Refusal Decisions: The Various Available Avenues of Challenging Adverse Home office Decisions

Where a  person  is refused   leave to remain by the Home Office,  considerable distress inevitably  arises.  An in -country right of appeal may be provided or the applicant may be  required to appeal once they have left the UK.  On the other hand, a right of appeal may be denied altogether.

Where  a  refusal decision is made by the home office, some of avenues of challenge  mentioned below might apply:

  • Appealing to the First Tier Tribunal;
  • Seeking a Reconsideration Request from the Home Office;
  • Submitting an Administrative Review Request to the Home Office;
  • Submitting a Reconsideration Request to the Home Office where a human rights or protection based claim was refused prior to 6 April 2015 and a right of appeal was not given;
  • Commencing a Judicial Review claim;
  • Approaching a local MP for his involvement in making representations to the Home Office;
  • Invoking the Home Office Complaints procedure;
  • Submitting a new Home Office application with new information and evidence.

The question of which method of challenge is appropriate  will  depend  on the facts of a particular case.

RIGHT OF  APPEAL TO THE  FIRST TIER TRIBUNAL

An appeal is the most appropriate way for an applicant to challenge an appealable decision. A person can make an appeal by doing the following:

  • completing the IAFT – 1 Form (sent out with the original refusal, or available on the Tribunal website)
  • submitting the Form with grounds of appeal and the decision under challenge to the Immigration and Asylum Chamber (IAC) of the First Tier Tribunal.
Appellants have 14 calendar days to submit the appeal from the date the original refusal decision was sent to them.

An appeal fee of £140.00 is payable by each appellant, unless an exemption applies.

 Non- EEA  Appeals:

The  Keeling  Schedule  prepared by the Home Office helpfully  shows Part 5 of  Nationality, Immigration and Asylum Act 2002( “2002 Act”)  as amended by the Immigration Act 2014,  Sections 15 and  17 and Schedule 9 Part4.

The new framework for appeals established by the Immigration Act 2014 against refusal of protection and human rights claims  came fully into force on 6 April 2015.  However there were saving provisions made in the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 to protect certain persons who had rights of appeal at the time they applied for leave to enter or remain.

In accordance with the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014, the post-Immigration Act 2014 appeals regime applied to the following individuals from 20 October 2014:

  • a person who becomes a foreign criminal within the definition in section 117D(2) of the 2002 Act on or after 20th October 2014
  • a person who is liable to deportation from the United Kingdom under section 3(5)(b) of the 1971 Act because they belong to the family of the person.

By virtue of the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014, the post-Immigration Act 2014 appeals regime applied to any decision to make a deportation order, decision to refuse to revoke a deportation order, or decision made under section 32(5) of the UK Borders Act 2007 made on or after 10 November 2014 in respect of:

  • a person who is a foreign criminal within the definition in section 117D(2) of the 2002 Act
  • a person who is liable to deportation from the United Kingdom under section 3(5)(b) of the 1971 Act because they belong to the family of the person

Under Section 82 of the 2002 Act a person may appeal to the Tribunal where a decision has been made to either:

  • refuse a protection claim
  • refuse a human rights claim
  • revoke protection status

A protection claim is a claim that removal of a person would breach the UK’s obligations under the Refugee Convention or in respect of a person eligible for a grant of humanitarian protection (Section 82(2)(a) 2002 Act).

A human rights claim is a claim that to remove a person from or require them to leave the UK or to refuse them entry into the UK would be unlawful under section 6 of the Human Rights Act 1998.  In this regards, further reference can  be made to  the    current Home Office  Guidance policy Rights of appeal Version 3.0”- https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/458403/Rights_of_appeal_guidance_v3_0.pdf

Rights of appeal exist against the following decisions:

  1. Refusal of a human rights or protection claim and revocation of protection status. These appeal rights are in Part 5 of the Nationality, Immigration and Asylum Act 2002 Act;
  2. Refusal of entry clearance and refusal to vary leave to remain, in some situations, where the application was made before the Immigration Act 2014 was in force;
  3. Refusal to issue an EEA family permit as well as certain other EEA decisions. These appeal rights are in Regulation 26 of the Immigration (European Economic Area) Regulations 2006;
  4. Deprivation of citizenship. Section 40A of the British Nationality Act 1981 applies.

Where there is no right of appeal, it may be possible for a person to apply for an administrative review of a refusal of an application if it is an eligible decision and it is alleged that a case working error has occurred.

The following applications made  in the UK under the Immigration Rules are human rights applications and the starting position is that there is a right of appeal against refusal:

  • Paragraph 276B (long residence);
  • Paragraphs 276ADE(1) or 276DE (private life) ;
  • Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
  • Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
  • Part 8 of these Rules (family members) where the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK;

But not: paragraphs 319AA to 319J (PBS dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant);

  • Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM; Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
  • Appendix FM (family members)

But not: section BPILR (bereavement) or section DVILR (domestic violence)

The following claims made outside the UK  under  the Immigration Rules are human rights applications and there is a right of appeal against refusal:

  • Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
  • Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application ;
  • Part 8 of these Rules (family members) where the sponsor is present and settled in the UK or has refugee or has humanitarian protection status in the UK.

But not: paragraphs 319AA to 319J (PBS dependents), paragraphs 284, (sponsor granted settlement as a PBS Migrant) ;

  • Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
  • Appendix FM (family members)

But not: section BPILR (bereavement) or section DVILR (domestic violence)

Under Section 84  of the  2002 Act, an appeal against a refusal of a protection claim must be brought on one or more of the following grounds:

  • removal of the appellant from the UK would breach the UK’s obligations under the Refugee Convention;
  • removal of the appellant from the UK would breach the UK’s obligations in relation to persons eligible for a grant of humanitarian protection;
  • removal of the appellant from the UK would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention);

An appeal against the revocation of refugee status or humanitarian protection may only be brought on the grounds that removal would breach the UK’s obligations under the Refugee Convention or the UK’s obligations in relation to persons eligible for a grant of humanitarian protection.

