No more settlement visa appeals

[Tony M]

The new Immigration Act 2014 has been passed ( on 14th May 2014). This means that there will no longer be any right of appeal against a settlement visa refusal.

The Act will not be retrospective, but any new applications may be subject to the change in appeal rights. I have not seen any "start date" but it could be immediate, now that the Act is law. This is how it works, after the Act is "passed" :

The legislation within the bill may come into effect immediately, after a set period or only after a commencement order by a government minister.

A commencement order is designed to bring into force the whole or part of an Act of Parliament at a date later than the date of the royal assent.

If there is no commencement order, the Act will come into force from midnight at the start of the day of the royal assent.

The practical implementation of an Act is the responsibility of the appropriate government department, not Parliament.

In my view this will mean that there will likely be more settlement visa refusals, especially those that might previously have been issued in "50/50" cases. ECO's will no longer have to worry that their decisions might be overturned at appeal.

For instance,

it will seemingly be easy for an ECO to refuse a child settlement application on "sole responsibility" grounds, whether the sponsor has sole responsibility or not, and there will be no appeal against the ECO's decision.

If the ECO refuses a spouse settlement application on the grounds that he is not satisfied that the marriage is genuine, then the applicant and sponsor have no right of appeal against the ECO's "opinion".

The only avenue of "appeal" will be by legal challenge, that is Judicial review, and that can be an expensive exercise.

Edited May 16, 2014 by Tony M

[theoldgit]

If I understand this correctly Tony, an ECO might have been challenged by their manager during their annual report interview if too many of their decisions were challenged via the appeal route, and overturned.

Now the appeal route has been withdrawn by statute there is little or no incentive to get decisions right, as you say if there is an element of doubt they will in all probability just refuse.

I really don't see that this decision is going to increase security of the UK Border, and with the application fee set so high there are going to be many disgruntled "customers".

[Tony M]

If I understand this correctly Tony, an ECO might have been challenged by their manager during their annual report interview if too many of their decisions were challenged via the appeal route, and overturned.

Now the appeal route has been withdrawn by statute there is little or no incentive to get decisions right, as you say if there is an element of doubt they will in all probability just refuse.

I really don't see that this decision is going to increase security of the UK Border, and with the application fee set so high there are going to be many disgruntled "customers".

Agreed. This has already happened, when the right of appeal was removed in Family Visit visa applications. ECO's now refuse family visit visa applications that they would probably have issued when their decision could be challenged at appeal.

I have to say that I think this is a step backwards by the government, and not, by any means, the kind of progress that they would like us to believe it is. It is the result of ( just as it was with family visit visa appeals) UKVI losing too many appeals because of poor decision- making by ECOs. Taking away the right of appeal from a wife or child who wishes to join family in the UK makes the ECO omnipotent. There are no longer any real checks and balances, as most people will not be able to afford the time or cost of a Judicial Review hearing in the courts.

It's possible that an "Administrative Review" process will be introduced, which means that the decision can be reviewed by the ECM, but that will be fee-paying, of course, and if the ECM says no, then the "review" process ends there.

Edited May 16, 2014 by Tony M

[Seekingasylum]

JR is a route but given the withdrawal of other appeal rights elsewhere the process has become overwhelmed and is not as speedy as it once was. However, the pre-action protocol letter is still a sound basis to begin with and signals an intent that cannot be as easily dismissed as their administrative reviews. I would advise any applicant to pursue this avenue following refusal.

There is another route which could be to appeal on the grounds of a breach of human rights. Folk could do well to monitor Colin Yeo's website Free Movement for his take on this.

Essentially, this is a retrograde step and will only foster more attempts to gain clandestine settlement through bogus visit applications. I suppose May is desperate to fulfil Cameron's pledge to reduce migration and, whereas EU settlement might defeat them, hitting British sponsors of migrant spouses etc is still a means of achieving that end for their short term political gain.

I despise them for it but the acquiescence of all the other political parties shows just how embedded discrimination is in the fabric of British life.

[bobrussell]

Teresa May seems determined to keep the judges away from immigration decisions at all costs! I accept that dubious appeals are clogging up the system but there must be a fair process for reviewing decisions.

If the reviews are done by the same people that make the mistakes nothing much is going to improve. Some form of proper review is required especially considering the cost for re-applying. Without this 'feedback' the ECO's will not feel much pressure to get things right in the first place.

