NEW ADMINSTRATIVE FEE FOR REVIEW REQUESTS: Challenging Home Office decisions where there is no right of appeal

On 10 September 2014 the Home Office announced the new Immigration and Nationality Fees effective from 1 October 2014.

The written Ministerial statement was laid in the House of Commons on 10 September 2014 by James Brokenshire MP, Minister for Security and Immigration who stated;

” I am today announcing some changes to fees for immigration and nationality applications made to the Home Office. The government reviews these fees on a regular basis and makes appropriate changes as necessary. The amended regulations are for fees set at or below the cost of processing the relevant applications

We are making some targeted amendments to support the implementation of provisions in the Immigration Act 2014, including expanding the list of application routes required to pay a fee for the enrolment of biometrics. We are also taking the opportunity to amend one other fee to support economic growth.

Further details of the changes are provided in the Explanatory Memorandum for the regulations. The government intends to bring most of these amendments into force from 1 October, though some of the new fees will come into effect later in the year to align with changes to processes”.

Although the vast majority of the fees remain at the level as set out from 6 April 2014, the Home Office has also introduced a new Immigration Fee of £80.00 to be rolled out from late 2014.

The Explanatory Note to the Immigration and Nationality (Cost Recovery Fees)(Amendment) Regulations 2014 No. 2398, clarifies that the new fee is for the process of Administrative Review regarding a review on request of a decision in connection with immigration in circumstances where the applicant has no right of appeal in relation to the decision. The Regulations provide that if the outcome of the administrative review is that the decision in relation to the connected application is maintained but for different or additional reasons to those specified in the decision under review, no fee is payable in respect of any request for administrative review of the revised decision or of any subsequent decision made in relation to the connected application. The Home Office is required to refund the specified fee if the outcome of the administrative review is that the decision in relation to the connected application is withdrawn. The Home Office may waive or reduce the specified fee.

It may be that one of the adverse decisions necessitating a review request which could be covered by the administrative fee would arise out of Article 8 private and family human rights claims where an applicant without leave to remain is refused leave without a right of appeal.

The usual course of action where no right of appeal is given is to either challenge the decision by way of judicial review or submit a new application where there is a basis for this. Leaving the United Kingdom is the last resort when an applicant believes that they have good reasons to be considered to remain here.

Increasingly in practice, for those unable to have recourse to judicial review or submit a new application for various reasons for example due to inadequate or no financial recourses, simply writing a letter to the Home Office with supportive evidence and information and requesting a review/reconsideration has been a relevant alterative option in challenging the refusal decision.

Requests submitted to the Home Office seek either a review with a view to being granted leave to remain or failing that provision of an appealable immigration decision.

The Home Office Guidance, “Reconsiderations” valid from 21 January 2014 provides that an applicant can ask for the negative decision to be reviewed as part of a reconsideration request if an application was made in the UK. This request is not viewed as a formal appeal. A reconsideration request can be made where it is believed that the relevant immigration rules or policies were not followed correctly when the decision was made. Currently a letter can be sent to the Home Office stating why an applicant considers the decision to be wrong. The request must be made as soon as possible and no later than 3months after the decision is received on the application. The policy sets out the circumstances in which the request will be rejected. A request cannot be made if it relates to new evidence that was not received by the Home Office before the decision date. Only one reconsideration request can be made.

There is set out some reconsideration criteria which in summary apply as follows;

  • where there is new evidence to prove the date of the application;
  • where there is new evidence to prove that an applicant’s documents were genuine;
  • where there is evidence that information received by the Home Office before the decision date was not available to the team who made the decision.

If however the original decision is maintained, this is not a new immigration decision and does not generate a new right of appeal.

Currently where a reconsideration request is sought the Home Office seems to be frequently sending out a 6 page Questionnaire to be completed within a set time limit but with no fee payable. The accompanying letter to the questionnaire puts forward the basis of the request for information as, “ We are in the process of reviewing your client’s request for a Reconsideration and would be grateful if your client could complete the attached form to provide us with an update to your client’s current circumstances. This information will assist in assessing whether your client ‘s case is eligible for reconsideration”.

It may be that the Home Office will publish new separate guidance on Administrative Review Requests that relate to the new fee or the Reconsideration Guidance may continue to apply but in an amended form. As a fee will be payable in relation to an Administrative Review Request, it can be expected that a relevant new Home Office Form may be published soon.

Although it may be considered that yet another fee is being introduced to be borne by those already in a precarious position with an adverse decision made yet having no right of appeal, a refund may be due or a fee exemption may be applicable depending on personal circumstances.

For those applicants with little or no financial resources reliant upon Article 8 human rights claims, a reconsideration or review request may involve considerably less cost than commencing a judicial review claim which currently requires a lodgment fee of £140 or submission of a new application by reliance on Form FLR(FP) and where relevant Form FLR(O) with a current starting Home Office fee of £601 for a single applicant.

Where however the resultant decision from the Home Office following a review request fails to provide the grant of leave sought or an adequate remedy such as an in-country right of appeal, judicial review proceedings may be the most appropriate avenue of challenge in appropriately viable cases however such a claim would need to be lodged within the relevant time limit.

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