In accordance with section 85 Nationality, Immigration and Asylum Act 2002, the Tribunal must not consider a new matter, (which amounts to a ground of appeal listed in section 84) unless the Secretary of State has given the tribunal consent to do so.

Section 92 of the 2002 Act sets out if a person can bring an appeal from within or outside of the UK. Where the person was outside the UK when they made the claim, they must appeal from outside the UK. When the person was inside the UK when they made a claim they may appeal from within the UK unless the claim has been certified under Section 94 or 94B of the 2002 Act.

Section 92  of the 2002 Act  should be read together with sections 94 and 94B which relate to certification when an appeal that would otherwise take place in the UK must be lodged after the appellant has left the UK.

Under Section 3C of the Immigration Act 1971 leave is statutorily extended for those situations where a person had leave when they made an application or claim and that leave expired prior to the Secretary of State  making a decision on the application or claim. Leave is extended until any appeal against refusal is finally determined.

Section 3D of the 1971 Act provides for the extension of leave until any appeal is determined where a person’s leave is varied so that no leave remains.

Where the right of appeal is exercised from within the UK, Section 78 of the 2002 Act provides that the appellant will not be removed while the appeal is pending.

Note: Relevant Home office Guidance Policy for consideration, “Rights of appeal Version 3.0”-

EEA Appeals:

Under Section 109 of the 2002 Act, regulations can be made to provide for an appeal against an EEA decision. The Immigration Act 2014 makes no specific provision for appeals against EEA decisions.

An EEA decision made before 6 April 2015 is governed by the (EEA regulations pre-6/4/15).

An EEA decision made on or after 6 April 2015 will be governed by the revised EEA regulations.

The EEA regulations have been amended to reflect the legal position as set out in the Immigration Act 2014 for asylum, protection and human rights claims.

Under regulation 26 of the Immigration (European Economic Area) Regulations 2006 (‘The EEA Regulations’) there is a right of appeal where a European Economic Area (EEA) decision has been made. An EEA decision means a decision under the Regulations that concerns:

  • a person’s entitlement to be admitted to the UK;
  • a person’s entitlement to be issued with or have renewed, or not have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card;
  • a person’s removal from the UK;
  • the cancellation pursuant to regulation 20A, of a person’s right to reside in the UK;

But an EEA decision does not include decisions under Regulations 24AA (non-suspensive appeal certifications) or 29AA (readmission to admit case in person following non-suspensive removal).

RECONSIDERATION REQUESTS TO THE HOME OFFICE

The  starting  point is that  the Home Office is not legally required to reconsider a decision made on an application for leave to remain.  When an applicant has a right of appeal or administrative review, the correct method for them to challenge the decision is to lodge an appeal or administrative review.  There are  however limited circumstances  where a reconsideration  request can be submitted to the home office.  An applicant  who believes a relevant Home Office decision, whether for limited leave to remain or settled is incorrect can seek a reconsideration from the  Home Office.

 A reconsideration is a review by the Home Office of a decision made in the UK on an application for one of the following:

  • further, limited or indefinite leave to remain
  • transfer of conditions (TOC)
  • no time limit (NTL)

The Home Office will normally only reconsider applications, if there is no right of administrative review against the decision; there is no right of appeal against the decision, unless the decision was made before 6  April 2015 and meets the requirements set out in the  relevant home office policy Guidance, “Reconsiderations – version 9.0 Published for Home Office Staff on 9 April 2015”;

The Home Office can accept a reconsideration request that meets the requirements of this policy even if an appeal has also been lodged against the decision, unless one of the following applies:

  •  the decision was made on or after 6 April 2015;
  •  the decision was upheld at appeal and the migrant has exhausted their appeal rights.

Applicants have 14 calendar days to submit the appeal from the date the original decision was sent to them. Applicants have 3 months to request reconsideration if they do so in relation to a decision made before 6 April 2015.

If the home office grant leave in a case with a pending appeal, this will stop the appeal, unless it is brought on race discrimination grounds.

The Home office will also normally reconsider applications where the reconsideration request was made on or after 13 November 2012, it relates to a granted application with no right of administrative review, and the applicant believes the type of leave granted or the expiry date of the leave is incorrect.

What Decisions Cannot be Reconsidered :

  • entry clearance in any category;
  • in the UK decisions which have a right of administrative review;
  • refusal of protection claims (is asylum and humanitarian protection claims as well as Article 3 claims of the European Convention on Human Rights);
  • European Economic Area (EEA) nationals and their family members;
  • Bulgarian and Romanian nationals;
  • Nationality decisions;
  • Port decisions;
  • Curtailment decisions;
  • Enforcement decisions ;
  • Representations against removal made to a local immigration team

Reconsideration Where The Reconsideration Request Was Made on or After 13 November 2012 and Relates to a Refused Application:

A request made to reconsider a decision sent to the Home Office on or after 13 November 2012 will only be considered if it relates to a:

  • granted application;
  • refusal decision and the migrant provides evidence that impacts upon the decision outcome and it: -proves the date of application -identifies evidence which was received by the Home Office before the decision date but was not available to the caseworker at the point of decision
  • -proves that documents provided with the original application were genuine

The reconsideration request must:

  • be submitted in writing in a letter – there is no home office fee to pay
  • be sent to the Home Office by the original applicant or their legal representative
  • explain why the decision is incorrect or inconsistent with existing policy, stating how it did one or more of the following: -was not in line with relevant law, policy or guidance
  • -failed to take account of, or misinterpreted, relevant evidence submitted to the Home Office before the date of the decision

The reconsideration request must be submitted within 14 working days of the deemed date of receiving the decision, for all decisions made on or after 6 April 2015.

Applications submitted after this deadline has expired must normally be rejected, unless both the following apply:

  • there are exceptional reasons which prevented the applicant from making a request within the time limit
  • the request was made as soon as reasonably practicable.

The applicant may need to provide evidence of the exceptional circumstances.

