Right of Appeal or Administrative Review
If your UK visa application has been refused by the Home Office, don’t despair. UK visa refusals are a common occurrence and it may be possible to challenge the decision. Your application refusal letter will usually tell you whether you’ve been given the right to an administrative review, a full right of appeal or no right of appeal at all.
Your rights are dependent on the type of application that was originally submitted. In most situations, it will work as follows:
- All Points Based System (PBS) applications and family members of PBS migrants – i.e. Tier 1, Tier 2, Tier 4 and Tier 5 – will be eligible for administrative review only
- Human Rights and Protection claims and applications under EEA regulations attract a full right of appeal. However, some in-country rights of appeal can be ‘certified’ – this means the appeal can only be lodged once you leave the UK
- There is no right of appeal for visitor visa applications
Right of Appeal
The rules governing the rights of appeal to the Immigration and Asylum Chamber are extremely complex and relate to situations where human rights issues have been raised. Valid grounds on which an appeal can be brought are where:
- The decision is not in accordance with the immigration rules
- The decision is unlawful because it contravenes the Race Relations Act
- The immigration decision involves a breach of human rights under the European Convention of Human Rights (ECHR)
- The person’s rights under the Community Treaties would be breached because they or a family member are an EEA national
- The decision is not in accordance with the law (other than the immigration rules)
- Discretion should have been exercised in a different way to how it was legally exercised by the initial decision-maker
- There would be a breach of the person’s rights under the Refugee Convention or Human Rights Act if the UK authorities were to proceed with removal
If you wish to make an appeal and are in the UK, then it must be lodged with the First-Tier Tribunal (Immigration and Asylum) within 14 calendar days of the date you were sent the notice of decision; within 28 calendar days if you have been refused entry clearance.
Administrative Review is a process where an individual who applied for an entry clearance visa is able to challenge a refusal decision on the basis of a perceived ‘case working error’. If you are outside the UK and wish to apply for an administrative review of a UKVI (UK Visa & Immigration) decision, you will have 28 days to make the application. If you are applying from inside the UK, you must lodge your application within 14 days.
There are four possible outcomes to an application for administrative review. These are that the application:
- Succeeds and the eligible decision is withdrawn
- Does not succeed and the eligible decision remains in force, and all of the reasons given for the decision are maintained
- Does not succeed and the eligible decision remains in force, but one or more of the reasons given for the decision are withdrawn
- Does not succeed and the eligible decision remains in force, but with different or additional reasons to those specified in the decision under review. In this scenario, you may be entitled to apply for administrative review related to the new reasons
It is worth pointing out, that on occasions where you know the reason your application was refused and it’s something which is not too difficult to rectify, it may be more cost-effective to make a fresh application, rather than submitting an administrative review.
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