No deal, no appeal: a case of amending the UK's immigration and social security co-ordination (EU Withdrawal) Bill
By Dr Joe Tomlinson and Byron Karmeba. Originally published here.
‘[I]n this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts.’
– Baroness Hale, R v Secretary of State for the Home Department ex parte Saleem  1 WLR 443, 458
The long-awaited Immigration and Social Security Co-ordination (EU Withdrawal) Bill (‘the Bill’), the legislation making provision for a post-Brexit immigration system, is finally before Parliament. Its stated aim is to ‘end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration; to confer power to modify retained direct EU legislation relating to social security coordination; and for connected purposes.’ As is common with contemporary legislation, the Bill is largely skeletal, providing powers to make further regulations. The flesh of the wider political vision is set out in an accompanying White Paper.
What is not in the Bill is an appeal right to a tribunal for the sizeable number of EU citizens currently residing in the UK and their family members who are likely to make applications under the EU Settlement Scheme. The registration aspects of the Scheme have been widely discussed and new immigration rules have been produced. Yet the topic of effective redress for those who receive an adverse decision under the EU Settlement Scheme has been a much more marginal aspect of policy discussions.
The Bill includes no tribunal appeal right for those making applications under the EU Settlement Scheme. Yet, a commitment to this appears to be in the Withdrawal Agreement. The Bill therefore creates a ‘no deal, no appeal’ situation: if there is a withdrawal agreement, and an associated Withdrawal Agreement (Implementation) Bill inclusive of an appeal right, then applicants under the EU Settlement Scheme will have access to a tribunal appeal; if there is not a deal, inclusive of an appeal right, then applicants under the Settled Status Scheme will only have access to administrative review in some instances.
In this blog, we set out the key reasons why a right of appeal against decisions made under the Scheme should be included in the Immigration and Social Security Co-ordination Bill.
Current key forms of immigration redress
The immigration system is complex. The Immigration Rules are regarded as so complex that they are included in the Law Commission’s 13th Programme of Law Reform, with a view to making them ‘simpler’ and ‘more accessible.’ Notwithstanding the complexity of the Immigration Rules being an impediment to access to justice in this context, very few categories of immigration appeals remain in scope for legal aid after recent reforms. But when it comes to redress for potentially unlawful and unfair immigration decisions, there are three key modes of redress in the present system:
Administrative review. A mechanism whereby another official in the Home Office reviews the papers from the initial decision for casework errors. The decision can then be changed if there is an error. (For an overview of how this process works and recent reforms, see here);
Tribunal appeal. An oral or paper process in the First-tier Tribunal (Immigration and Asylum Chamber) where all aspects of the merits of the initial decision are considered by an independent tribunal judge. The judge can substitute a new decision for the Home Office decision. (For an overview of how this process works and recent reforms, see here); and
Judicial review. A process which, in immigration cases, usually takes place in the Upper Tribunal (Immigration and Asylum Chamber). A judge reviews a decision on the basis of narrow legality grounds (e.g. procedural fairness, human rights) rather than providing a consideration of the full merits. The judge can declare a decision unlawful and the decision then must be retaken afresh by the Home Office. (For background on and analysis of this system, see here).
The current position within the immigration system is that, depending on the type of immigration application being made, some applicants have access to a tribunal while others have access only to administrative review. All have access to judicial review as a last resort.
Recent reforms and their implications
It is difficult to reduce complex system changes that have occurred in recent years into one overarching trend. However, for anyone seeking to establish a general pattern there is one clear dominant trend: that tribunal appeal rights have been restricted, placing greater emphasis on administrative review and perhaps also judicial review. Recent reforms, collectively, represent a profound de-judicialisation of the immigration administrative justice system. Many applicants, who once had the opportunity of a tribunal appeal before an independent judge (before falling back on judicial review), now only have access to administrative review.
There are many ways in which systems of administrative justice can be analysed and the motivations of recent reforms are contested. Though there have been some benefits of de-judicialisation (such as reduced costs for the state and quicker decisions), the available evidence suggests the growing use of administrative review has resulted in a system where individuals are less likely to succeed in overturning their negative immigration decision. Before access to the tribunal was severely restricted by provisions in the Immigration Act 2014, around 49% of appeals were successful. Whereas, over the same period in 2015/16, the success rate for administrative reviews conducted in the UK was 8%, falling to just 3.4% the year after (for a fuller analysis of available data and evidence, see here).
