If your claim on human rights was refused before 6 April 2015, please note that there is a new Home Office policy on reconsideration of old human rights claims that were refused before the above date with no right of appeal.
This new policy is relevant to any human rights application made by an individual or family and the application was refused with no right of appeal because no removal decision was made. Under the new appeals regime introduced by the Immigration Act 2014 from 6 April 2014, no removal decision is needed for a right of appeal, only refusal of a human rights claim.
The policy states that decisions will be reconsidered where:
• the refused application for leave to remain included a dependent child under 18 who had been resident in the UK for three years or more at the time of application
• the applicant has a dependent child under the age of 18 who is a British citizen
• the applicant is being supported by the Home Office or has provided evidence
• of being supported by a local authority in accordance with a duty in legislation there are exceptional and compelling reasons to reconsider the decision at this time, or
• it is operationally expedient or appropriate to reconsider the decision
As long as one of the above criteria is satisfied, the decision will be reconsidered and either refused again or leave may be granted. Whether a subsequent refusal will give rise to a right of appeal is not clear and only time will tell as more cases arise from this new policy. Certainly, the Home Office policy seems to indicate that any refused claim would be certified and this in itself suggests there will be a right of appeal. The policy is also silent on whether the NHS surcharge will need to be paid.
If one does not meet any of the criteria, then the Home Office has suggested submitting a new application.
Any relevant party should be aware of the following stated in the policy:
‘A person in this situation (i.e. who made a human rights claim which was previously refused without a right of appeal but which would have attracted a right of appeal if it was made under the law as it applies from 6 April 2015) will not be subject to enforced removal without having received an appeal-able decision (subject to certification) subsequent to that refusal.’
However, where the criteria for a reconsideration on request are not met and the person does not make a further application or claim by the appropriate route, the timing of any reconsideration of a previous refusal will be at the discretion of the Secretary of State, taking into account factors such as the imminence of removal.IMMIGRATION SERVICES OUR SERVICES
It is advisable and prudent to obtain legal advice from a specialist immigration solicitor before making any proposed application. Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at firstname.lastname@example.org for more information about Home Office applications.