by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
Nationality and Borders Act 2022 and Illegal Migration Bill
Continued relevance of (retained) EU law
It has been said time and again that asylum cases call for consideration with 'the most anxious scrutiny' . . . That is not a mantra to which only lip service should be paid. It recognises the fact that what is at stake in these cases is fundamental human rights, including the right to life itself. (Sivakumar v SSHD  EWCA Civ 1196, per Dyson LJ)
The stakes in asylum and human rights appeals are higher than any other field of litigation yet the exceptional stakes are matched by the exceptional political pressures both on appellants and the appeal process which hinder the effective preparation and determination of these cases.
Two themes run through this book. First, the hearing is only the end of the process. Good advocacy at the hearing can win an appeal (and bad advocacy can lose it). But it is more likely that the appeal was won or lost on the preparation beforehand. Second, the appeal system is just that, not a second round of primary decision-making. It provides a means of testing whether Home Office decisions violate the UK's international obligations. It should not be employed to shore up inadequate Home Office decision-making by drawing judges into trying to formulate a better case against the appellant than the Home Office could manage. Such a distortion of the appeal process only generates cost and delay and so provides ammunition to its detractors. The operation of this jurisdiction is also hampered by what appears to be a systemic inability on the part of the Home Office to engage in sensible negotiation to define and confine issues in advance; its propensity to present a different case at the hearing from any that was disclosed in advance; and frequent failure to comply with judicial directions. The Tribunal has on one occasion been driven to remark that the Home Office's conduct went 'beyond mere institutional incompetence, into the realm of an institutional culture of disregard' for the Tribunal. Despite the roll out of the reform procedure, with its provision for an early Home Office review of the appeal following the filing of evidence and an Appeal Skeleton Argument by the appellant, it remains far too common for the Home Office to fail to meaningfully engage before the appeal hearing.
Neither appellants nor their lawyers can force the Home Office to make quality decisions or to litigate responsibly. But the best way to counter attacks on the appeal system, and to ensure that 'the highest standards of fairness' apply in practice, is to focus attention upon the Home Office's accountability for its decisions and its conduct in an adversarial system, and to discourage judges from being drawn into acting as primary decision-makers. In the words of the Tribunal, it should be made 'perfectly clear to... the Home Office that they cannot simply leave it to [judges] to make bricks without straw on their behalf' (SSHD v Gjurgjei and Others (01/TH/00197)).
This publication deals with the conduct of asylum and human rights appeals. The text is structured in roughly chronological order, starting with the Home Office's reasons for refusal letter followed by procedure, evidence, and presentation of the appeal, and concluding with using the determination. It aims to provide the practical advice and information required to conduct each stage of the appeal according to best practice. The current edition does not deal with challenging a negative determination of the appeal but the strength of the grounds for any challenge to the appeal determination may well depend upon how well the appeal was prepared.
The book is about practice and procedure, not substantive law. It does not purport to provide a contemporaneous statement of substantive law on any particular date. It is no substitute for the current knowledge of asylum and human rights law that any representative must acquire. On the other hand, no effort is made to artificially exclude discussion of points of substantive law where these are intrinsic to the practical conduct of the appeal. The only criterion used is what will most assist in rendering the presentation of the appeal more effective.
The aim is to be of as much use to as many practitioners as possible. Not everything will be relevant to every practitioner. Some will be embarking upon practice in the field from scratch. Others will be more experienced practitioners who have encountered a specific problem for which they want ideas quickly. Some practitioners will work only on certain aspects of the litigation. However, that makes it even more important to appreciate the process as a whole, and why choices made at one stage will reverberate many stages (and sometimes many years) down the line.
Practitioners vary in their knowledge and experience of civil litigation. Different elements of the appeal process vary in their difficulty and complexity, and the nature of this text inevitably varies accordingly. As few assumptions as possible are made about the practitioner's legal background. The book does make two assumptions: first, that the litigation is approached with a commitment which is commensurate with the issues at stake, and second, that there are adequate resources available to permit the proper conduct of the appeal. As to the second, it would be wrong to pretend that best practice could be achieved on inadequate resources. The on-going cuts to public funding and reduction in the availability of publicly funded legal advice and representation means that those resources are even more precious than before.
