Erosion of appeal rights against immigration decisions
Following the removal of appeal rights for Tier 4 students in October 2014, the government has rolled out the provisions of the Immigration Act 2014 further to remove these for all Points-Based work investor and work immigration applications made from 2 March 2015.
The changes were announced with a lack of notice, typical where changes to the Immigration Rules are concerned. By giving just 2 working days’ notice, most potential applicants were realistically prevented from taking any effective action to seek to preserve their right of appeal by getting an application submitted quickly.
The changes however did give more notice of the further erosion of appeal rights by confirming which immigration categories would have their appeal rights axed next from 6 April 2015. Many categories, indeed more than was thought, have retained appeal rights including those cases which the Immigration Act said would i.e. applications making protection (asylum) and human rights claims but also spouse / partner and family member applications and long residence applications.
So what remedy do these applicants now have if they believe that the decision taken on their application is wrong? Instead of a right of appeal to an independent Tribunal, they can apply for an Administrative Review, conducted by the Home Office, that is the same body who made the original decision they wish to challenge.
Although the Home Office do say that a different team will review the decision, not unsurprisingly clients have expressed a lack of confidence about the independence and so the effectiveness of the Administrative Review process.
Where AR is not successful there is Judicial Review. However, the government is seeking to limit access to that further.
According to the Ministry of Justice’s Tribunals Statistics Quarterly 44% of the appeals that were determined in the First Tier Tribunal in 2013/14 were allowed. In addition, prior to being determined, 20% of appeals were withdrawn. This usually occurs when the Home Office withdraw a decision as unsustainable.
Where there is such a high rate of overturning initial decisions, surely the decisions themselves need to be better? A Home Office confident that it is getting decisions right should not be fearful of effective review. Given the political pressure to reduce immigration and continued criticism of the Home Office, getting it right the first time should be the priority.