The present system is a nonsense IMO. Students are visitors not settling. They should have 'enhanced' visitor rights but should never start a course with the intention of staying in the UK long-term. Clearly circumstances may change , they may marry an EU citizen so acquire rights to remain through other legitimate routes but why on earth do they appear on the books as immigrants? Students should drop off the politically sensitive figures and reappear as a bonus, money spinning group that are good for the economy!

We should be able to get rid of those that have abused their status. Send them home to appeal there - fine! This will reduce the number of appeals significantly IMO.

[Donutz]

What a silly law. It doesn't make sense that one cannot appeal a visa (temporary stay) or settlement visa etc. Staff do make mistakes, they may be too strict (policy of declining as much as they can get away with) etc. so atleast one second opinion by another department would make perfect sense. Just as a Dutchy I could appeal refusal for a Schengen visa or immigration application for free. If declined once more you'd have to go to court and the costs that come with it.

If they want to improve the system (less money wasted on appeals bound to fail) they should change the system so it's easier for bonafite applicants to get a positive outcome. For instance contacting the applicant: "please supply more evidence of ... or I will have to decline this application". Sure the system should be efficient, no clogging, no loads of money spent (wasted) on it, but do so by less bureaucracy and way of lessening the hassle for genuine applicants.

@Bob: AFAIK all EU countries see foreign students as temporary immigrants who stay for up to a few years. Most treed all other immigrants in the same way (isseuing temporary ressidence at first, stricter rules for permanent ressidency).

[7by7]

Unfortunately, Donutz, this current government is pandering to the anti immigration lobby within the UK.

Most immigrants to the UK come from within the EEA; and the government know that they cannot do anything about them.

So, over the last few years, they have been making it harder for those they can do something about; non EEA nationals; family members in particular.

They can then say to the right wing press that they are doing something about immigration!

Do you know the main reason they have given for abolishing appeals; first for family visitors, now for settlement?

That too many appeals were being granted!

Yes, really, I'm not joking.

So, a combination of pandering to the press by the government and the Home Office's embarrassment at their officers making so many wrong decisions means that in future more families will be forced apart.

[Jay Sata]

A lot of those appeals were being granted by default when the immigration service solicitor failed to turn up or the paperwork had not been processed due to the system being overloaded. A huge publicly funded immigration legal industry has emerged over the last decade all funded from the public purse.

According to the link below around 70'000 appeals were being heard under the old system.

Recent changes and the new immigration act are designed to address that problem.

"https://www.gov.uk/government/publications/immigration-bill-part-2-appeals"

You refer to the right wing press but even the labour leader agreed yesterday they had got it wrong on immigration.

http://www.theguardian.com/politics/2014/may/16/prejudice-immigration-ed-miliband-labour

Edited May 17, 2014 by Jay Sata

[GarryUK]

I'm sad for the people that genuinely should be given a visa, particularly if the refusal is because they failed to include something and weren't given the opportunity as suggested above to submit the additional documents or face refusal. I think UKVI (or whoever it falls to) should be given the resources to better police our borders, and the power to detain and kick out more quickly people that really shouldn't be here (those deemed to be illegal immigrants that have over stayed). All this crap about if you can't prove where they're from just call them naughty and send them on the way, lock the blee-ders up until they decide they'll leave. Human rights my ar-se, if you were here legally you wouldn'd be detained. I have to say though that I won't be voting for one of the mickey mouse political parties that talk out their ars-es just as much as the bigger parties as such a protest vote really won't achieve anything, we'll have to find another way to sort things out.

[7by7]

A lot of those appeals were being granted by default when the immigration service solicitor failed to turn up or the paperwork had not been processed due to the system being overloaded.

Granted by default because the Home Office know they wont win and so offer no evidence is closer to the truth. They don't care if the system is overloaded nor do they care how long appellants have to wait for their case to be heard.

A huge publicly funded immigration legal industry has emerged over the last decade all funded from the public purse.

You have said before that you believe only the rich should have access to justice; I disagree.

If ECOs didn't make so many errors and make unjustified refusals, there would not be so many appeals.

Tthe solution to your perceived problem would be for unsuccessful appellants to pay the costs of the appeal. Indeed, the government were heading down that road by charging all family visitor and settlement appellants fee for their appeal.

Likewise, if the appeal were successful then the Home Office should pay the costs. That may concentrate the minds of their employees a bit; but as said employee would not be personally affected, I doubt it.

According to the link below around 70'000 appeals were being heard under the old system.

Recent changes and the new immigration act are designed to address that problem.

"https://www.gov.uk/government/publications/immigration-bill-part-2-appeals"

The large number of appeals, and the large percentage of those appeals which are granted, are a sure indication that the ECOs are making wrong decisions.