For decisions made before 6 April 2015, the deadline is 3 months from the deemed date of receiving the decision.

The deemed date of receiving a decision sent by post to a UK address is 2 working days after the decision was posted, unless the migrant can prove they received the decision on a later date.

For decisions made on or after 9 July 2013, if an applicant makes a reconsideration request and then submits a fresh application for limited or indefinite leave to remain, this will have the effect of withdrawing the reconsideration request.

An applicant cannot submit more than one request for a reconsideration of the same decision.

 When reconsidering granted applications, home office caseworkers only need check the following aspects of the applicant’s grant of leave that they have challenged are correct:

  •  period of leave was granted
  •  condition code was used
  •  applicant’s details were on the grant of leave

Reconsideration of Article 8 Claims Where the Reconsideration Request was Made on or after 13 November 2012 and relates to a refused application:

 The Home Office are required to reconsider the article 8 claim in line with the Immigration Rules in Appendix FM (family life) and/or paragraph 276ADE (private life). Since 9 July 2012 the Home Office has considered article 8 claims against the five and 10 year routes for partners, parents and private life. Home Office caseworkers must therefore consider any reconsideration under the relevant routes. They are required to reconsider article 8 claims from applicants who applied under the five year partner or parent routes against the five year partner and parent routes. If they do not meet the requirements, the home office must also consider them against the 10 year partner, parent or private life routes (as appropriate). If an applicant does not meet the requirements of the rules, home office caseworkers must go on to consider if there are exceptional circumstances in their case. Home Office caseworkers must only consider applicants who applied under the 10 year partner, parent or private life routes against the 10 year route. If an applicant does not meet the requirements of the rules the home office must go on to consider if there are exceptional circumstances in their case.

The reconsideration is a legacy request submitted before 13 November 2012 and there are still reasons to reconsider the decision:

A legacy reconsideration request is one sent to the Home Office before 13 November 2012.

The legacy guidance  applies to the following reconsideration requests:

  • temporary and permanent migration general casework decisions for leave to remain made:
  • -by postal application
  • -at a public enquiry office (PEO)
  • ·     transfer of conditions (TOC)
  • ·     no time limit (NTL) applications

The Home Office will reconsider these decisions once if they meet all the following requirements:

  • the  request was sent before 13 November 2012;
  • ·the Home Office has not yet issued a substantive response to the reconsideration request addressing the issues raised;
  • ·    applicant’s immigration application or status has not yet been resolved in one of the following ways, they:

-have since been granted leave to remain in the same or another category

-have left the UK and their leave has expired or lapsed

-been removed or deported from the UK

-appealed and exhausted all their appeal rights

-sought judicial review of the decision and permission was refused or the decision was subsequently upheld at the substantive hearing

The legacy guidance does not apply to:

·     reconsideration requests sent on or after 13 November 2012;

·     curtailment decisions;

·     refusal of asylum applications (including decisions on protection-based claims under article 3 of the European Convention on Human Rights);

·     port or enforcement decisions;

·     nationality decisions;

·     decisions on applications made outside the UK

Human Rights Legacy Cases:

Legacy human rights reconsideration requests are those submitted before 13 November 2012,

where all the following apply:

  •  the request is about an application for leave that raised an article 8 claim
  •  the decision refused the article 8 claim
  •  the reconsideration request remains outstanding

To decide how to consider the legacy request, the home office check what type of application was originally made, being     aware that the approach to dealing with article 8 cases changed on 9 July 2012, when the new family and private life rules came into force.

From this date onwards, Home Office policy is that any consideration of article 8 must be in line with Appendix FM and paragraph 276ADE, rather than considering case law.

If the legacy application was made under the Part 8 family or Part 7 long residence Immigration Rules before 9 July 2012, the home office  reconsider the application against the rules in force at the date of the application as these were the rules against which the original application was considered.

If the legacy application was for article 8 consideration outside the rules,  the  reconsideration must address article 8. Since the introduction of the family rules on 9 July 2012 and  under the Reconsideration Policy, Home Office policy is that   reconsideration of the article 8 claim must not consider case law. Instead,  the home office  consider whether or not the applicant meets the provisions of the current family and private life Immigration Rules, set out in Appendix FM and paragraph 276ADE.

For article 8 cases both inside and outside the rules, the home office  only consider the evidence available to the caseworker, and circumstances of the applicant, at the time of the original decision.

If an applicant fails to meet the requirements of the rules,  the home office  go on to consider if there are exceptional circumstances in their case.

If the applicant’s family or private life circumstances have changed since the date of their reconsideration request, for example if they have new family members,  the home office do  not consider these new issues as part of the reconsideration.  If the applicant wants to have their article 8 case assessed again, they must submit a new valid application under the relevant Immigration Rules.

Asylum Legacy Cases:

Where an applicant has an outstanding legacy reconsideration request, they subsequently applied for asylum and their asylum application was refused:

·         if the applicant had asked for reconsideration of an article 8 claim outside the rules, the subsequent asylum consideration will have already addressed this, so under the Reconsideration Policy, it is considered that   there is no need to proceed with the reconsideration and  the home office will reject the request.

·         if the applicant made an application under the family or long residence rules applicable at that time, the asylum consideration will not have looked at those old Immigration Rules, so the home office will proceed with the reconsideration

Reconsideration of ’no recourse to public funds’ condition code:

Applicants granted leave under the 10 year partner, parent or private life routes may also request a reconsideration of the condition code ‘no recourse to public funds’ attached to that leave.

This would apply if an applicant provided information and evidence which relates to the financial circumstances with their application for leave to remain to support a claim that they are destitute or that there are compelling reasons which relate to the welfare of a child of a parent in receipt of a very low income, but the applicant thinks a casework error has been made in assessing this against the policy on when to allow recourse to public funds.

In this circumstance, the home office  must consider any additional information which relates to the financial circumstances the applicant has submitted, as well as considering the information submitted with the original application. This allows the home office  to take a full and appropriate decision on whether or not they should be granted recourse to public funds, on the basis of up-to-date evidence.

