Immigration Appeals gone for most applications
Immigration Appeals severely restrictedFrom 6 April 2015, legislative changes have restricted the ri ...
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Evidential flexibility now in Immigration Rules!
Good news for people applying under the Points Based System (including Tier 1 General, Tier 1 entrep ...
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Immigration Appeals gone for most applications

Immigration Appeals severely restricted

From 6 April 2015, legislative changes have restricted the right of appeal of individuals against numerous different types of immigration decisions. We don't seek to provide a detailed review of the changes here as they are too complicated for the scope of a short article. We note, however, that in terms of in-country applications to extend leave to remain (that includes common categories such as Tier 1, Tier 2, spousal visas and settlement applications including long residence) there is no longer a right of appeal under the immigration rules against applications made after this date.

Unless human rights issues are raised, refusals of most of these applications will now cause those refused to be offered an application for administrative review to the Home Office. Applicants' leave to remain is extended during this process but if the review is refused then their only recourse is to lodge a Judicial Review with the Upper Tribunal of the Immigration Chamber. Applicants' leave to remain is not extended during this process and this can be a much harder forum in which to challenge a decision. Previously with appeals, inidviduals could appeal on the basis that a decision was not in accordance with the Immigration Rules and if a Judge agreed with their arguments, on the balance of probabilities, they would be successful. A Judicial Review requires an applicant to show that the Home Office decision is irrational or unreasonable and this is a much harder thing to show.

This has left the position for someone who is refused leave to remain, and feels the decision is incorrect or unfair, often in a very complicated and tricky situation. For example, we have had a client who have received a refusal of a spousal application for leave to remain on maintenance grounds. On reviewing the decision it seems clear that an error has been made by the decision maker. The inidivduals have a right of appeal to the Tribunal on human rights grounds but cannot appeal under the Immigration Rules. Whilst they must lodge this appeal to maintain their legal stay in the UK, they are unlikely to get their spousal visa extended through the appeal route even if the Judge at a hearing finds the decision is incorrect. Because they have an appeal they have not been given an administrative review. They did also lodge a pre-action protocol threatening to take Judicial Review action but the Home Office Legal Department have refused to consider this because of the fact that they have a right of appeal. They could re-apply and hope that the Home Office would not repeat the error but would have to be in the UK illegally during any re-application processing time. They have now gone to their MP to try and get the matter resolved and the MP is proving helpful and we are hopeful that it will be resolved shortly. This is an example, however, of how many people are falling foul of the new provisions and finding themselves with no way of effectively challenging incorrect decisions.

Please contact us if you have received a refusal decision and would like to know what your options are.

Adam Reid
January 2016

ILR applications – relaxed UK absence limits.

Until December 2012, those applying for Indefinite leave to remain (ILR) on account of 5 years residence in the UK as a work permit holder, Tier 1 or Tier 2 General holder would have to show that they had had less than 6 months absences from the UK during their 5 years residence unless there were compelling circumstances.

This rule led to a lot of uncertainty for applicants and seemed also to lead to inconsistent decision-making (see my article below). Fortunately, some degree of sense has been brought to this part of the Rules. From 13 December 2012, the UKBA relaxed the absence requirements for these categories among others, allowing for up to 6 months absences per year (each year will be counted back as a period of 12 months prior to the date of application).

This change is likely to come as a relief to many people to whom regularly leaving the UK on business trips is essential for their work. The change may also allow some people who were previously refused to re-apply under the new rules. It is worth noting that some categories such as Tier 2 require specified evidence that absences are work-related and/or in accordance with an applicant’s annual leave. It also remains to be seen how strict the UKBA will be in relation to absences from the UK of over 6 months.

The absence rules relating to long-residence applications (10 years continuous legal residence) have not changed. Those applying under this rule must show that they have not been out of the UK for more than 18 months in total or 6 months continuously during the 10-year period.

If you have any questions about these changes in the rules or would like us to take care of your 5 or 10-year ILR application please contact us and we would be happy to let you know how we can help.

Adam Reid
18 April 2013

success stories

Tier 1 and Tier 2 Appeal and Judicial Review Victories
The Home Office have been interpreting the Tier 1 and Tier 2 requirements very strictly.

We have had great success in winning many appeals and Judicial Reviews against Tier 1 and Tier 2 refusals.
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Entry Clearance Appeals
Decisions of Embassies and BHCs overseas sometimes fail to fairly consider an individuals case. Refusals over the last few months have often been on maintenance grounds on the basis of minor issues with documents.

We have an excellent record of overturning unfair decisions made by Entry Clearance Posts.

See more details of our recent successes.
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