Changes to appeal rights in UK visa applications

[Tony M]

The latest round of changes to UK visa appeal rights came into effect this week. I have to admit to being confused, along with more learned people, as to whether there is still a right of appeal in UK Family Migration visa refusals. I understood that these appeal tights were to end ( except for the "human rights" aspect), and were to be replaced with a Administrative Review system. Well, I and others have read the changes released today, and still don't know.

I admit to not understanding the latest changes, but I am not alone. Freemovement say this :

"Additionally, new types of decision made overseas will be subject to administrative review. The wording is confusing (well, it confused me) but basically it extends the formal Immigration Rules administrative review process to all applications for entry clearance except short term students, visitors, partners or children of members of the Armed Forces and some Appendix Armed Forces decisions, family members under Part 8 or Appendix FM, asylum decisions under Part 11 and some others. All these types of application should pursue a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (albeit on human rights or refugee grounds only)."

But McGill & Co, Solicitors say this :

"However an examination of the Explanatory note to the recent Statement of Changes is confusing (maybe just to me). In the section dealing with Administrative Review, those decisions eligible for administrative review appear to exclude applications under Part 8 of the immigration rules and Appendix FM (amongst others). These are really family applications, along with anything under 276ade, which relate to long residence.

The Statement of Changes specifically says that these decisions must pursue “an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.”

This is confusing- since the commencement orders do not appear to say that these decisions will still be eligible for appeal, and logically appear to remove rights of appeal for all applications made after 6 April 2015 under the Immigration Rules."

and then go on further explain :

"This is all very confusing indeed, and perhaps I am missing something fundamental, but unpacking it all, applications under the Immigration Rules under these rules listed below will still have appeals to the Tribunal and the authority for this appears to be the explanatory note to the Statement of Changes:

.........................(v) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules, or under paragraph 284, 287, 295D or 295G where the sponsor was granted settlement as a Points Based System Migrant) or has refugee or humanitarian protection status in the UK;

.............(viii) Appendix FM (family members), but not where an application is made under section BPILR (bereavement) or section DVILR (domestic violence),"

So, is there still a right of appeal in (some) settlement visa application cases ?

If not, is there an right to an Administrative Review in those cases ?

I have attached a couple of the GOV UK documents released today :

Appealsguidance-wordgovuk_revisededition_LS.pdf

Rights_of_appeal_guidance_v2.0_EXT.pdf

Edited April 11, 2015 by Tony M

[tonyk]

Yes TonyM applications for settlement as family members still carry the full right of appeal via Immigration Judges in the First & Upper Tier Tribunals (IAC)

[Tony M]

tonyk - many thanks.

But how does that gel with the governments statements that the right of appeal is being removed from all but human rights and asylum applications ?

[tonyk]

Because all family settlement visas have an automatic Human Rights element.

[Tony M]

Because all family settlement visas have an automatic Human Rights element.

So, they continue to have a full right of appeal as now ? Or do they only have a right of appeal on "human rights " grounds ? Forgive me for being dense, but others are having problems with this too.

Is there guidance on this ( apart from the ones I published above ) that actually clarifies the current appeal rights ?

[Tony M]

tonyk - I can't find anything, anywhere, that confirms that a full right of appeal remains in place after 6th April 2015. What I do find are articles like this :

ADMINISTRATIVE REVIEW. The main effect of Section 15 of the Immigration Act 2014 was to remove the right of appeal for all immigration refusal decisions and to replace it with a system of administrative review. The Government agreed to a phased roll out of administrative review and these new Rules confirm that this roll out will be completed on 6 April 2015. From this date, administrative review will be the only process available to correct case working errors in certain decisions where there is no right of appeal. This effectively means that, after 5 April 2015, it will no longer be possible to pursue a formal appeal through the court system if an application is refused. It is important to note that it is not possible to appeal or request an administrative review of a decision to refuse a visitor or short term student application. Those who have had applications refused under these routes should, instead, submit fresh applications which address the reasons for refusal.

The GOVUK website says this :

1. Overview

You might be able to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) if the Home Office has:

• refused your protection claim (also known as ‘asylum claim’ or ‘humanitarian protection’)
• refused your human rights claim
• made a decision under the European Economic Area (EEA) Regulations, eg the Home Office has decided to deport you or refused to issue you a residence card
• decided to revoke your protection status
• decided to take away your British citizenship

You might also be able to appeal to the First-tier Tribunal (Immigration and Asylum Chamber) about a Home Office decision on an application submitted before 6 April 2015.

The tribunal is independent of government. A judge will listen to both sides of the argument before making a decision.

You might be able to ask the Home Office for an administrative review if you don’t have the right to appeal.

Was the full right of appeal in Family Migration refusals removed on 5th April 2015 ? If not, where is it so stated ?