Applicant’s status after submitting a reconsideration request:

If an applicant makes a reconsideration request, it does not:

 

·     give them 3C or 3D leave:

-a reconsideration request is not an application for variation of leave or an appeal so it does not extend the applicant’s leave under section 3C or 3D of the Immigration Act 1971 whilst the home office are reconsidering the decision (although they may otherwise have leave under section 3C if there is an appeal pending in respect of the decision)

-the decision made on a reconsideration does not itself trigger a right of appeal although

may be susceptible to judicial review

·     necessarily stop the Home Office from taking any removal action while the reconsideration request is outstanding; section 78 of the Nationality, Immigration and Asylum Act 2002 prevents removal when an appeal is pending but a reconsideration request is not a pending appeal, so a migrant in this position is liable to removal.

 

When the home office reconsider a decision, they   focus on considering the points   an applicant has raised in the reconsideration request and satisfy themselves that, having taken those into account, the original decision was correct.

When considering the details of the request for legacy cases, the home office check that:

  • -the decision was lawful, and:
  • -made in line with the Immigration Rules and any other relevant legislation, and consistent with any applicable policies, guidance and instructions that applied on the date the decision was made (in exceptional circumstances, where transitional provisions are in place following an Immigration Rules change, the rule in force at the date the application was made may apply and you must check this)
  • -consistent with the Home Office’s duties under Section 55 of the Borders Citizenship and Immigration Act 2009 to make the best interests of any child affected by the decision a primary consideration
  • – all correctly submitted information and documentary evidence was taken into account and correctly assessed before the decision was made
  • -the decision was served on the correct letter or notice, and the applicant was notified correctly of any applicable appeal rights
  •  -the decision was served correctly to the applicant’s last known address or to their representative
When home office caseworkers reconsider a decision, they are   required only   to consider the evidence and information supplied either:

·     with the original application

·     before the date of the decision

unless it meets both the following requirements:

·     proves the date of application, that documents provided with the original application were genuine, or that relevant documents were received by the Home Office before the decision date and were not considered

·     impacts upon the decision outcome and/or any subsequent appeal rights

The home office caseworker is required to explain in the reconsideration decision letter that if the applicant wants the Home Office to consider new information outside the criteria, they must submit a new valid application under the relevant Immigration Rules:

·     on the correct form

·     with the specified fee, if applicable

This requirement applies to all immigration applications, including non-protection related requests to be granted leave under article 3 and/or article 8 of the European Convention on Human Rights.

If the request for reconsideration relates to the refusal of an application for leave on the basis of article 8 family and private life, if the request does not meet the sift requirements set out in the Home Office Reconsideration policy, home office caseworkers are required reject it. If the request meets the sift requirements, the home office must accept the request and reconsider it.

The home office caseworkers must   also consider curtailment if the migrant still has leave to remain and there is evidence that they may meet the curtailment criteria set out in the Immigration Rules. Further, the migrant may have committed a criminal offence since the leave was granted.
When reconsidering the original decision, the home office caseworker is required to be alert to the possibility that , if the applicant goes on to challenge the decision with a letter before claim or judicial review, the next caseworker can use the reconsideration decision letter to assist in defending the decision. An  applicant  may send  a ‘letter before claim’, also known as the pre-action protocol (PAP) letter after receiving the reconsideration decision. The PAP letter may challenge the original decision, the reconsideration decision, or both.

If  the home office caseworker  reverses (withdraw) the decision because it was incorrect, they  must grant leave as appropriate to the application being reconsidered, unless it must now be refused on general grounds.  The start date of the leave granted is the date on which  the home office  reverse the incorrect previous decision and make a new decision. If the migrant made an in time application and the applicant’s  leave subsequently expired, withdrawing the incorrect decision has the effect of reinstating section 3C leave, so there is no break in the continuity of the migrant’s leave.

If the reconsideration request relates to aspects of an approved application, such as the period of leave granted or condition code, the home office must rectify any errors they identify.

If  the  home  office  reconsider a refusal decision and decide the original decision was mainly but not wholly correct  the home office will  maintain the original refusal of the application.  This  may be   because the  application should also have been refused for other reasons; the decision notice contained the correct refusal reasons but was worded incorrectly or the  decision was correct but was issued on the wrong decision notice template. In this case , the home office  issue a supplementary letter to address the error(s) but maintain the original refusal date.

If  the home office  reconsider the case and decide it should have been refused for different reasons,  they will   withdraw the original decision  issue a new decision notice (including fresh appeal rights if the original application was in-time).

If the home office  withdraw the original decision and issue a new refusal notice, this will reinstate any 3C leave the migrant benefitted from following submission of the original application.

If the home office maintain the original decision, they are required to tell the applicant of the outcome in writing. The home office do not need to produce a new decision notice if they maintain the original decision. This is not a new decision and does not generate a new right of appeal. Any reconsideration request about a decision made on or after 6 April 2015 which has a right of appeal will be rejected.

Where the applicant has remaining leave (other than leave under section 3C), the home office will write the reconsideration decision letter maintaining a decision and tell the applicant they can submit a new application with the required fee before their leave expires.

If the applicant has no remaining leave, the home office will send the reconsideration decision letter to the applicant, and also tell them to make arrangements to leave the UK subject to any in the UK appeal rights. If appropriate, make and serve a removal decision at the same time. The Home Office will follow standard operational processes for migrants who no longer have leave to remain in the UK, by allocating the case to the relevant case ownership unit for enforcement action.

ADMINSTRATIVE  REVIEW

The introduction of administrative review is a part of the measures to implement changes to the immigration appeals system set out in the Immigration Act 2014. Now a person will only be entitled to appeal against:

• refusal of a human rights claim

• refusal of a protection claim, namely a claim for asylum or for humanitarian protection status

• revocation of protection status

The relevant  Home office Guidance policy is  “Administrative Review Version 5.0 EXT Published for Home Office staff on 17 August 2015”.  The guidance relates to  the administrative review of eligible decisions under the Immigration Rules.

