Eroding migrants' appeal rights will result in more judicial reviews

Having completed its second reading in the House of Commons with underwhelming attendance from both sides of the benches, the Immigration Bill is returning from Committee stage this week. Shadow Home Secretary Yvette Cooper announced that Labour will "amend and reform" the Bill as it moves through parliament, but the poor showing and apparent lack of interest by MPs is disappointing given all parties' insistence that immigration is a top issue among constituents.

Since coming to power in 2010, the Conservative-led coalition has vowed to reduce net migration from hundreds to tens of thousands by 2015.

The Bill, set to become our eighth such Act in 17 years, ?aims to curb migration by making the UK a "hostile environment". Together with the government's recent "Go Home" vans and "Leave the UK" text campaigns, it appears more geared towards electioneering than lasting solutions. It seems poised to wreck legitimate appeals of poor decisions, exacerbate racial tensions, and despite the rhetoric from both sides of the benches - broaden the exploitation of undocumented migrants.

Independence lost

One striking feature of the new legislation is the proposal to dramatically reduce the rights of appeal against immigration decisions. Should the Bill receive Royal Assent without amendment, only refusals of refugee or humanitarian protection claims, human rights claims, or revocations of refugee status or humanitarian protection will be appealable, sharply curtailing the number of appealable immigration decisions from 17 to four and replacing most existing grounds for challenges with an internal administrative review.

There is scant information in the Bill about how this process will work, but independence will almost certainly be lost. With a history of poor Home Office decision making, this is bound to be a significant obstacle to a swift and fair immigration system. According to the government's impact assessment, in 2012/13, 49 per cent of all appeals in managed migration cases, 50 per cent of entry clearance appeals and 32 per cent of appeals in deportation and other claims were successful.

The reduction of appealable immigration decisions is likely to result in more judicial reviews. This is certain to result in often prohibitive costs for migrants as well as higher associated public expenditure. The government has been unable to provide an estimate for the cost of the inevitable surge in reviews. Indeed while the impact assessment states that the changes to the appeals system will create a net benefit of £219m over 10 years, it also acknowledges that this is an "overestimate as the costs of the administrative review process and non-suspensive appeal rights are not known." These increases have the potential to offset any proposed savings.

The Immigration Bill also marks a renewed bid to dictate how courts and tribunals determine claims arising under article 8 (the right to a family and private life) of the European Convention on Human Rights (ECHR). In its previous attempt, the government sought to "fill the policy vacuum" and provide a framework for balancing individuals' rights and public interest by introducing changes to the Immigration Rules in July 2012 in order to codify article 8. However, the Court of Appeal in a deportation case recently found that the rules need to be read consistently with article 8, so the application of Strasbourg jurisprudence has withstood the government's assault.

Private life

In response, the proposed law sets out the government's framework (this time through primary legislation) for what the public interest requires in cases involving article 8 rights, potentially undermining judges' discretion to determine cases on their individual facts. The Bill details particular (and often highly political) factors for courts to consider (for example, preferences for English speakers and financially independent individuals) and establishes that, with very few exceptions, it is in the public interest to deport foreign criminals.

It is particularly ironic, in light of Theresa May's professed desire to "scrap the Human Rights Act altogether" and limit ECHR claims, that this approach may have the unintended effect of generating many more such challenges, as appeals are corralled into fewer and narrower channels. Eroding migrants' appeal rights will result in more judicial reviews. Dictating to courts how to assess human rights will result in more litigation. This is yet another Immigration Bill that looks set to cost both the public purse and human rights, while broadcasting a shameful message to visitors from the rest of the world.

 Vanessa Ganguin is a partner at Laura Devine Solicitors