Visa Applications

[atlastaname]

I am not going to get into yet another arguement over this , but i will answer your last question. The point is that sometimes a visa is refused when it could have been approved if only the ECO had said that they require more proof of a certain point rather than just refusing , and you recently agreed with a poster (divorced and in a new relationship....remember?)who was refused and asked why they couldn't just have given him more time to produce what was required.

E.G. If they say there isn't enough evidence of a relationship, then why not say what is lacking and give the applicant say a week to produce it? Although i do think that some applicants don't take the application seriously enough and they should use their common sense as to what is required in the first place.

[the gent]

On the matter of appeals, the appellant submits a case which asserts that the respondent was wrong in arriving at a given decision generally on grounds that he was wrong in law, or in fact, or had placed undue weight on evidence, or the lack of it, which seemingly justified the decision when on the balance of probability it did not. Appeals do not offer the appellant the opportunity to produce new evidence in support of a deficient application but more often than not the adjudicator's attention is drawn to the fact that evidence that would have been available at the time of the application and which would have supported the applicant was not sought by the respondent prior to the decision. The point is, just how long is the visa officer's piece of string? In seeking to satisfy their somewhat subjective test of ' satisfying the visa officer ' the applicant can often find himself in an invidious position of not knowing just how much he will need to produce in order to achieve that.

Visa officer's are not infallible and often make make mistakes even though they themselves may be ignorant of their deficiency at the time of making them. Crudely speaking, some of them , and their managers, can be more stupid or more obdurate than others. Ultimately, appellate procedure decides but decisions in favour of the appellant are usually based on the fallibility of the visa officer rather than a failure on the part of the applicant.

GU 22 please take note.

[GU22]

The point is that sometimes a visa is refused when it could have been approved if only the ECO had said that they require more proof of a certain point rather than just refusing , and you recently agreed with a poster (divorced and in a new relationship....remember?)who was refused and asked why they couldn't just have given him more time to produce what was required.

No, that is not what I said. I did say that I disagreed with the principal of refusals without an interview, and that if the ECO has doubts or questions then the applicant should be given the opportunity to answer those doubts and questions at an interview.

As shown by my calculations earlier, the ECO has very little time in which to make a decision on whether to approve, refuse or call in for interview. It is up to the applicant to provide all the relevant information to help the ECO in making this decision.

The immigration rules clearly state that the burden of proof lies with the applicant. You may not consider this is fair, but it is the way it is.

The Gent,you say

Appeals do not offer the appellant the opportunity to produce new evidence in support of a deficient application

Wrong. Not only does the AIT allow new evidence, not producing it means that the appeal will probably be dismissed. I refer you to the AIT website in general, and Neutral Citation Number (NCN) [2006] UKAIT 00064, RS and FD (Appeals without grounds) in particular. From that determination

Decisions

11. The first appellant has submitted no grounds of appeal. Rule 15(2)© applies, and in all the circumstances of the case, including those we set out below, we consider that this appeal is appropriate for determination without a hearing, and we so determine it.

12 The burden of proof is on the appellant. She has submitted no grounds of appeal, and no additional documents. There is nothing in the material before us that gives any reason to suppose that the respondent’s decision was not made in accordance with the Immigration Rules. Her appeal is dismissed.

If you search further through determinations, you will find that in nearly all successful appeals new evidence was introduced by the appellant; evidence the original ECO was not privy to.

Of course ECOs are only human and so as fallible as the next person. They do make mistakes. However, there are so many checks and balances in place that if the ECO does make an unjustified refusal the decision will be usually be reversed by the ECM or UKVisas long before the case reaches the AIT.

Think on this; if ECOs were infallible there would be no need for the review system, no need for the independent monitor, no need for the users panel and no need for the AIT. Unfortunately, they are not, but neither are applicants and sponsors. Yes, ECOs make errors, but so do applicants and sponsors. Far more 'unjust' refusals are the fault of the applicant or sponsor than are the fault of the ECO.

[atlastaname]

Yes Gent you are definately wrong about submitting new evidence, perhaps your brain was having an off moment as you are usually spot on with your critisisms of the system.

