Immigration Tribunal Appeals - A Practical Guide (3)

Publication Date19 July 2021
SubjectGovernment, Public Sector, Immigration, Human Rights, General Immigration
Law FirmRichmond Chambers Immigration Barristers
AuthorMs Alexandra Pease and Alex Papasotiriou

We recently examined in parts one and two of this practical guide how and on what basis you might lodge an immigration appeal. In this third post, we examine the starting point for an immigration appeal and the legal considerations when appealing against an immigration decision.

The factors and considerations below cannot be considered an exhaustive list. The approach to an immigration appeal will depend on the individual facts and circumstances. There are many practical considerations. You may need to seek specialist legal advice as the presentation of an immigration appeal will be different depending on the issues and available evidence.

Considerations for Immigration Appeals

Human Rights Appeals (On The Basis Of Private And Family Life)

The starting point for any immigration appeal based on human rights is whether Article 8 ECHR is engaged.

In Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393, the Court of Appeal confirmed that Article 8 is not engaged when an individual is refused entry clearance to pursue a private life and no question of proportionality arises for consideration. Article 8 is engaged, however, where family life exists between the appellant and family members in the UK.

Provided that Article 8 is engaged and following Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), when assessing whether a refusal of leave constitutes a proportionate interference with the appellant's right to family life, the first consideration will be the requirements of the Immigration Rules. If it is shown that the Appellant meets the requirements of the Rules, this provides a weighty factor when considering proportionality.

Thereafter, in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109, the Court of Appeal held:

"where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed." [34]

The above were confirmed in OA and others (human rights; "new matter"; s. 120) Nigeria [2019] UKUT 65 (IAC), where it was held that:

"In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to...

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