Following the recent enactment of the Immigration Act 2014 the government, among other things, has significantly curtailed the scope of grounds of appeal to the Tribunal from 17 to 4. In a long -running battle to maintain the independence of the Judiciary, particularly in the immigration and asylum jurisdiction, this move again reflects government's approach to these things, ie the enhancement of executive discretion over judicial oversight.
In reducing the grounds of appeal from 17 to 4, the government has introduced or reaffirmed 'administrative review' as the way going forward. The Act itself has not set out the specific framework for administrative review. However the Statement of Intent on Administrative Review sets out the intended scope and framework thus:
1. Individuals who will no longer have a right of appeal as a result of changes to the appeals system will have the option of administrative review.
2. Administrative review will only be available if the alleged error could have made a difference to the decision. It can be relied upon to resolve 'case-working errors' on a number of grounds similar to the old appeal grounds: Where it is alleged the Home Office has applied the wrong Immigration Rules; not applied the Immigration Rules correctly; has added up points to be awarded under the Immigration Rules incorrectly; there has been an error in calculating the correct period of immigration leave; has granted the wrong type of immigration leave; has not considered all the evidence that was submitted; a challenge is made to the exercise of discretion or where credibility is an issue, (the test on review would be only whether the original decision was unreasonable/perverse and not a new credibility decision); refused on the basis that the documents supporting the application did not meet the requirements of the Immigration Rules or were not genuine; has not applied the evidential flexibility policy correctly.
3. New evidence cannot be submitted. This mirrors the current appeal process for in-country Points Based System appeals. The only exception to this will be where the new evidence is relied upon to demonstrate that a previously submitted document is genuine or meets the requirements of the Immigration Rules.
4. Human rights claims or asylum claims cannot be pursued by way of Administrative Review.
5. There will be a charge of not more than £80, and this fee will be refunded where the decision is overturned.
6. The time limit will be 10 days from receipt of the refusal decision, or 2 days for those in detention. This mirrors the current time limits for appeals. The completed standard form for administrative review and payment must be received within the time limits to be eligible. The Home Office will have a service standard of 28 days to complete an administrative review. An individual will be permitted one administrative review except where, following an administrative review, the Home Office maintains its refusal on different grounds. There will be a further administrative review in relation to the new grounds.
7. It will not be possible to vary or make a new application (raising a new basis of stay other than the original basis of application) by way of administrative review.
8. Section 3C leave is maintained while the administrative review is outstanding and removal action cannot be taken except in limited circumstances. The Act had amended Section 3C 1971 Act to reflect this. Applicants will therefore retain their leave if the application and administrative review is lodged prior to expiration of leave and the time within which to raise administrative review.
9. People who currently have an in country right of appeal where they are refused leave to remain will continue to be able to have an administrative review in the UK. Where there is no in country right of appeal then administrative review will only be available from abroad. Those refused entry clearance and who will no longer have a right of appeal will rely on administrative review process from abroad.
While it is expected that there may be changes to this framework, such changes will be minor and so it is likely that this reflects the core of the process.
In this dispensation applicants are advised to seek legal assistance in the preparation and submission of applications in the first instance as there will be very narrow margin for error. The new process has little or no margin for error, as the consequence of getting it wrong can be irreversible. It is also important not to leave anything to the last minute, as that creates more hasty applications.
Legal representatives will require to exhibit a very pragmatic and thorough approach to applications and administrative review. An understanding of the interplay between the new administrative review process and appeal rights is very important.
Over the years, we at Drummond Miller have assisted thousands of applicants in advising, structuring, preparing and submitting applications on their behalf, as well as undertaking appeals. We have extensive experience in this area. We have also developed a clear approach to deal with the new changes. This will include ensuring that applicants' circumstances are fully maximized within the application stage to ensure that the correct balance is maintained in respect of achieving outright success at the application stage; achieving appeal rights; and effective and efficient administrative review if necessary. You can contact one of our members of staff to discuss your matters and provide you with proper advice and guidance.