has been a 'case working error' or the decision was (Wednesbury) unreasonable (i.e. so unreasonable that it would not have been made by a reasonable decision maker).