IMPORTANT TOEIC UPDATE. Directions given for all TOEIC cases in the Court of Appeal on 20 December 2018

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1 1 IMPORTANT TOEIC UPDATE Directions given for all TOEIC cases in the Court of Appeal on 20 December 2018 Following a hearing on 17 December 2018 the Court of Appeal has given important directions (instructions), dated 20 December 2018, regarding the management of all TOEIC cases that are awaiting decisions from the Court of Appeal. According to Home Office figures provided to the Court of Appeal at the hearing, there are at least 334 TOEIC cases pending in the Court of Appeal. It is very important that all individuals are aware of the directions which have been given, and understand what they need to do next. The Court of Appeal s order is linked on our website, and below we summarise the key points. Important note We are providing this information for dissemination primarily so those who do not presently have legal representation will made aware that they must take action as soon as possible to safeguard their position. Please note that this is not legal advice and we strongly recommend that all affected people seek legal advice from a solicitor or an accredited immigration case worker. The Categories The Home Office has divided the pending appeals in the Court of Appeal into two broad categories (A and B). The difference between categories A and B is that, in most cases, those in Category A were granted a right of appeal to the First Tier Tribunal, but only from their home country (i.e. they had to leave the UK to access their right of appeal), whereas those in Category B had no right of appeal at all. The difference arose because of changes made to the immigration appeals regime by the Immigration Act One of the changes was to remove the right of appeal against a decision to curtail leave under section 10 of the Immigration and Asylum Act The difference has important legal implications although the practical implications for the individuals concerned will likely be small. The change came into effect on 6 April If your leave was curtailed under s.10 of the Immigration and Asylum Act 1999 before 6 April 2015 you will be in Category A - If your leave was curtailed under s.10 of the Immigration and Asylum Act 1999 on or after 6 April 2015 you will be in Category B Importantly, although the Immigration Act 2014 removed lots of appeal rights, there is still a right of appeal to the First Tier Tribunal where the Home Office refuses a human rights claim. Following the Court of Appeal s judgment in Ahsan many affected people have made human rights claims which ought to result in a right of appeal to the First Tier Tribunal. The Home Office has identified sub-categories according to additional factors, as set out below.

2 2 The Sub-Categories 1. Cases which the Home Office says should be dismissed (A.1 and B.1) 65 cases These are cases where the Home Office says that the appellant has abandoned their appeal, because they have not complied with some necessary step or responded to letters. The Court of Appeal will write to these appellants requesting that they file and serve a notice of intention to proceed with the appeal by 18 January The Court of Appeal will likely provide the relevant form with their letter. If the appellant does not file and serve the notice of intention to proceed form, the appeal will be dismissed by the Court of Appeal. If the appellant does file and serve the notice of intention to proceed form, the Home Office will have until 1 February 2019 to respond. Note: filing the notice of intention to proceed is sending it to the Court of Appeal; serving the notice of intention to proceed is sending it to the Home Office via their legal representative at the Government Legal Department (see contact information below). If you have not received any letter recently from the Court of Appeal or the Home Office then it is possible that your case is in this category. You should contact the Court of Appeal as soon as possible to check the position. - Category A.1: 48 cases - Category B.1: 17 cases 2. Appeals against removal decisions in which no human rights claim has been raised (A.2(a) and B.2(a)) 75 cases These are cases where the Home Office says that no human rights claim has been made, so there can be no appeal to the First Tier Tribunal. The Home Office proposes that these cases should be remitted (sent back) to the Upper Tribunal for a substantive judicial review hearing. The Home Office plans to settle these appeals by agreeing a consent order with the individual which will conclude the appeal in the Court of Appeal (and send the judicial review back to the Upper Tribunal). If you are in Category A.2(a) or B.2(a) and you have not already received a draft consent order from the Home Office, you should receive one soon. We strongly suggest that you obtain legal advice regarding whether to agree and sign the draft consent order because the terms of settlement will be extremely important in deciding what happens next (and also regarding costs see further below). The Home Office is required to update the Court of Appeal by 31 January 2019 as to how many consent orders have been agreed. If you have not received a draft consent order by this date you should contact the Court of Appeal and the Home Office.

3 3 You could also consider making a human rights claim which should result in a right of appeal to the First Tier Tribunal. Again, we strongly suggest that you obtain legal advice in relation to this issue. - Category A.2(a): 52 cases - Category B.2(b): 23 cases 3. Appeals against removal decisions where an express or implicit human rights claim has been raised (A.2(b) and B.2(b)) 102 cases These are cases where the Home Office accepts that a human rights claim has been made. The Home Office also aims to settle these cases by agreeing a consent order with the individual which will conclude the appeal in the Court of Appeal. The Home Office has indicated that these individuals will be offered the opportunity to make any further submissions about their human rights claim. We strongly suggest that individuals seek legal advice before agreeing a consent order as the terms of settlement will be extremely important in deciding what happens next (and also regarding costs see further below). The Home Office will likely invite the further submissions by issuing a notice under section 120 of the Nationality, Immigration and Asylum Act 2002, known as a section 120 notice or a one stop notice. We strongly recommend that anyone who receives a section 120 notice from the Home Office should obtain legal advice before responding to it. The Home Office will then consider the further human rights submissions and make a new decision. It will either: allow, refuse or refuse and certify the claim as clearly unfounded. Refusal with certification will result in there being no right of appeal within the UK but we understand that certification is unlikely in most cases. It is important to make strong further submissions which will minimise the possibility of a human rights claim being certified. Anyone whose case is certified could consider a judicial review challenging the certification. The Home Office will update the Court of Appeal regarding these cases by 31 January It is likely that most cases in this category will then proceed through a human rights appeal in the First-Tier Tribunal, where you will have the opportunity to prove that you did not cheat on the test by giving evidence. - Category A2(b): 62 cases - Category B2(b): 40 cases 4. Challenges to the certification of human rights claims under section 94 of the Nationality, Immigration and Asylum Act (A.3 and B.3) 85 cases These are cases where the individual has already made a human rights-based claim (including certain immigration applications) which the Home Office certified as being clearly unfounded because of the TOEIC allegation. The individual has then challenged the certification decision by way of judicial review which has led to an appeal to the Court of Appeal. The Home Office intends to withdraw the certification decisions in these cases.

