Appendix Vprovides the Immigration Rules for Visitors. Under this route you can visit the UK as a Standard Visitor for tourism, businessand other permitted activities for up to 6 months. Each visitor must meet the suitability, eligibility, and other requirements for a visit visa. If a relevant officer at the UKVI or decision makeris satisfied that all the suitability and relevant eligibility requirements under Appendix V: Immigration Rules for Visitors is satisfied, the application is likely to be granted, otherwise he/she will refuse your application for a visit visa with a brief ‘Reasons for Refusal’ or an immigration decision. At present there is no right of appeal or right to administrative review in relation to such an immigration decision or refusal of a visit visa application.
Right of Appeal:
From 25 June 2013, there is no right of appeal against the refusal of a family visit visa application, unless the appeal is on human rights or race discrimination grounds. Section 52 of the Crime and Courts Act 2013 abolished the full right of appeal in family visitor visa cases. This changes were brought under the Crime and Courts Act 2013, which received royal assent on 25 April 2013.Section 52 (1) of the Crime and Courts Act 2013 amended section 88A of the Nationality, Immigration and Asylum Act 2002 (appeals against refusal of entry clearance) so that “there is no right of appeal against refusal of entry clearance in a family visitor case except on grounds alleging that the decision shows unlawful discrimination or is unlawful under Section 6 of the Human Rights Act 1998.” Please see Mostafa (Article 8 in entry clearance)  UKUT 112.
Further, there are practical difficulties and limitation of an appeal under the human rights grounds, and the success rate is poor. In Charles (human rights appeal: scope)  UKUT 89 (IAC) the Upper Tribunal held that: “The basic limitation of a human rights appeal is that it can be determined only through the provisions of the ECHR; usually Article 8. A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State’s decision-making under the Immigration Acts, including the immigration rules, unless that person’s circumstances are such as to engage Article 8(2).
Before this changes against refusal of entry clearance in a family visitor, the right of appeal was being used by applicants to submit further information to support their claim, instead of making a fresh application.Under the new system, anyone refused a visit visa may re-apply and can provide additional information in support of their application.
In practice, under the new system, once your application for a visit visa to the UK is refused, it is likely that any future or subsequent visit visa applicationsis likely to be refused unless the circumstances of your application change because the UKVI consider each application on their individual merits. This means unless you can provide substantial documentary evidence to address the ECO’s concerns that was raised to refuse a previous visit visa application, it is unlikely that subsequent visa application be successful.
In brief judicial review is a court procedure, and is a way of challenging the decisions, acts and/or omission of a public body, such as, local authority, government departments and Home Office/ UKVI. The judicial review is not concerned with the merit of a decision but whether or not it was lawfully made. The Administrative Court and the Upper Tribunal ‘review’ the relevant decisions being challenged and decide if it is arguable that the decision is legally flawed; for example, a decision to detain or remove an individual from the UK, failed to exercise discretion, deprive a person citizenship or delay in making a decision or refusal of visit visa application there is no right of appeal or right to admirative review in relation to such an immigration decision. In relation to exercise of a power under the laws or acts of Parliament, the Court established the following principles: exercised power must be reasonable; exercise the power for the purpose for which it was provided, require to take relevant facts into consideration and exercise the power in conformity with the Human Rights and Equality Acts, otherwise the action will be ultra vires or not in accordance with the law. Judicial Review claims can only be proceeded on grounds involving an unlawful decision, procedural impropriety, unfairness, and unreasonableness and it should be kept in mind that claiming Judicial Review is a last resort.
It follows that where there is no right of appeal or administrative review against an immigration decision, as an alternative, you may challenge the decision by way of Judicial Review before the Upper Tribunal (UT) within 3 months from the date of the decision.
As per the procedure to bring a Judicial Review proceeding before the UT, the followingsare import to note:
*Khaled Noor is a Barrister-at-Law (N/P) and Solicitor. He is the Principal solicitor at Blackstones Solicitors specialising in immigration& human rights, family and commercial property laws.
For further information and advice on Judicial Reviewor advice and assistance on any other immigration matters, please make an appoitment. To make an appoitment, please call on: 020 7791 1718 or e-mail: Noor@blackstonessolicitors.com
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