Was the Administrative Review procedure introduced on 6th April for settlement visa refusals ? If not, why not, as the legislation indicated that it would be introduced ?

Edited April 13, 2015 by Tony M

[tonyk]

See this link TonyM https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/396591/Appealsguidance-wordgovuk_revisededition_LS.pdf

[Tony M]

Okay, thanks. I see this :

2.5 In addition to claims citing human rights, the following applications under the Immigration Rules will be considered to implicitly raise human rights and be treated as a human rights claim:

(i) Applications under the family rules in Appendix FM of the Immigration Rules; and

(ii) Applications under the long residence Immigration Rules (paragraph 276ADE of the Immigration Rules).

That was well hidden away ! Cheers, tonyk

Edited April 14, 2015 by Tony M

[Seekingasylum]

The thing is, as I understand it, when it comes to an appeal as a human rights issue, the judge will first look at the facts of the settlement application and if he determines that the refusal was flawed within the Rules governing the application then he can uphold the appeal without even considering any human rights grounds.

The problem arises if he finds the decision to refuse was supported by the evidence but then proceeds to examine the right to family life issue he will consider the Home Office's inevitable assertions that such a right could be exercised reasonably in the applicant's home country without undue prejudice to the sponsoring spouse etc. Essentially, these appeals will resolve to the sponsor demonstrating why they cannot maintain a residence in the applicant's country.

What a situation eh?

[Tony M]

The thing is, as I understand it, when it comes to an appeal as a human rights issue, the judge will first look at the facts of the settlement application and if he determines that the refusal was flawed within the Rules governing the application then he can uphold the appeal without even considering any human rights grounds.

The problem arises if he finds the decision to refuse was supported by the evidence but then proceeds to examine the right to family life issue he will consider the Home Office's inevitable assertions that such a right could be exercised reasonably in the applicant's home country without undue prejudice to the sponsoring spouse etc. Essentially, these appeals will resolve to the sponsor demonstrating why they cannot maintain a residence in the applicant's country.

What a situation eh?

Can I ask where you understand that from ? I think the whole matter of the appeal reforms have been poorly presented by the Home Office. With the new appeal procedures in place now, we shouldn't have to be asking how they operate, surely ?

I do think that all settlement applications must now include an argument concerning interference with the applicant's Article 8 rights (basically, the right to family life). If that is not included then the ECO will, more likely than not, just include a stock phrase saying that the applicant's human rights have been considered. It will be necessary, I think, to make the ECO argue, in his reasons for refusal, why his decision doesn't interfere with the applicant's Article 8 rights.

[7by7]

If you three experts can't agree on what this means; what chance the rest of us!

[tonyk]

7by7 I do not think we do not agree.

The appeal system is changed.

Parliament tells us that Appendix FM is fully Human Rights compatible. Therefore if the ECO has made a mistake in his assessment then it inherently becomes a potential Human Rights violation whether this be strictly an Article 3,6 or 8 violation under the Human Rights Act or not. Therefore an Immigration Judge can allow an appeal without actually having to give a decision on Human Rights grounds as they are generally understood.

7by7 I totally agree that this is ultra confusing for the layman and anybody looking at the plethora of options for appeal forms on the Immigrations Appeal Tribunal website is to be forgiven for holding their hands up in despair!!

[Seekingasylum]

Sorry,Tony M, I'm sort of trying to cut through the chaff in a shorthand way assuming some here know the practical outcomes.

Essentially, the HR issue for settlement cases is nicely focused from the HO's view when looking at the application forms for those who wish to remain in the UK having entered or stayed illegally but have subsequently established a family life with someone settled in the UK and wish to apply for LTR on that basis or on the basis of parenthood or having established a private life.

When looking at the form we see that many questions are posed with a view to ascertaining why it is the applicant cannot return to their own country accompanied by the person with whom they wish to remain. The whole thrust is to examine the circumstances which will justify a decision based on the proposition that any decision to refuse constitutes a proportionate interference to the right to a family life etc. Quite a few judgements are out there but as ever each case will be judged on its merits.

Frankly, I don't profess to understand the ambiguity of this new regime any more than you or others.

But, in practice what will be the effect? Because settlement cases will be considered as de facto HR claims all refusals based upon alleged failure to meet the requirements of the Rules will also probably contain a stock paragraph that the officer has considered the application under the HR legislation and concluded that his decison does not constitute a disproportionate interference in the right to family life etc. it may be that the application form will be amended to include questions as to why the sponsor cannot join the applicant in their own country,,what the sponsor will do in the event of a failed application and what effect an adverse application will be upon the applicant. Still, there will be a right of appeal which as I have said previously will revolve around the issue of proportionately. Additionally, as a matter of common sense it can be assumed that any other grounds for refusal will also be examined and if the ECO has erred then....

