Out of Country Appeals...

Here you will find a brief guide to understanding and naviating the Out of Country Appeal Process. This will be updated regularly. If you need a guide sent to you by email please get in touch. We will have more comprehensive handbooks available online and in print soon. These will also be available in a number of languages.

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1. What are out-of-country appeals?

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When the Home Office refuses an immigration or asylum claim, they may certify it and deny the right to appeal from inside the UK. This guide deals with both asylum (“protection”) claims and human rights claims.

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Instead, you are given the “right” to an out-of-country appeal, meaning that you may be removed/deported before the appeals process. You would then have 28 days (from the date of removal) to lodge an appeal from the country you are removed to.

The Home Office say that when the tribunal considers the appeal of the person removed, the appeal will be considered as if the appellant had not been removed from the UK. However, you will be unable to be physically present at the hearing (unless you are an EEA national). It is expected that you will be present via video-link.

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You will only be able to appeal from within the UK if you can demonstrate that you/your partner or children are likely to suffer from a “real risk” of “serious irreversible harm”, or that it will be a breach of your human rights if they are removed (see the challenging out-of-country appeals section below).

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Since the “deport now, appeal later” scheme began, the number of appeals against deportation brought out-of-country has dropped by 87%. The rate of success on appeal is also far lower than before, decreasing from 26% in the year to April 2013 to 13%. Of the 426 appeals brought since deport first appeal later was introduced, 102 appeals have been determined, of which 13 were allowed and 89 dismissed.

Roots to Return wants to make it clear that we are not encouraging people to pursue out-of-country appeals as an alternative to challenging the Home Office’s refusal of a claim from within the UK, if possible. We believe that an out-of-country appeal should be used as a last resort after all legal and practical avenues for stopping a removal/deportation have been exhausted. Out-of-country appeals encourage people with refused asylum and human rights claims to believe that if they comply with the removals process they may be able to return to the UK, but research suggests that so far out-of-country appeals have a very small success rate, whilst isolating individuals from the communities and support networks in the UK that may be able to help stop a removal.

 

 

2. Who do out-of-country appeals affect?

People who have an asylum or immigration claim that has been refused and certified by the Home Office.

If certification is applied, it means that you can be removed or deported from the UK before you can appeal the refusal of your asylum or human rights claim.

 

Human rights claims:

People with criminal deportation cases – “foreign national offenders” – have been the primary group of people denied an in-country right of appeal for Article 8 cases: right to a private and family life. Their human rights appeal is certified under Section 94B of the Nationality, Immigration and Asylum Act 2002, under the “deport now, appeal later” scheme.

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The 2016 Immigration Act extends this certification power to all immigration cases that hold a right of appeal, under the “remove now, appeal later” scheme. The main group affected by this are people with Article 8 applications for leave to remain in the UK, who can now have their refused claim certified by the Home Office, and are subsequently denied an in-country right of appeal.

People that have Article 8 claims that are labelled by the Home Office as "clearly unfounded" (as mentioned below in relation to asylum claims) will be denied an in-country right of appeal. On page 15 of the Home Office certification guidance, examples are given for when an Article 8 claim may be labelled as "clearly unfounded."

 

Asylum (“protection”) claims:

People who have asylum claims that are labelled as “clearly unfounded” by the Home Office - as a claim "which is so clearly without substance that it is bound to fail" - are certified and denied an in-country right of appeal (Section 94 of the Nationality, Immigration and Asylum Act 2002).

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• For example, when considering an asylum claim, if the Home Office perceive that there is "no objective basis for feared mistreatment", or that there is a "sufficiency of protection" offered by the state in the country of persecution (such as through an "effective legal system for detection, prosecution and punishment of persecutory acts").

• If your designated "country of origin" is one of the listed states (page 26), the Home Office states that it will certify the claim "unless satisfied that the claim is not clearly unfounded."

 

People who have made fresh submissions (either for an asylum or human rights claim) “where that claim could have been made earlier” (e.g. at an earlier appeal) will have their refused claim certified and have to appeal out-of-country – as the Home Office argue that the claim may be “raising matters at the last minute to frustrate removal” (Section 96 of the Nationality, Immigration and Asylum Act 2002).

 

 

3, How do I lodge an out-of-country appeal?

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If you have been given the “right” to an out-of-country appeal, you have 28 days from the date of removal/deportation to lodge the appeal.

You can submit the appeal by fax or post, but appealing online is quicker (you can see an example of the form here). The form is around 12 pages, and is the more straightforward part of the appeals process.

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The administration fee to lodge an out-of-country appeal is £140 for an oral hearing, or £80 for a paper hearing (see fee/legal aid section below).

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Although it is more expensive, it can be advantageous to apply for an oral hearing. An oral hearing will clearly will be much more difficult than if you were able to be physically present at the court in the UK, but being able to represent yourself via video-link is advantageous, particularly if the appeal rests upon your own personal relationship with others in the UK and/or your fear of persecution post-removal. An oral hearing also means that your witnesses can attend, and may demonstrate to the judge that you have a strong support system and clear reasons to be in the UK.

