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UK Immigration: Are we about to see an overhaul of the judicial process?

There cannot be anyone who has failed to be moved by the appalling deaths of those migrants whose journey to the UK from France has ended in tragedy.

All too often it seems we are hearing news about boats capsizing, children drowning or large numbers of people meeting an untimely end. Even with the severe weather in the Channel at this time of the year making a crossing in a flimsy boat even more dangerous than normal, we are seeing daily attempts to make the crossing, underlining the desperate lengths that migrants are prepared to go to, to reach the UK.

With government policy on how to tackle the ongoing issue still unclear, it seems that some Tories have had enough and are breaking ranks, demanding that the current immigration system needs a massive overhaul.

A recent exclusive article in the Independent claims that senior Tories, including ex-cabinet members David Davis and Andrew Mitchell, have demanded a radical change that will allow migrants to claim refuge at UK embassies anywhere in the world – rather than having to travel to the UK – in a bid to cut the numbers attempting dangerous Channel crossings.

The stark difference in approach taken by Boris Johnson and Priti Patel could not be clearer. They are at the other end of the spectrum and are demanding tighter controls on French beaches and are threatening to “push back” small boats at sea.

The proposed legislative changes

Pauline Latham, a Conservative member of the Commons International Development Committee, is reported as saying that allowing migrants to claim asylum at embassies abroad was “the only viable alternative to the tragedy of deaths in the Channel and the chaos of our current approach”.

Ms. Latham claims that allowing immigrants to claim asylum at embassies abroad will remove the need for asylum seekers to pay thousands of pounds to criminal gangs to smuggle them into Europe and then risk their lives to reach Britain to make their claim.

The Mid Derbyshire MP said: “This feels to me like a genuine win-win. The customer base of the people smugglers would vanish, ending deaths in the Channel and ensuring that people seeking safety here can travel in a humane fashion.

“The UK would be better able to control who arrives here, and anyone arriving without a visa or pre-approved asylum claim would face non-negotiable deportation.”

Ex-cabinet minister David Davis said: “Instead of a policy which is built solely on keeping people out, the government should consider creating a legitimate route in for genuine refugees. Migrants fleeing repression in Iran or famine in war-torn Yemen are not able to apply at British embassies. The only options available to them are either illegal, or dangerous, or both.”

The current immigration judicial system

With the current UK legal stance seemingly on rocky water, it is a good idea to confirm here what the actual legal process currently is in England for those seeking UK residency once they arrive (please note that the process is slightly different in Scotland and Northern Ireland).

If applicants receive a refusal of their asylum or immigration application, and they have the right to appeal, they can appeal at a court called the First-tier Tribunal (the Immigration and Asylum Chamber).

If their appeal is dismissed by the First-tier tribunal, they can then apply for permission to appeal at the Upper Tribunal. However, if the case was then dismissed, applicants can then go to the Court of Appeal.

Applicants will need permission to appeal at the Court of Appeal. They first apply for permission from the Upper Tribunal. See the Tribunal website for more information.

If the Upper Tribunal refuse permission to appeal to the Court of Appeal, applicants can apply for permission directly from the Court of Appeal. See the Tribunal website for more information.

If the case is then refused in the Court of Appeal, the highest court in the UK to which you can appeal is the Supreme Court.

European Courts: The Court of Human Rights

The European Court of Human Rights (ECtHR) is responsible for making sure that member states of the Council of Europe respect the rights protected in the European Convention on Human Rights. The UK is a member state of the Council of Europe, and the European Convention on Human Rights became part of UK law in the year 2000.

Individuals trying to get their asylum/human rights cases heard at the ECtHR usually do so after being refused permission to apply for judicial review. If you are considering applying to the European Court of Human Rights, you should read the court’s guidance document.

Applying to the ECtHR successfully is extremely difficult. An application is only likely to succeed with a very good legal team.

European Courts: The Court of Justice

The European Court of Justice is formally known as the Court of Justice of the European Union (CJEU). The court is responsible for providing advice to national courts about the proper implementation of European law and ensuring that European law is applied equally across member states.

It is very unusual for the European Court of Justice to be involved in individual asylum and human rights cases. A UK court may ask the Court of Justice for clarification on how a particular aspect of European law is to be used.

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