Often refusals are overturned on evidence that could easily have been made available to the ECO had he or she asked for it instead of just refusing. The onus IS on the applicant but often because the EXACT rules and requirements are so vague on the official websites (e.g. what constitutes proof of a genuine intention?) , less experienced and first time applicants often produce less evidence than us more experienced ones do. And although they may have the crucial bit of documentation back in their hotel room , they are not given the opportunity to provide it .

Both ECO's and applicants make errors, the difference is an ECO error does not impact on the ECO at all (unless they make a habit of it ) , but can totally destroy the applicant . That perhaps is an unfairness in the system that can never be solved unless precise and exact rules were introduced, and even then a few applicants would fail because they could never meet them . There is no perfect answer , but its not true that the present system could not be improved and made more user friendly.

[GU22]

although they may have the crucial bit of documentation back in their hotel room , they are not given the opportunity to provide it .

They do have the opportunity. It's been over 6 years, but if I recall correctly from my wife's interview the notice of interview tells the applicant to bring any relevant documents with them to the interview.

Both ECO's and applicants make errors, the difference is an ECO error does not impact on the ECO at all (unless they make a habit of it ) , but can totally destroy the applicant .

The same could be said of any system which uses human beings to make a decision; a job interview, a driving test, a court of law etc. But what is the alternative? There isn't one.

That perhaps is an unfairness in the system that can never be solved unless precise and exact rules were introduced, and even then a few applicants would fail because they could never meet them.

As I have said before, introducing a system in which a precise set of criteria have to be met would be unworkable and totally unfair.

There are simply too many variables. What about funds, for example? The amount of money needed for adequate maintenance varies so much between individuals, depending not least on which part of the UK they live in, a precise minimum amount is impossible to calculate. The ECO has to be allowed an element of discretion so a judgement can be made on each individual case and the circumstances of that case. Taking away that discretion would result in many more refusals than at present, and the refused applicant would not have any chance to reverse that decision. The simple reply to any appeal would be "The rules say you must have exactly a, b and c. and you haven't, appeal dismissed." How is that fairer?

[atlastaname]

Point 1) no stupid , what i mean is that they have the document but they are not aware they should bring it to interview. What is blindingly obvious to us is not always to a first timer... although i often think it should be .

Point 2) agreed

Point 3) we have had this discussion before and we don't agree on how its implementation would act out in the real world. Just have to disagree.

[GU22]

First I'm a prat, now I'm stuoid. I guess that makes me a stupid prat!

I shall endeavour to do better in future, and try to come up to your high standards.

[atlastaname]

Like it !!

[the gent]

The point is that sometimes a visa is refused when it could have been approved if only the ECO had

said that they require more proof of a certain point rather than just refusing , and you recently agreed with a poster (divorced and in a new relationship....remember?)who was refused and asked why they couldn't just have given him more time to produce what was required.

No, that is not what I said. I did say that I disagreed with the principal of refusals without an interview, and that if the ECO has doubts or questions then the applicant should be given the opportunity to answer those doubts and questions at an interview.

As shown by my calculations earlier, the ECO has very little time in which to make a decision on whether to approve, refuse or call in for interview. It is up to the applicant to provide all the relevant information to help the ECO in making this decision.

The immigration rules clearly state that the burden of proof lies with the applicant. You may not consider this is fair, but it is the way it is.

The Gent,you say

Appeals do not offer the appellant the opportunity to produce new evidence in support of a deficient application

Wrong. Not only does the AIT allow new evidence, not producing it means that the appeal will probably be dismissed. I refer you to the AIT website in general, and Neutral Citation Number (NCN) [2006] UKAIT 00064, RS and FD (Appeals without grounds) in particular. From that determination

Decisions

11. The first appellant has submitted no grounds of appeal. Rule 15(2)© applies, and in all the circumstances of the case, including those we set out below, we consider that this appeal is appropriate for determination without a hearing, and we so determine it.

