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NEW HOME OFFICE POLICY GUIDANCE – IS THIS A ‘GOLDEN TICKET’ FOR OVERSTAYERS?

Bhogal Partners

28 May 2015

Requests for reconsiderations of human rights or protection based claims refused without right of appeal before 6 April 2015

Home Office Policy Guidance published on the www.gov.uk website on 18 May 2015 titled ‘Requests for reconsideration of Human Rights or Protection based claims refused without right of appeal before 06 April 2015’

The full guidance can be viewed at https://www.gov.uk/government/publications/requests-to-reconsider-human-rights-claims-decided-before-6-april-2015

IMPACT AND CONSEQUENCES ON IMMIGRATION

A vast majority of people may fall under this category, specifically those who have made previous failed Human Rights applications and/or Protection based claims such as Asylum in the UK before 6 April 2015 and with no opportunity of appealing in-country. This Policy means they can have their matters reconsidered which may lead to an appealable immigration decision in-country.

It is the Home Office who ultimately issue these Notices, the ultimate aim here being for the Home Office to cut down and eventually eliminate Judicial Review Claims which are a burden on the public purse.

The current route is either for an overstayer to submit a fresh application and pursue an appeal remedy if one is granted in-country, or go down the Judicial Review route which can be a lengthy and often uncertain process.

With the new Policy guidance, this could mean that where an overstayer (subject to having a previously refused human rights application and/or protection based claim) submits a request for reconsideration, the Home Office are obliged to respond. Notices will be issued to the client requesting for additional grounds to be submitted within a prescribed timeframe. It is this opportunity that could be utilised in a substantial way. Many clients may intend to submit fresh evidence not previously considered by the Home Office, which documents their current private and family life in the UK and/or genuine fear of returning to their country of origin and can use this request for additional information to their advantage.

It provides such clients the opportunity of making representations in effect, knowing that these representations will be considered by the Secretary of State in line with the Policy, whereas previously there was always a risk that although fresh representations were made with new evidence, this would not always oblige the Secretary of State to reconsider the matter, and where it did, the client would almost always be prejudiced in respect of the limitation period of issuing a Judicial Review claim because of the delay by the Secretary of State in responding.

CONCLUSION

This new Policy guidance opens the doors to some extent for those who have overstayed for years having exhausted their resources on failed human rights applications and/or protection based claims. However it is how the client packages and structures the fresh representations in the form of a reconsideration that will engage the Secretary of State’s consideration. This is what will matter if further down the line and upon review and reconsideration, an appeal right is granted in-country.
These opportunities should always be used as ‘golden tickets’ to ensure the client gets the best possible chance in Court. After all, it is the evidence presented upon reconsideration which will be considered in support of any future appeal and further remedy.

Resha Kunaraj LL.B (Hons)
Solicitor
Immigration Department