 

You will need your Notice of Decision letter from the Home Office to refer to when lodging an appeal on paper or online. It is important that you list the reasons you disagree with the refusal and removal on the appeal form (in as much detail as possible), and for yourself, so that you know what parts of your appeal you are challenging.

 

• If your asylum claim has been refused, and your main grounds of appeal is that you would face persecution if returned to your  “country of origin”, this means explaining clearly why your removal has breached the UK's obligations under the refugee convention, and in relation to the right to be granted humanitarian protection

• If your human rights claim has been refused, and your main grounds of appeal is that you have lived in the UK for a long time or you have family in the UK, this means explaining clearly why your removal is a breach of the Human Rights Act 1998, and how it is unlawful in relation to the right to a fair hearing. You should specify which article of the Human Rights Act you are appealing under (e.g. Article 8).

• If you have any documents or letters that help support your reasons, you should attach copies of these to the appeal form. You can always add more documents later on.

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Make sure that you provide a contact address or email that you can access from the country you have been removed to. Think about whether there is a friend, family member, or representative in the UK who can be the main point of contact for gathering evidence for your appeal, and receiving the Home Office appeal bundle once you have lodged your appeal. This will be important if you do not have a fixed address post-removal, or if there may be problems with postage or with accessing your emails regularly.

 

 

4. How do I prepare for the appeal hearing?

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It was stated in September 2015 that out-of-country appeals are taking over 18 months to be heard, and then several more weeks to be determined and implemented.

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If you do not have a solicitor who is able to represent you in court, the process of appealing can be much more demanding - but there are still tasks you can do to prepare as best as you can and represent yourself at the appeal (via video-link).

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If you have a criminal deportation case, and are appealing in relation to Article 8, see BID’s useful guides here and here to preparing and representing yourself. The Guide was created for in-country appeals, but the preparation remains the same, as well as documenting the effects of separation since removal on yourself and your family back in the UK. If you have been deported, this will mean that you cannot return to the UK for at least ten years, so the focus will be on the impact of your very long-term absence from the UK.

 

Make a list of and collect all the evidence you want to use to support your appeal, which will need to support your challenge to each of the reasons given in the Home Office Notice of Decision.

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In most Article 8 cases, this evidence will focus on:

• Why it would be unfair to deport you because of the length of time you have lived in the UK.

• The impact on the wellbeing of your children and/or partner.

• For deportation cases, the reasons why you will not reoffend (and a copy of your OASys/NOMS report assessing the risk of reoffending from your Probation Officer or the Home Office).

• How you contribute and add value to your communities in the UK.

 

It may be useful to get a copy of all the documents, records, decisions, notes, etc. that the Home Office have in relation to your case. You can request this by making a “Subject Access Request”, which costs £10. A request form and guidance notes can be downloaded from the Home Office here.

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Contact individuals or organisations that you would like a letter of support from. It is helpful to get an independent professional opinion on the impact that your deportation and long-term absence from the UK would have on you and especially on your family (for example, a letter from your children’s GP or school teachers).

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• The Home Office is required to give primary consideration to the need to safeguard and promote the welfare (or “best interests”) of children in the UK, when making any decision affecting them (such as when considering an Article 8 appeal). So, any reasons and evidence you can gather demonstrating the negative impact your removal/deportation and separation will or has had on your children in the UK can be useful.

 

For both asylum and human rights appeals, draft your witness statement for the appeal. This is an important piece of evidence in your case, as it explains all the reasons why you should not have been removed, and why your asylum or human rights claim still stands in spite of the Home Office refusing it. You should do this by going through the Home Office Notice of Decision letter, as discussed earlier.

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• As you will be unable to be physical present at your court hearing, it is important that the judge has access to a witness statement.

• If you are appealing an Article 8 refusal, see BID’s guide to writing a witness statement, which explains clearly the possible structure and content your witness statement could take, and any supporting evidence that could be useful.

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If possible, contact witnesses – such as family, friends, support workers, probation officers – to see if they are able to attend the hearing and give evidence.

 

So, there are two parts to preparing the appeal:

• Challenging the refusal of your asylum or human rights claim. This should be done as if you are still in the UK.

• Challenging the removal/deportation. This should document the effects of separation since you have been removed/deported, and/or the conditions (e.g. persecution still faced) you are experiencing after leaving the UK.

 

 

5. Do I have to pay a fee, and will I be able to be represented by a solicitor in the UK?

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As mentioned, you are required to pay an administration fee to appeal (£140 oral hearing/£80 paper hearing), unless you receive legal aid.

Access to legal aid may depend on where you were living and where your solicitor was based in the UK before removal/deportation.

• There is legal aid for asylum cases in the whole of the UK.

• There is legal aid for Article 8 claims in Scotland, but not in England and Wales.

The only way it may be possible to get legal aid for an Article 8 case is if you are eligible for exceptional funding: if it can be shown that the refusal of legal aid would breach your rights (e.g. to a private and family life under Article 8).

•         There are five points you must demonstrate your eligibility for in order to be considered for exceptional funding.

