More Changes to the UK Immigration Rules – Families be Aware!!

 

What are the changes?

It is now proposed that if you intend to make an application to visit a family member in the UK that you will not be able to appeal the decision of the British Embassy or High Commission. 

The first part of the proposal is that from July 2012 your right of appeal will be removed if the family member that you want to visit is a:

 

1. Cousin

2. Uncle

3. Aunt

4. Niece

5. Nephew

 

Further, from July 2012 you will only have a right of appeal if your family member in the UK is either:

 

1. A British Citizen.

2. Has Indefinite Leave to Remain (permanent residence).

3. Has refugee status.

4. Has been granted Humanitarian Protection.

 

It is then proposed that in 2014 your appeal rights will be removed if you are visiting any family member in the UK.

The Governments solution is that if you are refused then you have to make a new application.  The reason – austerity!  By removing appeal rights the Government hope to save “tens of millions of pounds” through reducing the number of appeals that are currently heard by Immigration Tribunals.  The UK Border Agency cite the fact that the number of appeals being heard in the Tribunal has exceeded what they predicted would be the case, with the number of appeals being approximately 50,000 – more than the 20,000 that were predicted.

 

Our Opinion

We do wonder that if there are too many appeals in the system surely the UK Border Agency should tackle the cause of that problem rather than instead seek to restrict the rights and safeguards that exist within the system for applicants.  We would urge the UK Border Agency to look at some of the poor decision making that takes place at Embassies and High Commission’s around the world and to ensure that more investment is being made to properly train their staff.  Where a poor decision is made, the right of appeal to the Tribunal is an important and useful remedy, so that the various issues can be aired before an Immigration Judge, and a proper conclusion reached as to whether the appeal should be allowed or not.

It is noteworthy that in the UK Border Agency’s news release, no information is given on what proportion of family visitor appeals were successful.  At Paragon Law, for example, we successfully overturn over 90% of Entry Clearance Officer’s decisions if we take the case to an appeal and this percentage rises where Paragon Law are involved in the preparation of the initial application.  If there was a suggestion that the system was being abused by applicants, who were pursuing appeals with no merit, then we would have expected the UK Border Agency to give some evidence of this. The proposal however by the UK Border Agency is that where an application is refused, the applicant should apply again. That will entail the costs of making a fresh application which the Applicant will have to bear even if the refusal of the application is the fault of the UKBA rather than the Applicant’s. Further, there will be even less incentive for Entry Clearance Officers to make good decisions if there is no independent Tribunal having the opportunity to review such decisions.

One of the requirements of a visit visa is that a person shows a genuine intention to return to their country following the visit. This is a difficult criteria to assess on the basis of documentation alone, and the UK Border Agency are increasingly relying upon documentation and not interviews when processing Entry Clearance applications. By removing the right of appeal, the ability of applicants and sponsors to give oral evidence at Tribunal hearings will also be removed.

Finally, whilst the UK Border Agency say that this approach will reduce costs, that does not seem to take account the additional costs that will be incurred as a result of the fact that the only judicial remedy for a refused application will now be Judicial Review. Judicial Reviews involve proceedings before High Court judges, and the costs of the legal parties and the Courts in such applications are significantly greater than in the Tribunal. There will be an enormous scope to challenge refusals by way of Judicial Review, and if appeals of refused visitor’s applications account for 40% of appeals in the Tribunal system, then the burden that will be imposed on the Administrative Court in processing the Judicial Reviews of refusals is likely to be enormous, adding to the concerns that already exist about their ability to cope with the level of work before them.

 

Our Advice to Readers

The prospects of success are going to greatly increase if there is proper preparation.  This is preparation of the documentary evidence that will support your application at the Embassy or High Commission which shows:

1. That you have a genuine intention to return to your country of origin.

2. That where circumstances allow there are good reasons as to why you are visiting the family member in the UK (for example a wedding or other celebration).

3. That you will be able to fund the cost of your trip and your stay.

4. That there will be adequate arrangements for your accommodation.

 

Once appeal rights are removed it will become even more difficult for a second or third application to be successful.  We have noted a consistent pattern of Entry Clearance Officers being inclined to not see a second application any different from the colleague who made the decision on the first application.  With appeal rights being removed your first application has to be the best application.

If you have any doubts, concerns or need the assistance of a legal representative to help with the preparation of your application then seek advice sooner rather than later.

If you want our assistance then click here.