12 The burden of proof is on the appellant. She has submitted no grounds of appeal, and no additional documents. There is nothing in the material before us that gives any reason to suppose that the respondent’s decision was not made in accordance with the Immigration Rules. Her appeal is dismissed.

If you search further through determinations, you will find that in nearly all successful appeals new evidence was introduced by the appellant; evidence the original ECO was not privy to.

Of course ECOs are only human and so as fallible as the next person. They do make mistakes. However, there are so many checks and balances in place that if the ECO does make an unjustified refusal the decision will be usually be reversed by the ECM or UKVisas long before the case reaches the AIT.

Think on this; if ECOs were infallible there would be no need for the review system, no need for the independent monitor, no need for the users panel and no need for the AIT. Unfortunately, they are not, but neither are applicants and sponsors. Yes, ECOs make errors, but so do applicants and sponsors. Far more 'unjust' refusals are the fault of the applicant or sponsor than are the fault of the ECO.

Oh dear.....

First let us exclude any appeal against refusal of an asylum seeker.

On the question of appeal against the decision of an ECO then the grounds are quite simple:

the decision was wrong in law

the decision was against the weight of evidence

the decision was perverse

The reference to new ' evidence ' is I suspect the submission of information that was available at the time of the application but had not been submitted when it could reasonably have been expected had it been required. This is not ' new ' evidence.

New evidence is another matter entirely. It arises after the application has been determined but may have have a material effect upon the outcome had it been known prior to the decision having been made.More often than not the adjudicator will find for the respondent in these circumstances but will make a recommendation in favour of the appellant in that a fresh application should be submitted which should be granted if the circumstances remain unaltered.

I hope this makes everything clear.

[vinny]

In appeal cases relating to the refusal of an entry clearance or a certificate of entitlement, the adjudicator can only consider the circumstances as they were at the time of the decision to refuse. See 85(5)( b ) and corresponding Explanatory Note (226). This does not mean that evidence that was not before the ECO cannot be produced at the appeal. It can. However, only evidence that relates to the circumstances existing at the date of the decision will be considered.

See also DR (ECO: post-decision evidence) Morocco* [2005] UKIAT 00038:

Conclusions

22. First, the provisions of section 85(5) include both the disapplication of subsection (4) and the positive requirement only to consider the “circumstances appertaining” at the date of refusal. The disapplication of subsection (4) excludes “evidence which concerns a matter arising” after that, (rather than the whole of subsection (4) as a literal interpretation might require). There is thus a contrast between “circumstances appertaining” at the date of decision and “a matter arising” after that date. (Pedantry would suggest “circumstances obtaining at” whereas “circumstances appertain to”.)

23. Second, the 2002 Act does not simply exclude evidence about everything which may have happened after the date of decision, which it could have done. We do not consider that that is the effect of considering “only the circumstances [then] appertaining”. Subsection (4) contains a distinction between “evidence” and “a matter arising”. What is excluded is not “evidence arising” after the relevant date.

24. Third, the purpose of that language is to achieve a different and markedly more restrictive result than that yielded by section 77(4) of the 1999 Act, which refers to the inclusion of evidence “which relates to relevant facts as at that date”. This latter phrase was clearly broad enough to cover evidence of subsequent events which confirmed what was predicted or foreseen at the date of decision, such as obtaining the predicted job or student place, or accommodation. It was broad enough to cover subsequent events which illuminate the facts as at that date.

25. This case provides an example of the distinction within subsection (5). There was an issue about whether at the time of the decision, the couple intended to live together as man and wife. In the language of the statute, did the circumstances appertaining at the date of decision include that intention. Evidence that those were then the circumstances can be provided by subsequent actions which cast light upon what the position then was. This is not the same as evidence which shows that the position has subsequently changed and that there now is an intention which previously was lacking. Evidence about a subsequent change in intention is clearly excluded.

