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.
The note reflects legal position and is for general information purposes only and does not aim to be comprehensive or to provide legal advice. We accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Carter Lemon Camerons immigration team. The specialist team at Carter Lemon Camerons Solicitors can assist you with all immigration and business-related matters. Our years of expertise in these areas mean that we can provide tailored solutions for you. For more details, please contact our immigration team at email@example.com or +44 (0)20 7406 1000.