Following the Immigration Act 2014 changes, there are no right of an appeal following the refusal of a UK Standard Visitor Visa. The following are options available:
Re-apply for the UK Standard Visit Visa following the refusal.
Limited right to appeal may still be generated depending on the impact it has to the applicant's human rights impact as well as to the sponsor.
Judicial Review process.
Complete our visa assessment form, by clicking here. ICS Legal have dealt with hundreds of UKBA and Entry Clearance refusals from all over the world, thus being experts in this area and familiar with case law that can be argued in your appeal. We have a high success rate in winning appeals. Over the years Immigration Judges have often commented at hearings and in Determinations on the scrupulous way in which our paperwork has been prepared. We are committed to working in partnership with our clients and delivering the highest standard of service one can expect.
Re-apply for the Standard Visitors Visa
If it works, the simplest way to deal with a visa refusal is to re-apply, submitting a new application form with new evidence for a Standard Visitors Visa and a new fee. But is it likely to work or is it a waste of time and money?
If the Standard Visitors Visa application was refused because insufficient evidence was submitted, for example bank statements or similar, then this should be quite easy to correct. It is far from unknown for a Entry Clearance Officer simply to ignore or overlook evidence that was actually submitted, though. Where this happens it is unfair to have to pay another fee and a letter to the Entry Clearance Manager asking for reconsideration is worth considering. There are some circumstances where it is clear that reconsideration or re-application is not likely to be available and a legal challenge will be needed instead.
Where the reason stated by the Entry Clearance Officer is that the Applicant is not a genuine visitor or does not have an intention to return, are some of the common grounds of visitors visa refusal. There are usually no extra documents that can be submitted to prove one’s case once these subjective intention issues arise. Some visa application posts are more reasonable and make better quality decisions than others. Some visa application posts are more reasonable and make better quality decisions than others. A re-application for a Standard Visitors Visa or reconsideration request is well worth considering at the latter post because someone might actually engage with the issues rather than merely mindlessly re-refusing. If reconsideration or re-application are not likely to work or have been tried and failed, it is time to consider legal action.
Right of appeal
As of July 2013 it is only possible to appeal to the Immigration Tribunal against refusal of a Standard Visitors Visa where the grounds of appeal are on human rights grounds. Whether or not the visit engages human rights considerations therefore determines whether there is a right of appeal.
The problem is that a person may attempt to appeal on human rights grounds but, many months later and after having paid appeal fees and legal costs, a Judge may decide the visit does not really raise human rights grounds and therefore there was no right of appeal in the first place. A lot of time, energy and money will have been wasted bringing the appeal, and the chance lost to challenge the refusal by other means such as an application for judicial review.
Appealing on a refusal of entry to the UK will depend whether you have obtained an entry clearance or not. The Entry Clearance Officer or the Immigration Officer must provide a detailed written refusal notice, explaining about their decision and whether you have appeal rights.
What might be the test for whether there are human rights grounds?
There are different ways the Tribunal might decide whether there is or is not a right of appeal.
Does the Applicant raise human rights grounds in the right of appeal? This would certainly be the simplest way forward, but it is unlikely the Tribunal would allow the Applicant themselves to decide whether there is a right of appeal.
Are human rights grounds ‘arguable’ or ‘properly arguable’ or is there a protected human right engaged by the circumstances of the visit or some similar test? One would hope this would be considered at an early stage in a quasi permission procedure. An early pre hearing review can at least be requested.
Experience suggests that the Tribunal does not engage with the issue of whether there is a right of appeal at an early stage, unfortunately, and it is only at the full hearing after many months that the issue can finally be argued.
Judicial Review process
Where there is no adequate alternative remedy, it is possible as a matter of last resort to make an application for judicial review of a decision. Where a visit visa refusal cannot be adequately challenged by way of a human rights appeal, an application for judicial review is therefore available as a potential remedy. Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. You can read more about the types of cases we have handled under our "case studies" page available on the homepage.
In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.
Without knowing how far human rights appeals might be possible in visit visa cases and in which cases, it is basically impossible to know whether an application for judicial review is even possible. It is possible to guess that the Upper Tribunal is unlikely to allow a judicial review application to proceed if there is a possibility of a human rights appeal, though. Settling that question may mean attempting an appeal and having to wait until the First-tier Tribunal makes a decision on whether there is a valid appeal. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way. If you want to argue that a decision was incorrect, judicial review may not be best for you and a reconsideration may be better. Call us today on 0207 237 3388 to get some initial advice.
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