26. Such evidence comes within the positive language of section 85(5)( b ). It is not excluded by (5)(a) because the existence of the relevant intention as at the date of decision is not “a matter arising” after that date. The evidence of telephone communications and letters after that date is not “evidence which concerns a matter arising after the date of the decision”; it is evidence which concerns a matter arising at the date of decision. This illustrates the distinction contained in subsection (4) and hence in (5) between “evidence” and the “matter arising” which it evidences. There is no simple exclusion of evidence arising after the relevant date. If it had been intended to exclude all evidence about anything which happened after the relevant date, it would have be simple enough to say so.

27. We take a different view when it comes to evidence about whether evidence of the coming to pass of an event which had been the subject of disputed predictability or likelihood is admissible. Evidence that it had not happened equally would be inadmissible. The usual issue is whether the particular matter or circumstance is likely at the date of decision; eg obtaining employment. The subsequent obtaining of the predicted job is a matter arising afterwards and evidence about it is excluded. It is akin to evidence being inadmissible to show that an intention has changed. The fact that the new matter or circumstance eg the job may have been predicted or reasonably foreseeable does not avoid it being a matter arising after the event, nor is it a circumstance appertaining at the time of decision.

28. Indeed, the fact that something happened does not logically demonstrate its likelihood anyway, because unlikely events do happen. The value of the occurrence of an event in proving its likelihood of occurrence would have to be demonstrated by something other than that it happened. It is difficult to see, absent unduly complex analysis, how it could be done.

29. Applying those considerations to the instant case, the Adjudicator dealt unnecessarily with whether the degree of communication was foreseeable. His conclusion that it was not does not affect the application of section 85(5) as we see; it is simply irrelevant as a means of admitting or excluding evidence. However, he does conclude that it shows “a continuing and subsisting relationship”. We think that he means by that that the later evidence satisfied him that as at the date of the Entry Clearance Officer’s decision, the couple did indeed genuinely intend to live together as husband and wife, rather than that they first only intended to do so after being refused entry clearance.

30. Accordingly, taking the view of the law which we do, and differing from the Adjudicator’s approach, but taking his view of the now admissible evidence, the Appellant satisfies the Rules.

31. This appeal is allowed under the Immigration Rules; we direct that entry clearance be granted. The human rights appeal does not therefore arise. It is starred for what we say about section 85.

[GU22]

The Gent, your information is out of date.

It used to be the case that any appeal would only consider the evidence that was put before the ECO, but that has changed. Appelleants can now introduce new evidence which the ECO was not privy to at the time of the original decision. Although, as Vinny says

In appeal cases relating to the refusal of an entry clearance or a certificate of entitlement, the adjudicator can only consider the circumstances as they were at the time of the decision to refuse. See 85(5)( b ) and corresponding Explanatory Note (226). This does not mean that evidence that was not before the ECO cannot be produced at the appeal. It can. However, only evidence that relates to the circumstances existing at the date of the decision will be considered.

From the AIT FAQ

My appeal has been allowed. How soon will I get my visa?

Our role is to hear and decide an appeal. We do not issue visas.

Information on what happens following an appeal can be found at:

www.ukvisas.gov.uk

[Diplomatic Service Procedures - Entry Clearance Volume 1 General Instructions paras 27.11 and 27.12]

Which says

27.11 - When an appeal is allowed

When an adjudicator allows an appeal and directs that an entry clearance be issued, there is a statutory duty under Section 87 of the 2002 Act for the ECO to comply with the direction, unless the determination is subject to further appeal. Sometimes, the adjudicator will allow an appeal but not give directions for issue.

When the Home Office informs the ECO that an appeal has been allowed, that no appeal has been lodged with the Tribunal and that the adjudicator has directed that an entry clearance be issued, the ECO should confirm whether the appellant still wishes to travel. If so the entry clearance should be issued. Where directions to issue are given, it is mandatory under Section 87(2) of the 2002 Act to comply: if an ECO has reason to think it is no longer appropriate to comply (if, for example, a sponsor in a settlement case withdrew sponsorship) s/he should refer the case to UKvisas Policy Section immediately.

