Visit visa refusals – appeal or judicial review?
- Right of appeal
- Case of Mostafa
- Home Office guidance
- The powerful alternative: applying for judicial review
- Comparison of Options?
Have you recently been refused a UK visa or refused entry to the UK? If so you will now be facing a difficult legal dilemma. What do you do next? The options are all the more difficult to swallow since the removal of full rights of appeal for family visit visas as well as many other categories of visa.
Should you give up, re-apply, attempt a human rights appeal or should you explore an application for judicial review? Often it can feel hopeless faced with a refusal of a visa for what seems like no sensible reason. It is an unfortunate reality of the process that many applications for visas are refused on frivolous and unfounded grounds, with the embassy knowing that the majority of applicants cannot or will not appeal these decisions.
Depending on your particular circumstances there are a number of possible solutions. Each has it’s own criteria but once we know more about your circumstances we can advise you which of these options is right for you. The recent Immigration Appeals Tribunal case of Mostafa and the Home Office’s new guidance on human rights in visitor visa appeals has moved the goalposts further.
As of July 2013 it is only possible to appeal to the immigration tribunal against refusal of a visit 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 following are a summary of the options available.
The simplest way to deal with a visa refusal is to re-apply, submitting a new application form with new evidence and a new fee. But is it likely to work or is it a waste of time and money?
If the application was refused because insufficient evidence was submitted, for example bank statements or similar, then this can be corrected. We often review failed applications and advise and assist our clients on preparing and submitted fresh strong applications supported by better evidence and also strong and compelling representations based on the law from us.
However there will always be cases where making a fresh application is unlikely to have any prospects of success. These situations are too numerous to list here but the following are a few examples:
- where it is alleged that deception was used but there is a simple and convincing explanation
- where the applicant has a negative immigration history
- Where the evidence relied on was rejected as being from an inadequate or unverifiable source.
- Where the reason stated by the visa officer is that the applicant is not a genuine visitor or does not have an intention to return.
- where the reason for refusal states that the Entry Clearance Office is not satisfied that the applicant will return to their country at the end of the visit
It is a sad reality that some visa consideration offices appear to use these reasons all too often. It is no secret that the quality of decisions in Islamabad and Abu Dhabi and Istanbul are very poor, for example, whereas New York, Toronto and Sydney are far better.
Appealing on Human Rights Grounds
Whether you can appeal on human rights grounds depends on many factors and we will advise on these when we have assessed your reasons for refusal letter and personal circumstances. However; even if an appeal can be brought, there are other factors to consider.
Immigration appeals now (as at September 2017) are taking anything between 12 to 18 months to be listed for a hearing before a judge.
Also the problem is that a person may attempt to appeal on human rights grounds and a year 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.
Case of Mostafa
In the case of Mostafa (Article 8 in entry clearance)  UKUT 00112 (IAC) the Upper Tribunal considered this question of when human rights might be engaged in a visit visa case. The tribunal held that where a couple are married human rights are certainly engaged but expressed some scepticism whether human rights might be engaged in other, wider circumstances. Only family life relationships were considered, by the tribunal, though, not private life, and the tribunal also omitted to consider whether a different standard for engagement of human rights was relevant for a temporary visit as opposed to a settlement application.
Home Office guidance
The Home Office have published guidance for immigration officials on when human rights might be engaged in visit visa cases: Considering human rights claims in visit applications.
The guidance asks four questions:
- Does the application say that it is a human rights claim?
- Does the application amount to an implied human rights claim if it does not say that it is a human rights claim?
- Are the matters raised capable of engaging human rights?
- Does the human rights claim have any prospects of success?
The Home Office view is that refusal of visit visas will not generally raise human rights issues. It is only where the visit is between a spouse or other life partner or a parent and a minor child that the Home Office considers human rights might be engaged, and even then if visits can be conducted in another country then human rights are supposedly not engaged.
This is an excessively narrow view of human rights and it is not consistent with the law. You should not necessarily accept the Home Office interpretation on this topic. After all, we have challenged the Home Office thousands of times in court and by way of Judicial Reviews and the public would be surprised how often the courts rule against the Home Office and in favour of our clients.
Once we know more about your specific circumstances and refusal decision we can advise you whether your case fits as a human rights appeal.
The powerful alternative : applying for judicial review
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 reasons for refusal letter cannot be challenged on human rights grounds, an application for judicial review is a powerful potential remedy.
Judicial Review is a very complex and intricate area of law. It is far too detailed to go into here. But essentially it is based on ‘reasonableness’. An application for judicial review is made to the High Court and you are in effect asking a High Court Judge to decide whether the decision to refuse your visa by the Home Office was (or was not) reasonable?
One of the great wonders of the English legal system is that anybody can challenge any Government decision, by way of judicial review.
Once we gather more information about your circumstances we can advise you whether you have grounds for a judicial review application and if so, we can argue your case for you. However bear in mind that any judicial review application must be made within 90 days of the date of the original decision to refuse. It is therefore vital that you consult us as soon as possible after you receive your negative visa decision.
A comparison of the options in practice?
The following is a very simplified comparison of the difference between an appeal based on human rights and an application for judicial review. Both have their advantages and disadvantages:
|Appeal||Positives: Relatively cheap, almost no risk of having to pay costs of other side, can sometimes submit new evidence, the judge can make factual findings and the Immigration Judge will make their own decision on the case.
Negatives: Huge delays in waiting for appeals to be heard, risk that the Tribunal will decide that it was not a human rights appeal, risk that the delays will mean that time period for bringing a judicial review is missed
|Judicial review||Positives: Relatively more expensive than an appeal , risk of having to pay some of the costs of other side as well as your own legal costs if you lose, (can recover own costs if succeed though), there is always a chance that the Home Office may give in at an early stage.
Negatives: no new evidence can be submitted, judge restricted to reviewing lawfulness of decision on ‘reasonableness‘ and certain error of law grounds, judge will not make a decision if you succeed but rather send the matter back to the Home Office to decide again (although in practice this means that the Home Office will grant the application), application must be made within 90 days of refusal decision
To discuss your case with a specialist immigration solicitor or to book an appointment call 020 8401 7352 or email us at firstname.lastname@example.org