That is the problem.

We have seen many examples on this forum of refusals which make no sense, refusals where the ECO has at best overlooked, at worst ignored vital evidence.; and that is just a minute sample of all refusals worldwide.

If ECOs had got the decision right in the first place there would not have been so many appeals.

You are happy that those affected by these wrong decisions will in future have no redress, no access to justice. I am not.

The solution is not to abolish appeals and so punish the innocent; but to provide better training and supervision of ECOs to eliminate these wrong decisions as much as possible.

You refer to the right wing press but even the labour leader agreed yesterday they had got it wrong on immigration.

http://www.theguardian.com/politics/2014/may/16/prejudice-immigration-ed-miliband-labour

The words 'bandwagon' and 'jumping' spring immediately to mind!

[Donutz]

Yep, it is the same here. Especially with the previous administration (supported by Wilders rightwing Freedom Party, which name is rather ironic if you ask me). They cannot do much about EU migration, and the IND (Immigration & Naturalisation Department) lost a few cases with the EU court such as the 120% minimum wage requirement, or that 3-6 months was not enough for the EU/SS route even if you actually lived and worked elsewhere in the EU etc.

Because the previous administration had fallen luckily the restriction of non EU immigrant family settlement only being open to married (or registrated partnerships, basically the same as marriage) couples was dropped. Closing settlement for unmarried partners was/is the only restriction left open to be "though on immigration". Ofcourse the EU blamed for this even though the very same parties complaining are the ones that signed the agreements/treaties about a decade ago.

For settlement in NL it's quite usual to be asked to supply additional or new documents incase something was missing or not up to the standards. For example missing a salary payement slip, having forgotten to answer a question or not enough evidence of being in a durable and genuine relationship. Mistakes are made though (miscalculation by the IND if their is sufficient income) so having a chance to appeal is pretty important. Even more so if it concerns something that is less straight forward such as "is your relationship genuine and durable". One officer may say yay the other may say nay...

As for visitor visas: same, those requirements and reasons for refusal are even more opaque. "Risk of failing to return", "purpose/intentions for stay not clear enough" etc. Much easier to deny visas on such vague grounds. You cannot call it a mistake or error on their side (I'd call it "discouragement policies") and such cases to purposely not be covered by these new UK laws. I don't know what the statistics are, only that "some appeal" and that "sometimes a decision is overturned". I'd like to find statistics on the number of appeals (compared to the number of applications and refusals) and how often they are overturned. Differs from embassy to embassy though. Some embassies grant nearly every visa, others decline loads of visa. Partially explained due to the general social-economic situation in a country but also on how a particular embassy or officer looks at cases. Some seem to try and decline as much as they can get away with.. A free appeal for a second opinion by an other department makes perfect sense! No statistics here either when it comes to appeals. I have read that as much as 50 (private appeal) to 80% (appeal via a lawyer) is overturned in appeal. Don't know if thats correct. Also depends on who appeals in the first case: those who know they have gotten a load of BLEEP from the deciding officer vs how many let themselves be intimidated, know that the visa was declined on proper grounds or are unaware of appeal options.

Edited May 17, 2014 by Donutz

[Seekingasylum]

Some here seem to have no conception of the system as it was. The UKVI did not lose cases because they failed to turn up. They chose as a matter of policy to leave the determination to the Judge by way of their papers lodged at the AIT. The system, for historical reasons, permitted the UKVI several months in which to prepare their case which in fact simply resolved to submitting the refusal statement, added Q/A if applicable and a short statement referring to submitted enclosures within the application. The appeal hearing was essentially the opportunity for the applicant to argue their case as to why the decision was flawed, either on the grounds of fact and or the law.

That there were so many successful appeals, on average some 50%, was a testament to the visa section's inability to arrive at the right decision from the outset. Poor understanding of case law, the inappropriate interpretation of the Rules and the wrong application of the test founded upon the balance of probability all contributed to this failure rate. Now, it seems, no more.

No matter how they wish to spin the reasons for this travesty of an Act, the fact remains, hundreds of applications that are merited will be refused administratively and no one will be able to challenge the UKVI before a higher authority except through the Divisional Court at no mean expense.

Families will be split but I suppose human rights means nothing to those who only see the concept as a means by which nasty illegal entrants etc get to steal all those jobs and benefits meant for the hard pressed working classes who of course are all left starving in the streets. This coalition government is really quite ghastly but then they are after the UKIP vote.

Der solution to all our problems is to get rid of Der Juden........nothing new under the sun, eh?