I can see a sort of refusal impact statement developing here as part of the application process but looking at the system so far most settlement applications meeting the rules tend to be issued, particularly those where there are children from the sponsor.

[Tony M]

Sorry,Tony M, I'm sort of trying to cut through the chaff in a shorthand way assuming some here know the practical outcomes.

Essentially, the HR issue for settlement cases is nicely focused from the HO's view when looking at the application forms for those who wish to remain in the UK having entered or stayed illegally but have subsequently established a family life with someone settled in the UK and wish to apply for LTR on that basis or on the basis of parenthood or having established a private life.

When looking at the form we see that many questions are posed with a view to ascertaining why it is the applicant cannot return to their own country accompanied by the person with whom they wish to remain. The whole thrust is to examine the circumstances which will justify a decision based on the proposition that any decision to refuse constitutes a proportionate interference to the right to a family life etc. Quite a few judgements are out there but as ever each case will be judged on its merits.

Frankly, I don't profess to understand the ambiguity of this new regime any more than you or others.

But, in practice what will be the effect? Because settlement cases will be considered as de facto HR claims all refusals based upon alleged failure to meet the requirements of the Rules will also probably contain a stock paragraph that the officer has considered the application under the HR legislation and concluded that his decison does not constitute a disproportionate interference in the right to family life etc. it may be that the application form will be amended to include questions as to why the sponsor cannot join the applicant in their own country,,what the sponsor will do in the event of a failed application and what effect an adverse application will be upon the applicant. Still, there will be a right of appeal which as I have said previously will revolve around the issue of proportionately. Additionally, as a matter of common sense it can be assumed that any other grounds for refusal will also be examined and if the ECO has erred then....

I can see a sort of refusal impact statement developing here as part of the application process but looking at the system so far most settlement applications meeting the rules tend to be issued, particularly those where there are children from the sponsor.

From what I hear, it s now much the opposite with children applying to join a parent in the UK. The majority of applications seem to be refused, with UKVI (Bangkok, that is ) happy to allow the matter to go to appeal.

I'm not sure that the Home Office will add the kind of questions you suggest to the application form, as that might put them in the position of having to issue the visa if, for instance, the sponsor declares that he cannot join and support a family in the applicant's home country as the authorities there will not issue a work permit for his kind of work, and the applicant cannot earn enough in his/her country to support the family and the sponsor there. In theory the ECO could be obliged to issue the visa as such a situation could be a disproportionate interference in the applicant's family life, as it could constitute permanent separation if the application is refused.

It will be interesting to see some of the future threads here when the refusals start being promulgated. I wonder what kind of training ECO's are getting on this ?

Edited April 18, 2015 by Tony M

[Seekingasylum]

Sole responsibility cases have been so narrowly interpreted that it has become apparent the Home Office as a matter of policy have been using the Appeal tribunal as a form of " final" case worker for some years now. My reference to settlement cases was more aimed at the mainstream applicant.

Settlement cases are refused in the main through a failure to meet the requirements of Appendix FM which as we know has been found by the Courts to be compliant with HR legislation. In those circumstances most, if not all, appeal judges would find for the Home Office in determining their decison to refuse constituted a proportionate interference in the right to family life so as to preserve public interest etc. The point is, the Home Office will wish to be seen to be addressing the issue of family life and a few extra questions in the application form won't necessarily be opening Pandora's box. Certainly, those cases involving ' snap ' marriages based upon brief courtships will find it an uphill task to demonstrate a family life has even been established.

The point is, as I understand it, the appeal is to be lodged on the hook of HR but in practice the judge will still be able to look at the application in toto and if the ECO erred in fact or law then the matter can be addressed.

Still, we are talking about the Home Office here so who knows what they will do.

[Tony M]

Sole responsibility cases have been so narrowly interpreted that it has become apparent the Home Office as a matter of policy have been using the Appeal tribunal as a form of " final" case worker for some years now. My reference to settlement cases was more aimed at the mainstream applicant.

Settlement cases are refused in the main through a failure to meet the requirements of Appendix FM which as we know has been found by the Courts to be compliant with HR legislation. In those circumstances most, if not all, appeal judges would find for the Home Office in determining their decison to refuse constituted a proportionate interference in the right to family life so as to preserve public interest etc. The point is, the Home Office will wish to be seen to be addressing the issue of family life and a few extra questions in the application form won't necessarily be opening Pandora's box. Certainly, those cases involving ' snap ' marriages based upon brief courtships will find it an uphill task to demonstrate a family life has even been established.

The point is, as I understand it, the appeal is to be lodged on the hook of HR but in practice the judge will still be able to look at the application in toto and if the ECO erred in fact or law then the matter can be addressed.

Still, we are talking about the Home Office here so who knows what they will do.

That sums it up nicely, I think. I guess we have to wait to see how tough the Home Office intend to be. Personally, I think they will be as tough as they possibly can.