IMMIGRATION ACT 2014
One Immigration will be running a series of Article on the impact of the Immigration Act. Some parts of the act are already in force and other parts will commence shortly. It is a fundamental charge (I Know Immigration Advisors keep saying that every time – seems like every month – there is a change but it really is.
STUDENTS are the first casualties of the government’s new immigration legislation which seeks to restrict even further the rights of immigrants in the United Kingdom.
Changes to Immigration Rules – Removal of Appeal Rights
The Immigration Rules have from 20/10/14 been amended to remove appeal rights for Tier 4 applicants as the first group of people whom the government wishes to target under the Immigration Act 2014 Removal of Appeal Rights. Section 15 of the 2014 Act Rights of Appeal To The First Tier Tribunal; amends the current appeals regime, changing both the types of decisions which can be appealed as well as the grounds of appeal which are available to appellants. The new appeals regime comes into force for students today but will eventually be extended to cover other categories of applicants and will progressively remove appeal rights from all applicants who do not raise a human rights or protection claim as part of their application to enter or remain in the UK.
The changes to the Immigration Rules have been introduced through a ‘Statement of Changes’ which should normally be available at least 21 days in advance of the changes being made but in this case the Home Office published the ‘Statement of Changes’ on Thursday 16 October 2014 with the intention of bringing in at least some of the changes on Monday 20 October 2014. Whilst expressing regret that the usual notice could not be given, the Home Office stated that it was necessary to change the Immigration Rules to coincide with the changes being made by section 15 of the 2014 Act which comes into force for some applicants on the same day. It is noteworthy that a similarly reduced notice period has been given for the commencement of section 15. The Home Office say that the reason for the reduced notice period is to prevent a surge in early applications by Tier 4 applicants wanting to preserve their right of appeal which the Home Office think can be used as a means of delaying departure from the United Kingdom because appeals can take several months to conclude. However, the Home Office have done the same previously and it is a way of them denying migrants their rights. It is clear that the Home Office have behaved unreasonably in the way the changes have been introduced without giving the proper notice in order to allow those applicants who are affected by the changes to preserve their legal position and many students will find themselves in a difficult position if their application is refused.
The changes apply to new Tier 4 applications for further leave to remain submitted on or after 20 October 2014 (including applications to remain as the partner or child of a Tier 4 migrant) and mean that if the application is refused, there will no longer be a right of appeal to an independent Immigration Judge to hear the case. The right to an appeal has been replaced by a right to request an Administrative Review of the decision.
New Administrative Review Procedure
This is a procedure whereby an applicant can request that the Home Office review their own decision if it is considered there has been a ‘case-working error’. There is a timeframe of 14 days to request a Review, a fee of £80.00 to be paid and a specific procedure to follow. The timeframe is shorter for applicants who are detained (7 days).
There is a complete list of ‘case working errors’ identified by the Home Office:
- Where the original decision maker applied the wrong Immigration Rules;
- Where the original decision maker applied the Immigration Rules incorrectly;
- Where the original decision maker incorrectly added up the points to be awarded under the Immigration Rules;
- Where there has been an error in calculating the correct period of immigration leave either held or to be granted;
- Where the original decision maker has not considered all the evidence that was submitted;
- Where the original decision maker has considered some or all of the evidence submitted incorrectly;
- Where the Immigration Rules provide for the original decision maker to consider the credibility of the applicant in deciding the application and the original decision maker has reached an unreasonable decision on the credibility of the applicant;
- Where the original decision maker’s decision to refuse an application on the basis that the supporting documents were not genuine was incorrect;
- Where the original decision maker’s decision to refuse an application on the basis that the supporting documents did not meet the requirements of the Immigration Rules is incorrect;
- Where the original decision maker has incorrectly refused an application on the basis that it was made more than 28 days after leave expired; and
- Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.”
What this means for Tier 4 applicants?
The new procedure of Administrative Review is clearly less favourable for applicants as the Home Office are reviewing their own decisions and so lack the independence an Immigration Judge would have, particularly in relation to errors calling into question the judgement of the case-worker. No new evidence can be presented in the Review unless it demonstrates that an error has been made. Even where an applicant is successful in persuading the Home Office that a case-working error has been made, it will not necessarily mean that the decision is withdrawn and remade. It is possible that the Home Office may maintain the decision but withdraw one or more reasons given for the decision or even rely on new or additional reasons to maintain the decision.
No removal whilst an administrative review is pending but the review process cannot be used to change the nature of the original application, for example to a human rights or protection claim.
Where the Administrative Review process is unsuccessful, the only remaining option for applicants still wanting to challenge the Home Office decision will be a Judicial Review claim in the High Court/Upper Tribunal. All of this makes it clear that it is now even more important that applications are properly drafted and supported by evidence from the beginning than previously and where appropriate include well-substantiated human rights claims. Where a legitimate human rights claim can be raised, it should mean that a refusal of the application will give rise to a right of appeal before an Immigration Judge. Good legal advice from the outset of the case is therefore even more vital than it was before to make sure that all positive points in the case can be put forward and all documents necessary to support the application are included. Even where no human rights claim can be made, a properly drafted application may mean that a successful application for Administrative Review can be made. A good legal representative will be able to identify the errors made from the limited list provided by the Home Office and try to ensure that the whole decision is withdrawn and not simply some of the bad reasons. It is therefore important for applicants to seek legal advice as soon as a refusal decision is received to preserve their legal position.
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