When the Home Office informs the ECO that an appeal has been allowed, that no appeal has been lodged with the Tribunal and that the adjudicator has not given directions, the ECO should interview the appellant to ascertain whether s/he still wishes to travel, the category of entry clearance required and whether there has been any change of circumstances. This should generally not be a detailed interview. The entry clearance should be issued UNLESS there has been significant and material change of circumstances since the refusal decision of which the adjudicator would be unaware or a material deception has come to light of which the adjudicator would be unaware.

When the Home Office has informed the ECO that the adjudicator has allowed the appeal but that an application has been made to the Tribunal for a further appeal, no action is necessary pending the Tribunal's determination. However, it is good practice to place the file on a regular bring up.

27.12 - Refusing those who have had appeals allowed

Posts should not seek to re-refuse those whose appeals have been allowed without directions from the adjudicator. The criteria for re-refusing an entry clearance are restricted to either a significant and material change in circumstances since the refusal decision or a material deception of which the adjudicator would not have been aware. Any re-refusal must be endorsed by an ECM. The refusal notice must be copied to the appellate authority via APC to link with their file, together with a covering note to advise the adjudicator that if the appellant returns to seek a direction under Section 87(1) of the 2002 Act the reasons why the ECO was not prepared to issue the entry clearance should be borne in mind. Copies of these should be sent to UKvisas Policy Section.

If the refusal attracts a right of appeal which must be notified, the appellant should be issued with new forms APP 200 and Form N2. If an appeal is lodged, you should give the highest priority to the preparation and despatch of the explanatory statement and other pertinent documents.

ECOs should not devote significant time to re-interviewing successful appellants. Where the ECO has received a copy of the determination from the Home Office appellants should not be placed in a queue for re-interview.

They should be dealt with when they present themselves to the Visa Section. Where the ECO has not received a copy of the determination, the appellant should be given an appointment 35 days after the date of the determination to allow the POU time to consider whether to seek leave to appeal to the Tribunal and to inform the Post of their decision.

I hope it is clear to you now.

[the gent]

GU22,

Not sure what you are trying to say but given your doggedness in the past, a virtue in many circumstances but not necessarily in these, I rather think you are agreeing with me but for reasons you do not fully understand.

Let's try again.

X is refused on the grounds that Y, her spouse, has no job and insufficient funds to support without possible recourse to public funds etc. She appeals and the hearing is duly listed. One month prior to the hearing Y wins 1 million on the lottery and submits this windfall as evidence before the adjudicator arguing that the ECO was wrong to refuse for lack of funds. Under the current regime the adjudicator would dismiss the appeal finding for the respondent since the new circumstances did not obtain at the time of the ECO's decision nor was there any likelihood of such a prospect arising.

HOWEVER, given the change in circumstances the adjudicator might well observe that the applicant should resubmit an application which, in the event of all other criteria being met, should be granted.

X is refused on the grounds that she and Y have produced insufficient evidence of their devotion to each other leading the ECO to conclude that both parties do not intend to live together permanently. An appeal is submitted and in the intervening period Y cohabits with X. Evidence of the latter is submitted as evidence of the relationship which they maintain had already been demonstrated to the ECO, the strength of which he had doubted. The adjudicator would now allow that evidence since it arises out of a set of circumstances that obtained prior to refusal in that both X and Y had stated they wished to live together.

You know what, I think you were a lot happier when atlastaname was silomfan.....

[GU22]

Not sure what you are trying to say but given your doggedness in the past, a virtue in many circumstances but not necessarily in these, I rather think you are agreeing with me but for reasons you do not fully understand.

On the contrary, you keep talking about evidence of a change of circumstances since the refusal, I am not. I am talking about new evidence pertaining to the situation at the time of the application, but not submitted at that time. Such evidence is allowed at an appeal.

Why can you not simply admit that when you said

Appeals do not offer the appellant the opportunity to produce new evidence in support of a deficient application

that you were wrong? Not your fault, the rules have changed and you obviously haven't kept up to date.

If you care to search the archives you will see that I have sometimes posted something I believed at the time to be correct, but I have subsequently been shown to be wrong. Ditto for atlastaname. On such occasions both of us have had the grace to admit and accept it.

[atlastaname]