Refusal rates for UK visas are high, and as an example approximately 50% of Tier 1 Entrepreneur initial and extension applications are refused. We receive many enquiries from applicants whose applications were refused and who now seek advice on what steps they should take next. The options depend on the visa type and reasons for refusal.
The procedure for challenging the refusal is either in the form of Appeal, Administrative Review or Judicial Review. The Appeal is a ‘court’ procedure where application needs to be submitted to an Immigration Tribunal/Court and will be decided by an immigration judge. Most visa types currently do not give the right of appeal. Rights of appeal exist against the following decisions:
- refusal of a human rights or protection claim and revocation of protection status - appeal rights are in Part 5 of the Nationality, Immigration and Asylum Act 2002 (the 2002 act)
- refusal of a visa and refusal to vary leave to remain, in some situations, where the application was made before the Immigration Act 2014 was in force
- refusal to issue a European Economic Area (EEA) family permit as well as certain other EEA decisions where appeal rights are in Regulation 36 of the Immigration (European Economic Area) Regulations 2016
- deprivation of citizenship whereby Section 40A of the British Nationality Act 1981 applies
Where there is no right of appeal, it is normally possible to apply for an Administrative Review of decision if a caseworking error has occurred. A caseworking error can be an incorrect interpretation of the immigration law by the Home Office or wrong interpretation of the facts/documents submitted for the application. Administrative Review decisions are made by another Home Office Officer not by Tribunal/Court.
If an Administrative Review is unsuccessful or visa refusal does not give the right to Appeal or Administrative Review, the applicants can consider challenge by Judicial Review. Judicial Review is a judicial process available when all other options to challenge the decision have been already exhausted. Judicial Review process is complex and costly and can be made only on the following grounds: illegality (Decision-makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act is “illegal”), irrationality (Courts may also intervene to quash a decision if they consider it to be so unreasonable as to constitute ‘irrationality’ or ‘perversity’ on the part of the decision maker.) or procedural unfairness (Fairness requires that a public body should never act so unfairly that it amounts to an abuse of power).
Reasons for the refusal must be considered in detail to establish prospects of success for the challenge. Depending on the prospect of success, costs and time involved, it may be more appropriate to submit a new visa application instead of challenging the refusal. This approach is frequently taken in visitor visa applications and in business immigration matters (Tier 2 and Tier 1 visas). It is crucial that applicants whose visas are refused act promptly as time limits for submitting Appeal, Administrative Review and Judicial Review applications are strictly prescribed and in many cases applicants have only 14 days to challenge the decision or submit a fresh application.
Meet the team
Andrew Firman is a partner in our corporate & commercial team. His employment practice covers both contentious and non-contentious work for both employers and employees. His corporate and banking practice concentrates on contractual and advice work given mainly to SMEs and charities. Additionally, he advises both individuals and businesses on a range of immigration matters.
In his work, Andrew looks for proactive and pragmatic solutions derived from a proper understanding of the client’s perspective and against the background of the commercial constraints.
Career highlights include
- running a David v Goliath style battle for a former employee of a US based bank related to the late vesting of share options following that employee’s termination at a time when the US markets were in freefall
- negotiating, finalising and drawing down for an off-shore SPV borrower at £310M facility to buy a group of companies which owned, as an investment, the London HQ of a multinational corporation
More recently, Andrew has advised upon
- the sale of a leading clinician–led healthcare consulting and IT services group to a global technology and services company specialising in the healthcare field
- the restructuring and relocation of a nutritional supplements business within the UK
- settlement of a long running shareholders dispute concerning a company running a niche members’ gym in a close knit area of London
- finalisation of the UK legal aspects to a cross border merger with an Italian company
- the negotiation of departure terms for the CEO of a leading interdealer broker
Andrew has over the years enjoyed advising many owner-managed SMEs on the range of their needs for commercial, employment and dispute related legal advice. He is delighted that the firm has recently received recognition through the award by Acquisitions International of “UK Most Trusted Law Firm of the Year to SMEs 2013” because it goes to the depth of the relationships the firm has with its clients and its target market in terms of size of business clients.
Andrew was educated at Nailsea School and holds degrees in law from Manchester and Leicester Universities. He qualified as a solicitor in 1995. He is a co-author of a Practical Guide to Drone Law.
Away from the office Andrew, married to a local GP and of occasional use to his three teenage children, runs and is heavily involved in his local church.
Katarzyna (Kate) Boguslawska is a Partner in our corporate and commercial department.
Kate’s clients range from start-up owners through to SMEs and some global main-players who need advice on business-related matters. These range from advice on employment and company matters to contract drafting and disputes. Kate understands her clients, their needs and goals. Her clients often praise her pragmatic approach and tailored practical advice.
In her employment practice Kate:
- drafts contracts, handbooks and company policies
- provides regular Employment/HR Advice
- negotiates contracts
- drafts and negotiate settlement agreements
- helps to navigate through TUPE, restructure and redundancies
- advises and represents in claims for unfair dismissal, discrimination, breach of contract, unlawful deduction from wages, etc
- advises on injunctive relief and restrictive covenants
Notable employment work included:
- advising a well-known English designer in company restructure and redundancies;
- advising employers and high net worth individuals on settlement agreements and severance packages;
- regular HR advice to a number of company clients;
- advising media company on contracts and issues relating to confidentiality, IP and restrictive covenants;
- representing high earning claimants in ‘Stress at Work’ personal injury matters.
In her commercial and company practice Kate:
- advises on suitable business entities and company formation;
- advises on company and directors’ duties;
- drafts necessary company documents including amended articles and resolutions;
- drafts and negotiates contracts and shareholders’ agreements;
- advises on shareholders disputes.
Notable commercial work included:
- advising and representing foreign companies establishing business in the UK;
- advising companies on matters involving directors’ duties and shareholders’ disputes;
- advising a Polish PLC on contract matters and negotiating on its behalf with an English PLC;
- representing an international cosmetics company in injunctive relief and restraint of trade matters;
- representing hauliers in representations against Border Force and HMRC in excise duty matters;
- advising EU nationals on immigration issues, residency and citizenship applications in the UK.
Kate has strong links in the Polish community and is recommended by the Polish Embassy in London, having co-written a Guide for Polish Investors in the UK that was published by the Embassy. She has a broad network of international connections and has been instructed by law firms in Poland to assist their clients in matters involving English jurisdiction.