IMMIGRATION and VISA REFUSALS
UK Immigration and Visa refusals can be a stressful and complex process for individuals seeking entry to the UK. In the event of a refusal, there are options available to challenge the decision, including Judicial Review, Appeal and Administrative Review.
Judicial review is the way in which one can challenge the lawfulness of a decision or action of the Home Office, or the Immigration Tribunal and have exhausted all available alternative remedies. Our immigration lawyers can advise you on the merits of applying for immigration judicial review and represent you in immigration judicial review proceedings.
What is Immigration Judicial Review?
Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action of the Home Office or the immigration tribunal. In a judicial review case the Judge will look at the way the Home Office or Immigration tribunal reached its decision rather than whether the decision was correct or wrong. In essence Judicial review allows you to challenge the process followed by the Home office or Immigration Tribunal.
Examples of Immigration Judicial Review Claims
The following are common examples of when an immigration judicial review claim may be appropriate:
• Your immigration application has been refused by the Home Office, you have no right of appeal to the First-tier Tribunal and you are not satisfied with the outcome of your Administrative Review application;
• Your asylum or human rights claim has been certified by the Home Office as clearly unfounded, meaning you have no right of appeal;
• You have made further submissions to the Home Office and these have been rejected as not amounting to a fresh claim, with no right of appeal;
• Your appeal to the First-tier Tribunal has been dismissed and your application for permission to appeal to the Upper Tribunal has been refused by both the First-tier Tribunal and the Upper Tribunal, but you still believe that the decision on your immigration application contains an error of law;
• You wish to challenge the lawfulness of your detention;
• You wish to challenge an imminent removal or deportation.
Grounds for Immigration Judicial Review
There are three main grounds of immigration judicial review: illegality, procedural unfairness, and irrationality.
• Illegality: the decision-maker did not have the legal power to make the decision;
• Procedural unfairness: the process leading to the decision was improper;
• Irrationality: the decision under challenge is so unreasonable that no reasonable person, acting reasonably, could have made it.
In addition, a decision of the Home Office or Immigration Tribunal can be challenged on the ground that the decision-maker acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998.
If a decision by the Home Office is found to be unlawful, unfair, irrational or contrary to human rights, then the decision will not be re-made by the Judge. Instead, it will go back to the Home Office for reconsideration.
It is important to note that immigration judicial review is not an appropriate legal procedure if you wish to argue that a decision of the Home Office or Immigration Tribunal is simply wrong, or if there is another avenue of appeal or review available.
At Advantage Solicitors, our immigration judicial review lawyers can advise on the most appropriate way to challenge a decision of the Home Office and, where appropriate, draft grounds for judicial review.
If your application is refused, your options may be to either appeal that decision or make another application with further supporting evidence. The Immigration Act 2014 has had a significant impact on the right of appeal if your application has been refused.
Your appeal rights may therefore be limited and it is advised that applicants seek specialist UK immigration advice from a qualified UK immigration solicitor.
Depending on the type of application that you have submitted, you will normally have one of the following options to challenge this decision:
• The decision to refuse your application may provide you with a right of appeal to the First Tier Tribunal. You will initially need to submit your notice of appeal with full grounds and specified fee. After submission of your appeal you will be notified by the Tribunal of your hearing date. It is vital that your matter is properly prepared, with witness statements and relevant supporting documents that you wish to rely upon in Court. You may be expected to provide oral evidence in court and will be cross examined on the day by a representative of the Home Office.
• If your application before the First Tier Tribunal is refused it may be possible to appeal against this decision to the Upper Tribunal but only on the basis that there has been an error of law.
The rules in relation to appeals can be complex and it vital to ensure that you obtain professional advice urgently if you receive a refusal in order to protect your appeal rights.
At Advantage Solicitors our qualified lawyers assist with all appeal matters, from entry clearance refusals, extension refusals and administrative review. If, however your application is refused without the right of appeal we can assist by way of Judicial Review.
At Advantage Solicitors we are experts at challenging the Home Office through Judicial Review. Our team of immigration solicitors are highly experienced with making Judicial Review claims against the UK Home Office.
Administrative review is a process where an applicant can challenge a Home Office immigration decision on the ground that it is wrong because it contains one or more case working errors. Not all Home Office decisions can be challenged by way of administrative review.
Administrative review is only available when an eligible decision has been made. The only ground for administrative review is that the Home Office has made a case working error, as defined in the Immigration Rules.
Following an application for administrative review, the Home Office will review its decision and, if it agrees that a relevant case working error has been made they will correct it.
What Is a Case Working Error?
Administrative review will only consider the following claimed case working errors:
• The Home Office’s decision to refuse or cancel entry clearance or leave to enter or remain based on alleged false representations, false documents or information, failure to disclose material facts or previous breach of conditions was incorrect;
• The Home Office’s decision to refuse an application on the basis that the date of application was beyond a time limit in the Immigration Rules was incorrect;
• The Home Office’s decision not to request specified documents (for example, under the points-based system evidential flexibility rules) was incorrect;
• The Home Office decision maker applied the wrong Immigration Rules or otherwise incorrectly applied the Immigration Rules (for example, by failing to consider some or all of the evidence submitted properly);
• The Home Office decision maker failed to apply relevant published policy and guidance in relation to the application (for example, when assessing the credibility or genuineness of the application);
• The Home Office decision maker made an error in calculating the correct period or conditions of immigration leave.
It is possible to apply for administrative review either because the alleged error could have made a difference to the decision or because the alleged error could unfairly impact on a future application (i.e. because a future application may now be refused on general suitability grounds).
What are the likely outcomes of Administrative Review?
There are 4 possible outcomes following an application for administrative review:
• The Home Office agrees the decision challenged contains a casework error and decision is withdrawn;
• The Home Office does not agree the decision being challenged contains a casework error, the decision remains in force and all reasons given for the decision are maintained;
• The Home Office does not agree that the decision under challenge contains a casework error, the decision remains in force, but one or more reasons given for the decision are withdrawn;
• The Home Office does not agree that the decision under challenge contains a casework error, the decision remains in force, but with different or additional reasons to those given in the decision under review.