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Fairness in “conducive to the public good” exclusion decisions

Wednesday 5 August 2020

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Exclusion decisions prohibit entry to the UK and are made under a non-statutory power exercised personally by the Home Secretary. They tend to be used against foreign national (non-EU) prisoners who have taken up the offer of assistance to leave the UK under the facilitated returns scheme. They are made on the basis that preventing the person’s return here is conducive to the public good.

Decisions with such far-reaching consequences need to be administered fairly. The Guidance explains that “where possible” the decision’s subject should be notified of their exclusion via written reasons. Otherwise the notice will be served to file.

Experience suggests that the first many migrants hear of these decisions is in the context of the refusal of an entry clearance application to rejoin their family in the UK. Even then it can be rather difficult to get hold of the decision itself. This raises a question as to effectiveness of the safeguard set out in the Guidance that “If the person is subsequently located they must be given a copy of the notice as soon as it is practical to do so.”

Having an exclusion decision hanging over one can present a serious problem for resolving an application to join one’s family in the UK. For example, many entry clearance cases can be improved by the provision of further evidence on a repeat application, but an extant exclusion decision will make re-application with improved evidence pointless.

So what to do? Of course one can bring an appeal on human rights grounds, though that can be a very lengthy process. However the SSHD's guidance suggests that an exclusion decision is non-appealable. This creates a concern that even a successful appeal will not persuade an entry clearance post to grant a visa. There is support for the question of exclusion being relevant to the proportionality balancing exercise in a family life appeal: see Campbell [2013] UKUT 147 (IAC). But the UT there ultimately held it against the Appellant that no earlier challenge had been made against the exclusion decision.

All this leaves it unclear as to whether judicial review or an appeal is the appropriate remedy for contesting an exclusion decision, particularly where the actual decision remains undisclosed. And there are other difficulties with appeals, which face very long waits for hearing, foreseeably worsened by the pandemic. As held in recent decisions such as BH Iraq [2020] UKUT 189 (IAC), the disclosure duties on the SSHD are less onerous in appeals than in public law proceedings. 

On 5 August 2020 Judge Keith in the Immigration and Asylum Chamber of the Upper Tribunal granted permission for judicial review in JR/1339/2020. This was because, where the exclusion decision remained undisclosed at the date the claim reached the Tribunal, the appeal was arguably not an effective alternative remedy, having regard to the points made above.

I am instructed by Paul Turner of Barnes Harrild Dyer in this matter. Watch this space!

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