Commentary on Sections Part 2: Appeals etc Section 17: Place from which appeal may be brought or continued
93.Subsection (2) substitutes section 92 of the 2002 Act. This section governs which appeals can be brought or continued while the appellant remains in the UK. The Secretary of State has various powers of certification in relation to protection claims and human rights claims, and if a claim is certified, then an appeal in relation to it may not be brought or continued from within the UK. So, for example, the Secretary of State may certify a protection or human rights claim under section 94(1) of the 2002 Act if the claim is clearly unfounded, or under section 94(7) if the person is to be removed to a third country where there is no reason to believe that their human rights will be breached. The Act provides an additional power of certification in new section 94B in relation to human rights claims made by persons liable to deportation. Under the existing law, a person is also prevented by Schedule 3 to the 2004 Act from bringing an asylum or human rights appeal from within the UK in certain circumstances where it is proposed to remove him or her to a safe third country. This regime is unchanged by the Act, but is referenced in new section 92.
94.In the case of a human rights claim made outside the UK, any appeal in relation to it must be brought from outside the UK. As for appeals against the revocation of protection status, these must be brought from outside the UK if the decision was made while the person was outside the UK.
95.Subsection (6) of new section 92 provides that where a protection claim appeal is brought or continued from outside the UK, for the purposes of considering whether the grounds of appeal are satisfied, the appeal will be treated as if the person were not outside the UK. This is necessary because the grounds are that the person’s removal breaches the Refugee Convention or the UK’s obligations in relation to persons eligible for a grant of humanitarian protection.
96.Subsection (7) of new section 92 provides that where an appellant brings an appeal from within the UK but leaves the UK before that appeal is finally determined, the appeal is treated as abandoned unless the claim to which the appeal relates has been certified (meaning that the appellant has to continue the appeal from outside the UK).
97.Part 4 of Schedule 9 amends the definition of “human rights claim” for the purposes of appeal rights as contained in section 113 of the 2002 Act. The definition is amended to include a claim that refusal of entry to the UK would be a breach of section 6 of the Human Rights Act 1998. This change makes it clear that there is a right of appeal against the refusal of a human rights claim made outside the UK.
98.Subsection (3) inserts a new section 94B into Part 5, which creates a new certification power for the Secretary of State in relation to a human rights claim made by a person liable to deportation where the Secretary of State considers that the temporary removal of the appellant pending the outcome of an appeal would not breach the UK’s human rights obligations. When considering whether removal of the appellant while an appeal is pending would breach the UK’s human rights obligations, the Secretary of State can, for example, consider that the appellant would not face a real risk of serious irreversible harm as a consequence. Where a claim is certified under this provision, an appeal may only be brought or continued from outside the UK. Deportation orders are used to remove from the UK foreign criminals and others whose presence in the UK is non-conducive to the public good. This provision will not apply to overstayers and illegal entrants who are subject to administrative removal under section 1 of this Act.