The guidance tells home office caseworkers how to validate, consider and decide applications for administrative review of in country or overseas decisions made under the Immigration Rules.  It also covers validation of administrative review applications relating to border decisions.  The  guidance relates to Rules 34L – 34Y in Part 1 of, and Appendix AR to, the Immigration Rules. The guidance also covers the policy for administrative review of entry clearance decisions. For points-based system applications the process is described in the relevant Tier’s policy guidance.

In -country administrative review:

A person who makes an application on or after the relevant date and has received an ‘eligible decision’ may apply for an administrative review.

Eligible decisions are those made on:

  • in country Tier 4 applications made by either a main applicant or their dependant(s) on or after 20 October 2014;
  • in country Tiers 1, 2 or 5 applications made by either a main applicant or their dependant(s) on or after 2 March 2015, including indefinite leave to remain applications under those routes;
  • in country applications where the decision was made on or after 6 April 2015, unless the applicant applied as a visitor or made a protection or human rights claim

and for which the outcome is that the application is either:

– refused

-approved and a review is requested of the period or conditions of leave granted

If the Home Office has refused an application, the decision letter will tell the applicant if they can apply for administrative review.

If the Home Office approves an application, the decision is an eligible decision for the purposes of administrative review and if the applicant thinks the Home Office granted the wrong period of immigration leave, they can also apply for an administrative review.

The applicant must apply online using the form at – Apply for an administrative review.

Where an applicants  has technical problems with the online administrative review form, they must e-mail the administrative review team at:

Admin.review.enquiries@homeoffice.gsi.gov.uk

This email address must only be used for enquiries about the administrative review process and not for general enquires about immigration matters.

There is a fee of £80 for an administrative review.

Where the outcome of an administrative review is that leave is granted the fee will be refunded.

The fee is only refunded if the:

 

·         application for administrative review is rejected as invalid

·         decision on the review is to grant leave, this includes cases where the outcome of an

administrative review is that the original grant of leave was issued for the wrong period, or

subject to the wrong conditions

The fee will not be refunded if the application for administrative review is valid but the original decision is upheld.

The fee should normally be refunded within three weeks of the date of decision.

 

An Administrative Review will allow the applicant to raise any permitted case work error

(defined in appendix AR of the Immigration Rules) that they think there has been on the

application and, if an error has been made, have it corrected.

 

The administrative review will be carried out by a different person on an independent team.

The time limit for applying or administrative review for in country decisions is 14 calendar days from the date the applicant receives the notice or biometric residence permit (BRP) (7 calendar days if they are detained.)

If the applicant has immigration leave and makes an application for administrative review within the time limit they will continue to have immigration leave until the administrative review is determined, or they withdraw their application.

People who made an in country Tier 4 application before 20 October 2014, or a Tiers 1, 2 or 5 application before 2 March 2015 cannot request an administrative review. They may be able to appeal if their application is refused. The decision letter will tell them whether or not they have a right of appeal.

If a person makes an administrative review application and then makes a new application for entry clearance, leave to enter or leave to remain, the administrative review application will be treated as withdrawn.

If a person makes a new application for entry clearance, leave to enter or leave to remain and then makes an administrative review application in respect of a previous decision, the administrative review application will be rejected.

If the administrative review is unsuccessful it will mean the decision taken on the original application was correct. The applicant must not remain in the UK after they receive the administrative review decision if they do not have immigration leave.

If an Immigration Health Charge(IHC) has been paid and the application was refused with a right of administrative review, the IHC will not be refunded during the period when an:

  • in time administrative review may be made
  • administrative review is under consideration

If an IHC has been paid and the application was approved, but for a shorter period than applied for, the IHC will be refunded for the years of leave which were not granted. If the migrant makes an administrative review application and is granted an extra period of leave as a result, they must then pay the extra IHC.

The Guidance also provides further  detailed clarifications as regards the following:

-Border administrative review;

-Overseas administrative review

 RECONSIDERATION REQUESTS  OF HUMAN RIGHTS OR PROTECTION BASED  CLAIMS  BEFORE 6 APRIL 2015- NO  RIGHT OF APPEAL  UPON  REFUSAL

The relevant home office policy Guidance is “Requests for reconsiderations of human rights or protection based claims refused without right of appeal before 6 April 2015 Version 1”.

 This guidance replaces the Requests for removal decisions guidance. It follows changes to appeals and removals introduced by the Immigration Act 2014.  It replaces the ‘Requests for removal decisions’ guidance which applied before 6 April 2015. Previously the Home Office would make a removal decision on request where a person met the criteria outlined in the ‘Requests for removal decisions’ guidance. This would trigger a right of appeal, subject to certification.

Following legal changes to appeals and removals from 6 April 2015, when the Immigration Act 2014 was fully commenced, there is no longer a specific removal decision, or right of appeal against removal. A right of appeal derives directly from the refusal of a protection or human rights claim or the revocation of protection status.

Where the home office receive a written request to reconsider a refusal decision (or to make a removal decision) from, or on behalf of, an applicant who previously made an application for leave to remain which was refused with no right of appeal, the home office will apply the new Guidance  which  applies to refusals made before 6 April 2015. This guidance does not apply where a protection or human rights claim was not made.

The guidance only applies if a person previously made a valid protection or human rights claim which:

-would attract a right of appeal (subject to certification) if decided under the law as it applies from 6 April 2015

and

– because the person had no leave to enter or remain in the UK when the claim was refused, did not attract a right of appeal under the law which applied before 6 April 2015.