•       The UK government has set this at an extremely high threshold, and only a small number of cases get exceptional funding. The solicitor making the application is only paid by legal aid for their time if the application is granted. As this is rare, many solicitors refuse to apply for exceptional funding in the first place, and so you would have to persuade a solicitor that your case is extremely strong and “exceptional”. The majority of legal firms we spoke to in the UK said that they would not consider applying for exceptional funding for an Article 8 claim, unless the case was extraordinary, or that they had previously represented the person removed and knew the case was strong.

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If you are unable to get support from a solicitor in making an application for exceptional funding, in certain cases the Public Law Project may be able to assist.

 

Many firms and individual lawyers say that they do not have the current capacity to take on out-of-country appeals, due to the complexity, long-winded and fairly unknown nature of the process, as well as the low chance of success. Many also prefer it if you have a representative in the UK (such as a family member, friend, or group) who they can stay in contact with regularly on your behalf. However, as discussed earlier, it is possible for you to represent yourself, and gather and prepare evidence in preparation for the appeal.

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For solicitors that will take on an out-of-country appeal, the fee is currently averaging £2500 upwards (excluding the £140 administration fee). Some firms require a consultation appointment first, which can cost anything from £120 to £300 upwards for 1 hour (this would be done over the phone or via skype). You may also be required to pay anything from £350-500 on top of this for a barrister to attend your hearing on your behalf.

 

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Before removal/deportation: If I am still in the UK, how can I challenge certification and an out-of-country appeal?

 

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Challenging certification:

Certification means that you will not have a right of appeal to the First-tier Tribunal. However, you may be able challenge the decision to certify your claim by taking your case to the High Court, through a judicial review. For more information see BID’s guide to certification and judicial review.

 

Challenging an out-of-country appeal right:

You may be able to appeal from within the UK if you can meet the Home Office’s extremely high threshold, and demonstrate that you/your partner or children are likely to suffer from a “real risk” of “serious irreversible harm”, or that it will be a breach of your human rights if they are removed, even for temporary separation while appealing from the country of removal (remember, it may take many months for the appeal to be heard!)

• The Home Office perceives “serious irreversible harm” as cases wherein the person facing removal has a “genuine and subsisting parental relationship with a child [in the UK] who is seriously ill, requires full-time care, and there is no one else who can provide that care”;

• where the person has a “genuine and subsisting long-term relationship with a partner who is seriously ill and requires full-time care because they are unable to care for themselves, and there is no one else, including medical professionals, who can provide that care.”

It is best to gather as much documentary evidence as you can to support each of the reasons (e.g. a letter from a GP or a Social Worker) and attach these to your letter to the Home Office.

It is not considered enough to simply have family in the UK. The Home Office appeals factsheet explicitly notes that “The effect on the family will be considered and some may be separated.” However, Home Office guidance gives an example of where “serious irreversible harm” could result: if the person facing removal is the sole carer of a child who is at school and the child would have no choice but to accompany the parent to live abroad until any appeal is concluded, resulting in a significant interruption to the child’s education.

For more information about this see BID’s guide.

 

Another way the “right” to an out-of-country appeal can be challenged is if you believe that you would face serious obstacles in preparing your appeal against the decision to deport you from the country you face removal to.

The threshold for this is extremely high, as you must show that your removal during the appeal period would “significantly prejudice” your right to a fair hearing of your appeal.

• In a letter to the Home Office, you would need to explain clearly exactly what these obstacles would be: Why the obstacles cannot be overcome; The ways in which these would deny you the opportunity to fully present your case against the decision to deport you to the court. For example, it may be that you have no family or support network in the country the Home Office wants to remove you to. If so, you may have nowhere to live and no means of supporting yourself. You could argue that the need to meet these basic needs would make it very difficult to focus on gathering evidence to prepare your appeal.

• You would need to demonstrate to the Home Office that your partner or family in the UK would be unable or unwilling to provide you with practical support in your home country during the appeal period. For example, they may be in receipt of welfare benefits or on a low income, or simply be unable to take on what may be a long-term financial commitment. (Remember, it can take many months for an appeal to be heard!) They would need to write a letter for you to give to the Home Office to explain why they cannot assist you.

• Gather as much documentary evidence as you can to support each of the reasons, and attach these to your letter to the Home Office.

 

If you do not believe you can meet the these high thresholds for challenging certification or an out-of-country appeal “right”, you may want to use your time in the UK before removal/deportation to begin gathering and preparing reasons and evidence for lodging an out-of-country appeal (see preparing for an appeal section earlier).

• It is important to have the documents needed gathered together in one place, and kept with a friend, family member, or representative in the UK who can help you pursue the appeal from outside of the UK.

• Whilst still in the UK, it may be useful to request all the documents etc. mentioned earlier that the Home Office have relating to your case by making a “Subject Access Request”, which costs £10. A SAR request form and guidance notes can be downloaded from the Home Office here.

• You may want to start thinking about whether you are able to secure a solicitor for the appeal (see earlier), and get any preliminary legal advice before removal deportation.