Why a tribunal appeal rights is preferable
Administrative justice systems are complex but it is clear, on the basis of recent experience in the immigration context, that tribunal appeals offer better protection for individuals than administrative review. There are, no doubt, some legitimate reasons to think that tribunals are also imperfect. Immigration appeals have long been criticised on various rounds, including that they are still too inaccessible, at times intimidating, and sometimes produce inconsistent decisions. Yet, at the same time, the tribunal model of redress is robust, familiar, and more trusted than administrative review.
Judicial review, which is broadly seen a constitutional necessity, provides only a narrow legality review which is unable to engage sufficiently with any substantive decision-making issues under the Scheme. It focuses heavily on process. Moreover, immigration cases have long constituted the vast majority of judicial review cases and an increase in caseload pressure could prove problematic.
The Settlement Scheme is a huge and challenging administrative undertaking. The Scheme already includes an innovative experiment in automated decision-making. It should not be the place to experiment with justice too—if not only because the increased use of automated decisions may create new issues which need to be scrutinised carefully. Moreover, because of the recent drastic reduction in the First-tier Tribunal’s workload, the tribunal could be well–placed to deal with Brexit-related appeals. The efficiency of the tribunal may also be assisted by the planned greater use of technology in the tribunal service in the coming months (for background analysis, see here).
No deal, no appeal
Decisions made by the Home Office under the EU Settlement Scheme do not currently attract a tribunal appeal right. As the Home Office indicated in its Statement of Intent on the Settlement Scheme published in June 2018, primary legislation is required to make provision for such a right. At present, only a system of administrative review against some decisions made under this Scheme has been added to the Immigration Rules.
The availability of an appeal right for the Scheme was agreed to in the Withdrawal Agreement between the EU and the UK currently awaiting approval by the UK Parliament. The relevant part of that Withdrawal Agreement provides that the pre-existing safeguards for decisions made under the free movement framework also apply to decisions concerning the residence rights of persons who fall under the scope of the Settlement Scheme. These safeguards principally include ‘the right to access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision.’ Furthermore, under the applicable EU lawincorporated into the Agreement, ‘the redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the [decision] is based.’
This commitment is partly why the UK Government initially promised that a right of appeal against decisions made under the Settlement Scheme would be introduced. In the Government’s own words, ‘this would allow the UK courts to examine the decision to refuse status under the scheme and the facts or circumstances on which the decision was based.’ In the UK system of administrative justice, this can only mean a right of appeal to a tribunal.
Even though the Home Office has now committed to fully implementing the EU Settlement Scheme in the event of the UK withdrawing from the EU without a withdrawal agreement in place—the so-called ‘no-deal scenario’—it seems the Scheme will be without the right of appeal repeatedly promised in previous policy documents. According to a policy paper published by the Department for Existing the EU in December 2018, among other changes to the Settlement Scheme, in the event of a ‘no deal’ Brexit: ‘EU citizens would have the right to challenge a refusal of UK immigration status under the EU Settlement Scheme by way of administrative review and judicial review.’
The situation now therefore seems to be that: if there is a withdrawal agreement, and an associated Withdrawal Agreement (Implementation) Bill inclusive of an appeal right, then applicants under the Settled Status Scheme will have access to a tribunal appeal; if there is not a deal, inclusive of an appeal right, then some applicants under the EU Settlement Scheme will only have access to administrative review. Put simply: no deal, no appeal.
The present position in respect of the Bill is unsatisfactory for at least two important reasons. First, the lack of a right of an appeal generates an unnecessary amount of uncertainty in an already deeply precarious landscape for EU citizens resident in the UK and their families. Second, the position seems to be that the quality of justice EU citizens resident in the UK will be afforded is contingent upon a withdrawal agreement being approved by Parliament and an implementing Bill being enacted before 29 March 2019. Given the short timescale and the contentious politics around the present Withdrawal Agreement it is reasonable to assume that neither approval nor enactment will occur.
We therefore suggest that the following amendment should be made to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill:
When a decision is made under the EU Settlement Scheme in Appendix EU of the Immigration Rules in respect of a person he may appeal to the Tribunal if it relates to a refusal to grant
(a) an application for settled status,
(b) an application for pre-settled status; or
(c) if it relates to an incorrect grant of pre-settled status when the applicant is entitled to settled status under that Appendix to the Immigration Rules.
Provision of sufficient legal aid to allow these appeals to be effective is also critical. This proposed amendment upholds one of the central tenets of justice: that the state provides recourse to an effective mode of redress when an administrative decision which acutely affects the rights of individuals is made.
Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director of the Public Law Project. Byron Karemba is a Research Fellow at the Public Law Project and an Associate Researcher at King’s College London. The authors are grateful for input and comments from Dr Jack Simson Caird, Alison Harvey, Sara Lomri, Polly Brendon, Jo Hickman, and Chai Patel.