In addition, the guidance only applies if the person:

  • -did not receive a removal decision when the application for leave to remain was refused or subsequently
  • -failed to leave the UK voluntarily, and
  • – has requested that a reconsideration (or removal decision) be made via:
  • -a written request, either from the person, their legal rep or their MP
  • -a judicial review (JR),
  • -a pre-action protocol (PAP) letter

The home office will normally only agree to reconsideration when requested in the following cases:

-the refused application for leave to remain included a dependent child under 18 who had been resident in the UK for three years or more at the time of application;

  • – the applicant has a dependent child under the age of 18 who is a British citizen;
  • – the applicant is being supported by the Home Office or has provided evidence of being supported by a local authority in accordance with a duty in legislation ;
  • -there are exceptional and compelling reasons to reconsider the decision at this time, or
  • – it is operationally expedient or appropriate to reconsider the decision

If one or more of the criteria for reconsideration on request are met the home office caseworker   should write to the applicant offering reconsideration. In addition to the RED.0002 (uncharged version) the home office should enclose the bio data form and the RED.0003 (statement of additional grounds) for the applicant to complete and return.

On receipt of the completed RED.0003 and bio data forms and any other required documents   the home office should first review the initial decision to refuse leave to remain on protection or human rights grounds and consider if the decision should be maintained.

If the home office decide that the original refusal decision was correct, or that the decision was incorrect but that it is still appropriate to refuse on other grounds, a new refusal decision should be made. The home office caseworker should consider all the available information to determine whether it is appropriate to certify the claim.

If it is now appropriate to grant leave, a decision should be made to that effect.

The decision should be made and should, whenever possible, be made and served within three months of the date that the returned RED.0003 form and accompanying documents were received by the Home Office.

If the criteria for a reconsideration on request are not met the home office caseworker should write to the applicant explaining this. They may make a further application by the appropriate route, accompanied by the correct fee if applicable. Refusal of an application or claim made on human rights or protection grounds will attract a right of appeal according to the provisions in force at the date of decision. Appeal rights may be subject to certification if appropriate.

A person in this situation (ie who made a human rights claim which was previously refused without a right of appeal but which would have attracted a right of appeal if it was made under the law as it applies from 6 April 2015) will not be subject to enforced removal without having received an appealable decision (subject to certification) subsequent to that refusal.

However, where the criteria for a reconsideration on request are not met and the person does not make a further application or claim by the appropriate route, the timing of any reconsideration of a previous refusal will be at the discretion of the Secretary of State, taking into account factors such as the imminence of removal.

If reconsideration is not applicable the home office caseworker should write to the applicant explaining this and enclosing form RED.0002 (charged).

The person may make a further application by the appropriate route, accompanied by the correct fee if applicable. Depending on the type of claim or application, this will attract an appeal or administrative review according to the provisions in force at the date of decision. Appeal rights may be subject to certification if appropriate.

Alternatively they will be notified of their liability to removal in the course of Home Office enforcement activity. This will not attract a right of appeal or administrative review.

JUDICIAL  REVIEW

 Judicial review is a legal challenge where a person  asks the High Court or Upper Tribunal to review the lawfulness of a decision, action or failure to act of a public body or government department.

It can only be used where there is no avenue of appeal or where all avenues of appeal have been exhausted. It is different from a statutory appeal because the court should not normally substitute what it thinks is the ‘correct’ decision, it will only decide if the decision made was lawful.

A person may be denied an in country right of appeal  following a certification  decision upon the claim  for example requiring a person to appeal  once they have left the UK. Such a decision can be challenged   by way of judicial review.

The majority of immigration judicial reviews are heard by the Immigration and Asylum Chamber of the Upper Tribunal.

The Upper Tribunal procedure for judicial review is set out in the Tribunal Procedure (First Tier Tribunal) (Immigration and Asylum Chamber) Rules October 2014 Immigration and Asylum Chamber tribunal procedure rules – Publications – Gov.uk).

The exceptions, which will be heard in the High Court, are:

  •  the validity of legislation or the Immigration Rules
  •  the lawfulness of detention
  •  licensed sponsor status
  •  citizenship
  •  accommodation centres and asylum support
  •  previous Upper Tribunal decisions
  •  special Immigration Appeals Commission decisions
  •  statements of incompatibility under s4 of the Human Rights Act 1998

The High Court’s procedure for judicial review is set out in part 54 of the Civil Procedure Rules Part 54 – Judicial Review & Statutory Review – Civil Procedure Rules

The judicial review process is complicated; unless one is familiar with the process, this   requires specialist legal advice and assistance.

Relevant Home office Guidance is :

  • Judicial Review Guidance (Part 1) , Version 3.0
  • Enforcement instructions and guidance: Chapter 60 – Judicial reviews and injunctions

Whether applying for  permission to bring  a judicial review claim in the High  Court or Upper Tribunal, the claim must be brought  promptly and in any event not later than 3months from the date of the  decision, action or omission to which  the application relates.

Currently the fee for commencing a claim for judicial review is £140.00.

The applicable fees will further increase during proceedings depending upon whether permission for judicial review has been granted or where refused, a renewal application needs to be made.

Although in some cases, a judicial review claim may need to be commenced, in practice in comparison to the other avenues of challenge, a judicial claim is costly, complex and sometimes the proceedings can be quite lengthy.

 APPROACHING A MEMBER OF PARLIAMENT-  MP

Some applicants contact their local MP for assistance in relation to resolving their  immigration status.

MPs’ contact details can be found on the UK Parliament website- www.parliament.uk.

The relevant  Home office Enforcement Instruction Guidance is – “Chapter 59 – Members of Parliament (MP’s) representations”.

Where an MP considers that new and compelling information has emerged, they may contact the Home Office or the Minister’s Private Office directly.

Where there are no  removal directions in place, written representations from MPs’ are received by the Home Office either directly or via the core Home Office. They are scanned onto the correspondence tracking system and allocated to the appropriate unit dealing with the case to reply.

Where an MP chooses to contact the Minister’s Private Office directly and removal directions are in place for removal within the next 5 days, a decision on removal will be taken by the Minister’s Private Office only after consultation with OSCU. OSCU will consider whether the information provided by the MP is both new and compelling.

In those urgent cases referred to above, OSCU will deal with any written representations in one of two ways:

  • by drafting a reply for the Minister;
  • or in cases which do not require Ministerial sign off
  • by sending an official reply.

