The Illegal Migration Act 2023, once commenced, will provide for accelerated claims and appeal timescales for individuals subject to the “duty to remove” provisions of the Act when making suspensive claims relating to the narrow grounds of serious harm and removals conditions. The Act provides that these appeals are to be heard in the upper tribunal—Immigration and Asylum Chamber—rather than the first-tier tribunal.
The Act sets out that, once issued with a third-country removal notice, individuals will have eight days to make a claim to the Secretary of State for the Home Department. Having received a claim, the Secretary of State will have four days to consider the claim and decide whether it should succeed, and if not, whether to certify it as clearly unfounded.
Where a claim is certified as unfounded, there is no automatic right of appeal. The individual can be removed unless they apply to the Upper Tribunal for permission to appeal within seven working days from being given notice of the certification. These applications will normally be dealt with on the papers, noting that this is a judicial decision. The upper tribunal must decide whether to allow the appeal to proceed and notify the parties within seven working days from when the application is made—there is no right of appeal against the tribunal’s decision. The upper tribunal may not extend either of these timeframes, unless it is satisfied that it is the only way to secure that justice is done in a particular case.
Where the Secretary of State for the Home Department rejects the initial claim but does not certify it as clearly unfounded, or where the upper tribunal gives permission to appeal, the individual has seven working days from when they are notified of the Secretary of State’s decision, or from when they are given permission to appeal, to give notice of appeal to the upper tribunal. The upper tribunal must make their decision and give notice of that decision to the parties within 23 working days from the day the appeal was lodged. Again, the upper tribunal may extend either of these timeframes only if it is satisfied that it is the only way to secure that justice is done in a particular case.
The Ministry of Justice has been working to increase capacity in the justice system in preparation for the commencement of the Act. Additional hearing rooms have been prepared, making a total of 25 hearing rooms available within the existing Immigration and Asylum Chamber estate in London. These rooms are set up with remote hearing technology, allowing for either in-person or remote hearings in order to maximise flexibility. Over 100 additional staff have been recruited to support the upper tribunal’s work and are currently undertaking training ready for the commencement of the Act.
The Illegal Migration Act provides for first-tier tribunal judges to be deployed to sit in the upper tribunal to hear Illegal Migration Act appeals. The judiciary has identified relevant judges, which could provide over 5,000 additional sitting days. The decision on whether to deploy additional judges temporarily to the upper tribunal, including when they sit and the courtrooms they use, is for the independent judiciary and will be taken by the relevant leadership judges at the time and in the interests of justice. In addition, I have asked the Judicial Appointments Commission to recruit more judges to the first-tier tribunal and the upper tribunal. The recruitment will conclude in the next few months and new judges will be appointed, trained and start sitting from this summer.
We are confident that, with the additional courtroom and judicial capacity detailed above, in line with projected levels agreed with the Home Office, the vast majority of Illegal Migration Act appeal work will be dealt with by the courts in an expedited manner.
[HCWS188]