4 4 The Home Office will update the Court of Appeal regarding these cases by 31 January If you are in this category you should receive a draft consent order this month. We strongly suggest that individuals seek legal advice before agreeing a consent order as the terms of settlement will be extremely important in deciding what happens next (and also regarding costs see further below). Once the certification has been withdrawn, it is likely that most cases in this category will then proceed through a human rights appeal in the First-Tier Tribunal. - Category A3: 78 cases - Category B3: 7 cases 5. Appeals which can be disposed of through curtailment error correction (B.4) 7 cases This is a small category of cases. These individuals should receive draft consent orders from the Home Office which will deal with corrections to the basis of the curtailment (see the extract of the Home Office curtailment policy which is appended to the Court of Appeals 20 December 2018 order). We do not have further information about this category and strongly suggest that individuals seek legal advice before agreeing a consent order as the terms of settlement will be extremely important in deciding what happens next (and also regarding costs see further below). - Category B.4: 7 cases 6. Any other cases ( Category 0 or C.1) This is a category of unknown size. The Home Office will notify the court by 31 January 2019 about any cases that do not fit into the categories above. We do not have further information about this category. Costs In some cases the individual will be entitled to have some or all of their legal costs paid by the Home Office. This could include the appeal fee paid to the Court of Appeal and fees paid to solicitors and barristers. It is important that costs are dealt with in the consent order. Your address If you have moved to a new address and not updated the Court of Appeal or the Home Office they might be sending letters to your former address. It is extremely important that you update the Court of Appeal and the Home Office with your new address. You can contact the Court of Appeal using the contact information below. You can you can notify the Home Office of your change of address using their online form:

5 5 Legal advice We strongly recommend that all affected people seek legal advice. For example, you might require advice on: - Whether to accept the Home Office s draft consent order, including the amount of your legal costs that the Home Office offers to pay. - Preparing further human rights submissions to the Home Office, if you are invited to do so or not. - Preparing your appeal in the First-tier Tribunal or your judicial review in the Upper Tribunal. We receive a large number of enquiries and we are unable to assist everyone who contacts us. If you would like to make an enquiry please us at ImmigrationEnquiries@bindmans.com with details of your case and we will let you know whether we can assist. You can also search for solicitors using the Law Society s find a solicitor tool (and you can refine your search to include firms with a legal aid contract and accredited specialists only): Legal Aid Those on a low income or without any regular income might be financially eligible for Legal Aid. Legal Aid is not routinely available for most immigration advice and representation but you can apply for Exceptional Case Funding if your human rights would be threatened by not having legal aid there is more information on our [main TOEIC page](link). Legal Aid is available judicial reviews so if you case is in categories A.2(a) or B.2(a), you should be able to access legal aid for your remitted judicial review in the Upper Tribunal. Next steps Whichever category you are in, it is very important that you read any letters from the Court of Appeal or the Home Office in particular during January 2019, and make sure you respond as soon as possible. If you have not been in touch with the Court of Appeal or Home Office in recent months, there is a risk that you are in category A1 or B1. You should contact the Court of Appeal as soon as possible to check. Your case will be dismissed if you do not file and serve a notice of intention to proceed by 18 January What if my case has already been dismissed by the Court of Appeal? If your case has already been dismissed then this order does not directly apply to you. Some people whose cases were dismissed have applied to the Court of Appeal to have their appeal reopened. Six cases in this category due to be heard in November (R (Rajib) & Ors v SSHD, C8/2016/1036/A). We understand that these cases were settled by consent orders which are in essentially the same terms as the consent orders which the Home Office has proposed in cases which are still live in the Court of Appeal (Categories A.2(b) and B.2(b)).

6 6 This suggests that you should still be able to take advantage of the recent developments in the law to progress your case. You should seek legal advice on what to do next. You may wish to contact the Home Office directly and ask them what they propose to do about your case. Conclusion It is very important that anyone who has an outstanding TOEIC case in the Court of Appeal is aware of the attached order made on 20 December 2018, so please share this page with anyone you know who is affected. Whichever category your case is in, you or your representatives should receive a letter from the Court of Appeal or the Home Office in the next few weeks. If you do not hear from the Court of Appeal or Home Office in the next few days you should contact the Court of Appeal before 18 January 2019 to ensure your case does not get dismissed. Contacts The Court of Appeal contact information is: Civil Appeals Office Room E312 Royal Courts of Justice London WC2A 2LL Telephone: Fax: civilappeals.cmsc@hmcts.gsi.gov.uk The lead Home Office lawyer dealing with TOEIC cases is Liam Doyle whose contact information is: Team B1 Home Office Immigration Litigation One Kemble Street London WC2B 4TS Telephone: Liam.Doyle@governmentlegal.gov.uk