Revista Temas de Derecho Constitucional

246 Revista Temas de Derecho Constitucional are decisive for the granting of asylum the claim will be refused. This is because when it comes to the proof of the facts underlying the claim, the claimant’s credibility and reliability are of the essence. If on the other hand the claim fails simply because it does not fit the parameters of a Convention reason, the authorities must then consider whether to grant the claimant humanitarianprotectioninsteadofrefugeestatus.This,onlyincasethereisa ‘reasonable degree of likelihood’ that the claimant would face a ‘real risk’ of serious harm on return to their country of origin. Humanitarian protection is usually conceded on three grounds: a real risk to life under Article 2 of the ECHR; a real risk of cruel, inhuman or degrading treatment under Article 3, or that the claimant’s removal would breach their right to family and private life. The burden and the standard of proof remain the same and it is for the claimant to prove that the seriousness of such risk is real. This is not as simple however: to gain protection under Art 2, a claimant needs to prove that on return the risk of death is ‘virtually certain’. If claiming risk of inhuman, cruel and degrading treatment, a claimant needs to demonstrate that there are ‘substantial grounds for believing that there is a real risk’ they would face treatment country to Art 3 on return. A breach of Art 8 is argued if removal would breach family and private life, though in response to that the Secretary of State usually offers to return the family together. In the event that themany hurdles are negotiated successfully, the claimwill be granted, and the claimant issued with a residence permit. This permit has temporary validity, however, usually up to 5 years, though this period is renewable. If the claim is refused, a decision must be provided in writing explaining the reasons for the refusal with details as to how to challenge it. We turn to the appeal process now. THE APPEAL PROCESS a. The First-tier Tribunal Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014) entitles a claimant to appeal against a decision refusing them asylum. Appeals are heard by specialised tribunals. These are administrative public bodies discharging a judicial function. The process starts with the claimant lodging an appeal with the Asylum and Immigration First-tier Tribunal (‘FtT’). An appeal before the FtT is ruled by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘The 2014 Rules’). According to the 2014 Rules a claimant has only 14 days after the Secretary of State’s decision is sent to them to lodge an appeal, giving reasons for disagreeing with the Secretary of State’s decision. The two broad grounds for appeal are that the removal of the claimant from the UK following a refusal or revocation of the claimant’s status by the Secretary of State would breach the Refugee Convention or would be unlawful under the Human Rights Act 1998, under Section 84(1) of the 2002 Act. Under the 2014 Rules, in order to decide the appeal the FtTmust hold a hearing. Tribunal and court proceedings follow the principles of the adversarial system. In adversarial systems judges do not decide which evidence is required, which witnesses to call, or how to progress a case. These are all matters for the parties. It is for them to substantiate their own position whilst undermining the opponent’s case. The judge is an arbiter, an