Commentary on Sections Part 2: Appeals etc Section 15: Right of appeal to First-tier Tribunal
84.Part 5 of the 2002 Act makes provision for statutory appeals to the Immigration and Asylum Chamber of the Tribunal. This section amends the decisions in respect of which an appeal lies to the Tribunal and the grounds that can be raised on appeal.
85.Subsection (2) substitutes a new section 82 of the 2002 Act. The new section 82 provides that a right of appeal to the Tribunal will arise where the Secretary of State has decided to refuse a protection claim, or a human rights claim, or to revoke previously granted protection status. A protection claim is defined as a claim that removal of the person from the UK would breach the UK’s obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Refugee Convention”) or in relation to those who are eligible for a grant of humanitarian protection. Protection status is defined as the grant of leave to an individual as a refugee or a person eligible for humanitarian protection. This right of appeal is subject to the exceptions and limitations set out in Part 5 of the 2002 Act (such as the place from which an appeal must be brought).
86.Section 3C of the 1971 Act provides for the extension of leave until an application is decided and any appeal against the refusal of that application is determined where the application in question was made while the individual had leave and that leave expires without the application having been decided. Section 3D of the 1971 Act provides for the extension of leave until any appeal is determined where a person’s leave is varied so that no leave remains or is revoked.
87.Where an application is refused and there is not a right of appeal, the applicant may be able to apply for an administrative review. The Immigration Rules will set out when an applicant may seek an administrative review. In Schedule 9, Part 4 extends the effect of sections 3C and 3D where an administrative review can be sought or is pending. The question of whether an administrative review is pending will be determined in accordance with the Immigration Rules. The Government has published a statement of intent on how administrative review will operate.(22)
88.Subsection (3) repeals sections 83 and 83A of the 2002 Act. Section 83 provides for an appeal right to arise where asylum has been refused but other leave to enter or remain in the UK of at least 12 months’ duration has been granted. Section 83A provides for an appeal right to arise following revocation of refugee status where, following that revocation, the individual concerned has limited leave to remain in the UK. Sections 83 and 83A are no longer necessary because the changes to section 82 in subsection (2) provide for a right of appeal against the refusal or revocation of asylum or humanitarian protection.
89.Subsection (4) substitutes section 84 of the 2002 Act with a new provision specifying the grounds on which an appeal can be brought under section 82. Where an appeal is brought against the refusal of a protection claim, the appeal must be brought on one or more of the following grounds: that removal would breach the UK’s obligations under the Refugee Convention, removal would breach the UK’s obligations to those eligible for a grant of humanitarian protection, or removal would be unlawful under section 6 of the Human Rights Act 1998. An appeal against the refusal of a human rights claim may only be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998. An appeal against the revocation of refugee status or humanitarian protection may only be brought on the grounds that removal would breach the UK’s obligations under the Refugee Convention or the UK’s obligations to those eligible for a grant of humanitarian protection.
90.Subsection (5) substitutes a new section 85(5) of the 2002 Act which provides that the Tribunal may not consider a new matter unless the Secretary of State has given the Tribunal consent to do so. “New matter” is defined in new section 85(6) as being a ground of appeal within section 84 that the Secretary of State has not previously considered in the context of a decision under section 82(1) or a statement made under section 120 of the 2002 Act. This is to prevent appellants from raising new grounds before the Tribunal before the Secretary of State has had a chance to consider them.
91.Part 4 of Schedule 9 also substitutes a new section 120 of the 2002 Act. The new section 120(2) allows the Secretary of State or an immigration officer to serve a notice on a person who has made a protection or human rights claim, or who has made an application for leave to enter or remain, or who may be removed or deported. Once served with such a notice, the person must provide a statement to the Secretary of State of their reasons and grounds for being permitted to enter or remain in the UK or grounds as to why removal from the UK should not take place. This is the same duty as arose under the previous version of this section. The new version of this section also provides that where an individual requires but does not have leave to enter or remain in the UK or has leave only as a result of it having been extended under section 3C or 3D of the 1971 Act (as amended by Schedule 9 to this Act), this duty is an ongoing duty to raise any such grounds as soon as reasonably practicable. The scope of the duty to raise grounds is restricted to grounds that will, if refused, result in a right of appeal, e.g. protection or human rights grounds.