In either event OSCU will fax the local enforcement office a copy of the signed reply and inform them that removal directions can remain in place. If the Minister is unavailable to sign off a response prior to removal it is possible that removal directions will have to be deferred. In such cases it may be possible to keep the individual detained and arrange for a reply to be signed off as soon as the Minister becomes available. This would enable the removal directions to be reset without delay. In these circumstances OSCU will keep the local enforcement office apprised of the situation. Similarly, in those cases where it is considered that the information supplied by the MP is sufficiently compelling to justify deferring removal the local enforcement office will be informed by fax by OSCU.

In all cases where MPs’ representations are received and removal directions are in place for removal within the next 5 days all correspondence is required to be relayed through OSCU. The local enforcement office should not liaise directly with the Minister’s Private Office. If the Minister’s Private Office contacts the local enforcement office they are informed that they must first notify OSCU and OSCU will then notify the enforcement office.

If removal directions are set and MPs’ representations are received OSCU should advise the MPs Constituency Office immediately if it is considered appropriate to defer the removal. There are no specific timescales set for the deferral period as the nature of the representations and the individual circumstances of the case will dictate how long this should be. In practice, this will mean exchanges by fax between the local enforcement unit, OSCU and the MPs Constituency Office to enable the representations to be considered quickly.

Once a deportation order  has been signed, requests by an MP for deferral of removal will only be granted exceptionally and if there is new and compelling information which was not available at the time the order was signed. The circumstances of the case must be referred to Criminal Casework  Directorate  for consideration.

When the representations have been answered the MPs Constituency Office should also be advised if and when removal action will commence again. In cases where the representations do not necessitate the deferral of the removal the MPs Constituency Office should be advised immediately.

The House of Commons Briefing Paper, Number SN03186, 13 May 2015
Constituency casework: Asylum, Immigration and Nationality, provides:

“2. Dealing with constituency casework

2.1 Important warning about giving constituents advice

Many immigration, nationality and asylum enquiries come from constituents who really need professional legal advice.

 If in doubt, you should be careful to keep the information general rather than trying to suggest specific solutions for the individual case, and recommend that the constituent seek advice from a specialist solicitor or immigration adviser. This may seem unhelpful, but a constituent will be helped much more by correct professional advice.

The Library cannot try to be a substitute for professional legal advice, not least because it is a criminal offence for a person who is neither registered, authorised nor exempt to provide immigration or asylum advice or representation in the course of a business.4

The Office of the Immigration Services Commissioner (OISC) regulates immigration advisers. It investigates complaints and can prosecute those who operate illegally.

………….

2.3 Contacting Home Office officials on behalf of constituents

The Home Office has dedicated MP Account Managers to help Members of Parliament deal with immigration, asylum and nationality queries. The MP Account Managers can help deal with more complex enquiries and can work with your office on immigration issues. They also organise regular events for Members of Parliament and their caseworkers in Westminster and around the UK.

The Home Office’s preferred method of contact is either by telephone or email as this will usually provide a quicker response. It has several hotlines and dedicated post and email addresses for immigration, asylum and nationality enquiries from Members of Parliament and their staff. A current list of these and other hotlines is available on the Parliamentary intranet, but is available only to those with PDVN access

 ……………..

 2.4 Making representations to Government Ministers

The Secretary of State has a wide discretion when it comes to immigration and asylum matters, and in some aspects of nationality applications.

It is therefore always open to Members to raise cases with Ministers if they wish them to review the initial decision and/or step outside the rules to make a decision in the constituent’s favour. However, it is rare for a decision to depart entirely from the rules set out in the Immigration Rules and published policy documents – the most exceptional compassionate circumstances would usually have to be shown. This is because there is a concern that, should the published rules be departed from as a matter of routine, the rules-as-published would no longer bear any relation to the rules-as-implemented. Moreover, Ministers will not normally intervene in any way if an appeal is outstanding, and are unlikely to reverse a decision which has been through the independent appeals process unless new and compelling information has become available.9

Even though MPs and their staff may be allowed to provide immigration advice at Level 1 without OISC authorisation, the OISC advises considering whether doing so is in the best interests of the constituent, or whether it would be better to refer them to a more appropriate source of advice.7

 Members should not submit initial asylum applications or further submissions on behalf of a constituent, since these must be made by the applicant in person, although they can make representations about the handling of the case.10

The Home Office does not provide substantive replies to enquiries from Members of Devolved Legislatures on individual cases, since immigration is a reserved matter, but does provide substantive replies to general and policy-related queries. Enquiries about individual cases raised by Ministers of Devolved Legislatures in their ministerial capacity do receive substantive responses”. http://researchbriefings.files.parliament.uk/documents/SN03186/SN03186.pdf

In practice,  where removal  directions are in place and the home office state they are unlikely  to defer removal unless an injunction is obtained from either the Upper Tribunal or High Court,  then  commencing or pursuing judicial review action may be the most appropriate  course of action to undertake, where there are merits.

Further , where an applicant   has been provided a right of appeal  in –country,  rather than pursue MP representations alone, lodgement of  an appeal within the relevant time limits is  most appropriate.

HOME OFFICE COMPLAINTS PROCEDURE

The   current Home Office Guidance is “Complaints Management Guidance: version 7.

Guidance on how complaints are received, managed and resolved by UK Visas & Immigration, Immigration Enforcement & Border Force directorates of the Home Office”.

Applicants  have a right  to  complain to the home office.  The   complaint can be  about  the home office  service or professional conduct.  Complaints are not meant   to affect  home office  decision-making process and making a complaint is not supposed to   mean that  the application will be dealt with more quickly or more slowly.

Applicants  are required to set out their  complaint clearly and briefly, including dates and any reference numbers where possible, then email or send it to the home office as follows:

Email: complaints@homeoffice.gsi.gov.uk

Address:

Complaints Allocation Hub Central Point of Receipt 11th Floor Lunar House 40 Wellesley Road Croydon CR9 2BY

Alternatively a complainant    can download and printing the Home Office complaints form for UK Visas and Immigration.