Social welfare and support issues for appellants are beyond the scope of this guide since they are beyond the power of the Immigration and Asylum Chamber of the Tribunal. But dealing with such issues is not an optional extra. It is integral to best practice in the preparation of an appeal. It is facile, for example, to go to great lengths to provide a supportive environment for taking a torture survivor's statement, yet ignore her living conditions outside the interview room. The latter are likely to have the greater effect on her mental state and her ability to give instructions and to prosecute her appeal. If you are not able to provide social welfare advice, it is essential to make arrangements to ensure that your client has access to it.
As with the previous editions, this electronic edition of the guide shows what can be done when a text is linked to a comprehensive database of legal and policy resources in EIN's website. The vast majority of references in the book can be obtained by a single click. The authors and publishers welcome comments, suggestions, and corrections and the email address to use for these is: firstname.lastname@example.org. These can be incorporated into the electronic text on an ongoing basis.
We have sought to state the law as at 1 May 2023 in this edition, although significant case law developments between 1 May and 31 July 2023 has also been included. This edition contains two new chapters: one on remote hearings (chapter 7A) and one on applications for costs in the First-tier Tribunal (chapter 42), both relatively recent but increasingly important developments. The chapter on remote hearings was informed by a roundtable of practitioners which we convened in February 2023. We are very grateful to all who participated for their time and insight, and special thanks go to Dr Jo Hynes of the Public Law Project, who opened the discussion with a brilliant presentation on the available research about the impact of remote hearings.
We would like to thank the EIN both for funding and publishing this updated electronic edition and for their previous support for the book.
We would also like to add to the acknowledgements of the publishers, our thanks to the Public Law Project for its help with the 2018, 2019, 2020 and 2021 editions The previous editions would not have been published without the Nuffield Foundation's generous funding and the support of the Legal Education Foundation in 2018.
The Nationality and Borders Act 2022 became law on 28 April 2022. The Act's provisions significantly affect – among many other areas of immigration, asylum and nationality law:
• Questions of admissibility
• The assessment of credibility by the Home Office and the Tribunal
• Rights of appeal in cases certified as clearly unfounded and where an asylum or human rights claim is raised in response to a 'Priority Removal Notice'
• The standard of proof for determining asylum claims
• The interpretation of various elements of the Refugee Convention definition
• The speed at which appeals – particularly for those in detention – are determined
• The status which those found to be refugees will be granted (differentiation between refugees – although this has recently been 'paused')
Whilst much of the Act has been brought into force at the time of writing (although most of it only applies to asylum claims made on or after 28 June 2022), certain provisions, including Priority Removal Notice cases and the new detained accelerated appeals, have not yet been brought into force. The Government indicated in March 2023 that it does not intend to bring those provisions into force in the short term, if at all. The reason for this relates to the introduction of the Illegal Migration Bill in the House of Commons on 7 March 2023. That Bill will undermine central elements of the current system of appeals, substantially curtailing access to judicial remedies. A key plank of the Bill is to exclude permanently anyone who enters the UK by irregular means from the asylum determination and appeals system and to remove them from the UK. There is provision for a very limited form of statutory recourse against removal by way of a 'suspensive claim' and appeal, with a permission threshold in certain circumstances and within an expedited timeframe, to the Upper Tribunal directly. However, even success in challenging removal, will not provide access to the asylum determination and appeals system. The effect of these provisions will be to eviscerate the current system of international protection appeals, which has provided a specific right of appeal for asylum since the Asylum and Immigration Appeals Act 1993. Given the Bill has only completed its passage through Parliament on 17 July 2023, we have not in this edition addressed its detail and full effects, rather signposting areas where significant change is expected.
The end of the Brexit transition or implementation period on 31 December 2020 has meant significant changes to the legal framework for immigration and asylum law in the UK. Most of the secondary EU legislation relevant to this text has been retained under the EU (Withdrawal) Act 2018 although it is subject to modification and the Court of Appeal and Supreme Court now have the power to depart from CJEU case law. The text needs to be read with the following points about the continued applicability of EU law in mind.
The Dublin III Regulation has been repealed and replaced by the system of 'admissibility' decisions discussed in chapter 3.
Despite the repeal of the European Communities Act 1972 ('ECA'), the UK regulations which implement the key EU asylum directives (i.e. the Reception Directive, the Procedures Directive and the Qualification Directive) continue to have effect in the UK after the implementation period, unless and until repealed, revoked or amended, by virtue of s2 of the European Union (Withdrawal) Act 2018 ('EUWA 2018'). The relevant Regulations are:
Some parts of the Directives were implemented into UK law through changes to the Immigration Rules; those rules are largely unamended. Section 30(4) of the Nationality and Borders Act 2022 repealed the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Subsequent sections (31-36) of the Act then seek to translate many of the repealed regulations into primary legislation. In general terms any changes in the translated provisions are minor and there is little in terms of substantive change.
However the provisions of the Directives themselves, where different from the UK implementation of them, may only be relied on where they:
(i) Confer directly effective rights on individuals and
(ii) Those rights are 'of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before [31 December 2020] (whether or not as an essential part of the decision in the case)' (s4(2)(b) EUWA 2018)' and
(iii) Are not inconsistent with or otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts, including the Immigration Rules (Immigration and Social Security Coordination (EU Withdrawal) Act 2020, Sch 1, para 6). It should be noted that there is an argument, rejected by the Court of Appeal in R (AAA & Others (Rwanda)) v SSHD  EWCA Civ 745, but in relation to which permission to appeal to the Supreme Court has been granted, as to whether this provision applies at all to EU asylum law (as distinct from EU immigration / free movement law).
What it means for a right to be 'of a kind' 'recognised' in case law has been explored, for example, in the context of asylum support; the Administrative Court rejecting the SSHD's narrow construction of the words (R (NB & others v SSHD)  EWHC 1489 (Admin) at -)In the text we have continued to refer to both the Regulations and the Directives where relevant, and have assumed that all relevant rights have been 'recognised' as such and are not excluded by the 2020 Act rule on inconsistent provisions.
The EU Charter of Fundamental Rights is no longer part of UK law: s5(4) EUWA 2018. However, this is subject to the important caveat that 'fundamental rights and principles which exist irrespective of the Charter' form part of retained EU law: s5(5). References to the Charter rights in retained EU case law are to be read as if they were references to corresponding fundamental rights: s5(5). This provision should be read in light of the fact that the intention of the Charter of Fundamental Rights was to 'reaffirm' and make 'more visible' the fundamental rights and freedoms which were already recognised in EU law (see the Preamble to the Charter, and see Art 6(1) of the Treaty on European Union (TEU)).
In addition, Article 6(3) TEU guarantees fundamental rights, including the rights protected by the European Convention on Human Rights and 'as they result from the constitutional traditions common to the Member States' as 'general principles' of EU law. 'General principles' are part of retained EU law if they were recognised as such by the CJEU before the end of the implementation period (EUWA 2018, Sch 1, para 2). However, they may be relied only for interpretive purposes and not as the basis for holding any action, or any domestic legislation, to be unlawful.
The interplay of these provisions is complex and again, will no doubt be considered by the courts in the near future.
Retained EU law (including retained UK implementing legislation) will continue to be interpreted in line with judgments of the Court of Justice of the European Union ('CJEU') handed down prior to the end of the implementation period (31 December 2020) unless either the Supreme Court or the Court of Appeal decides to depart from them: s6 EUWA 2018 and European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020. Post-implementation period judgments may also be taken into account if relevant: s6(2) EUWA 2018.