If  the complaint is about an incident which is more than 3 months old, the home office  will only investigate if there are good reasons why the  applicant  could not complain earlier.

The home office’s stated  aim is  to give a full response within 20 working days. If a  complaint alleges serious professional misconduct by home office  staff or people working for  the home office,  it may take up to 12 weeks for a detailed, independent investigation to be completed.  The home office  may contact  a complainant  during an investigation for further information. If an applicant  does  not think  the  complaint has been dealt with correctly,  they  can ask the home office  to review the matter. The customer service unit will review whether  the complaint has been dealt with properly. It will tell  the complainant  its findings within 20 working days of the date when  the complainant asks for a review.

If  a complainant  is   not satisfied with the customer service unit’s response,  they can ask a UK MP to raise  their concern with the Parliamentary Ombudsman. If  the complainant is  a visa applicant outside the UK and they  have a sponsor in the UK, they  can ask their  sponsor to raise their case with their MP.  Before they contact an MP, the Parliamentary Ombudsman expects a complainant to have completed their  complaints process, unless there are exceptional reasons why  they have not done so.

If the complainant  can show that they  have suffered financial loss as a direct result of an error  the home office  have made,  the  home office  may be able to make  reimbursement of the costs  the complainant may  have incurred. The home office  will only consider reimbursing  for these costs if they were reasonable, unavoidable and a direct consequence of their actions – and  the complainant  will need to provide evidence such as original receipts.

In exceptional circumstances not involving financial loss, the home office  will consider whether a consolatory payment may be appropriate.

The home office complaints procedure does not  however replace  the relevant statutory appeal  that is in place where a refusal decision has been made and in country right of appeal has been  provided.   If no right of appeal has been provided,  it may be that  a reconsideration request, administrative request  or even a judicial review challenge may be more appropriate in order to seek to  obtain a positive outcome in regards to regularizing   immigration status.

MAKE A FRESH APPLICATION TO THE  HOME OFFICE

It may be that rather than pursuing a costly judicial review claim or any other types of requests out- with   the appeal process, a further strengthened new   home office application raising new facts and or evidence may be necessary. Of course, a new charged application would need to be made but where applicable, a fee exemption request can be made as regards either the NHS health surcharge or the home office application fee itself.

Exceptional Circumstances:

The Home Office Enforcement Instructions and Guidance “ Chapter 53 – exceptional circumstances” concerns further exceptional circumstances claiming that removal would be inappropriate.

A person without leave to remain, who claims that exceptional circumstances apply in their case such that they should not be removed, must put forward their claim by way of an application. An application for leave to remain on the basis of exceptional circumstances should be made, using the charged application form FLR(O) or FLR (FP) where a person is seeking to remain on the basis of family life or long residence. The requirement to make an application does not apply when the claim is raised:

  • – as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;
  • – where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention;
  • – in an appeal(subject to the consent of the Secretary of State where applicable)or
  • -As part of a further submission lodged in person after an asylum claim has been refused. Any further submissions must be considered in accordance with paragraph 353 of the Immigration Rules and the asylum instruction on ‘Further submissions’.

Where a decision pre dates 9 July 2012 and has therefore not considered Article 8 factors in line with the post 9 July 2012 family or private life rules, before enforcement action is taken, home office caseworkers are required to be aware that:

Full consideration must be given to any raised or implied human rights issues in the earlier application before any decision to remove is taken. Any consideration of human rights issues must be taken following guidance on asylum, family and private life, and in accordance with the Immigration Rules.

Whilst the previous decision may have been to refuse the application without a right of appeal, the individual may be entitled to an in-country right of appeal against any decision to remove them from the UK if that earlier application raised human rights issues.

Any decision to offer an in country right of appeal should be accompanied with a detailed reasons for removal letter setting out the issues considered and an IS151B.

Officers should look carefully at the earlier application and any other relevant exceptional factors before deciding whether it is appropriate to detain a person for removal.

In cases where it is not appropriate to serve an IS151B, officers should make sure that the IS151A part 2 is served along with the ICD2163 appeal form.

Where exceptional circumstances raised amount to an asylum, family or private life claim and have already been fully considered under the relevant rules and guidance,  the home office however  need not give further consideration if all the factors have been fully addressed. Where additional factors exist that have not been considered, for example, length of time spent in the UK for reasons beyond the migrant’s control, they must be considered in accordance with the factors outlined in paragraph 353B of the Immigration Rules.

Exceptional circumstances may also be considered in cases where an asylum claim has been refused, appeal rights have been exhausted and no further submissions exist, as part of the process of asylum caseworkers keeping their cases under review. In these cases paragraph 353B of the rules is to be applied.

A non exhaustive list of  relevant factors for consideration  are set out below:

(i) Character, conduct and associations including any previous criminal record and the nature of any offence of which the applicant has been convicted;

(ii) Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable ;

(iii) Length of time in the UK accrued for reasons beyond the migrant’s control after their human rights or asylum claim has been submitted or refused;

(iv) Any representations received on the person’s behalf .If having considered the factors,  removal is no longer considered appropriate then discretionary leave to remain should be granted by the Home Office.

CONCLUSION

Which ever avenue of challenge is taken advantage of, it  is relevant to consider  some  of the following issues:

  • whether that avenue   is indeed appropriate;
  • if only MP’s representations are pursued or only the complaints procedure is commenced, whether this will protect a person from removal whilst the issues are under consideration;
  • whether  the criteria for reconsideration requests is truly met as opposed to simply resort being had to these avenues in order to save the costs of a new stronger application with fresh new evidence;
  • Whether the avenue followed can reasonably lead to a conclusion that either leave to remain may be granted or an in- county right of appeal   given;
  • As such proceedings are costly, whether a judicial review claim is being commenced   because the case has some good prospects of success   and whether funds are in place to cater for effective continued progression of the case.

It  may be that in some cases, a new application  is simply  all that is required  to obtain  a  positive resolution to a case.

 

 

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