We know how difficult change can be, as we move off from the restrictions imposed by covid, the new continues. Well, the new does mean, getting back to where we were prior to the disruption we had created by covid.
Enterprises and organisations are learning to change, however what has not changed, is the complexity of immigration programs. Whether this is an individual or an enterprise, the requirements of getting it right is essential.
The Home Office are returning its ways of dealing on how immigration decisions are being made. It is sad reality that almost 4 immigration and visa applications out of 10, fall for refusal. It’s a scary moment because that is just over 40% of matters being refused and the rate of refusals have rocketed. The key question we will ask ourselves is whether we are doing anything different or is the complexity of UK immigration changing.
The identification of issues we find when analysing refusal notices, is the lack of detail we are putting into visa applications. Client’s are rushing to complete visa applications and trying to simply get over the line. Our immigration teams are being flooded with refusal notices, whether on immigration or nationality matters including EU settlement scheme applications, there are clearly things going wrong.
Almost 90% of matters we handle, have been done by the client themselves, which means, there has been a lot of attempts by individuals or enterprises, trying to attempt the application route on their own. We know that one of the driving force is related to inflation and clients are trying their best to drive costs down. However what remains is the complexity of the immigration and nationality programs. As the Home Office starts to get back to its normal process of considering matters, the risk of either a rejection or a refusal, is happening.
Its only a few days ago, that both Rt Hon Rishi Sunak and his Secretary of State Rt Hon Suella Braverman KC MP discussing about how to make the immigration programs more competitive and stricter in their policy. I cannot even imagine what changes could be imposed.
We can agree immigration is a benefit to both our economy, our businesses and the individuals relocating, however our matters that are now being pushed into the technology era, is taking a away the human factors of decision making. I am not suggesting that this is the entirety of the case but those applying, seem to believe that is the immigration or nationality process. The absence of guidance and how to submit the appropriate information & documents is not being translated to the applicants.
What are my options of challenging a legal decision made by the Home Office?
Well, the refusal notice or directions will tell you exactly on what you can do and what you cannot do. Challenging a decision must be thoroughly analysed and then you can consider either to challenge the decision or possibly look at other alternative routes of applying.
Did you know? The online interaction form creation will be based on the answers you provide and the form generated based on this. This then considers your immigration visa application on the applicable immigration rules.
Does appealing a decision helps?
When an appeal right are generated following a Home Office refusal, it allows the judiciary to oversee whether that Home Office decision was proportionate and correct. The Home Office and the applicant are then given opportunity to put each other in notice on the grounds of the appeal and why the challenge have been placed.
Following the Immigration Act 2014 changes, the Home Office through legislation have restricted the grounds of appeal. The removal of whether the decision was in accordance to the law or not in accordance to the immigration rules was removed. This is something we find was wrong, as the Home Office created the administrative review, however the matter never appears before a third party for a review.
I do agree that any new matters should go before the Home Office because at the same time, the Home Office are not permitted to raise a new matter at the appeal process. What constitutes a new matter is set out in Section 85 of the Nationality, Immigration and Asylum Act 2002.
The time frames imposed into the appeal rights?
The 14 days rule applies to matters in the UK and 28 days if the applicant is outside of the UK. Where a decision is made under the EU Settlement Scheme, you can do an administrative review and if that fails, your right to appeal is preserved, which means you can appeal it if the admin review fails.
The concept of the administrative review and then appealing a decision is a good structure, however this does not extend to immigration matters, which I find is simply wrong.
We know that Home Office Officials do make mistakes, so the avenue of doing an administrative review should be available to all types of immigration decisions.
Section 120 notices
We find that a number of applicants fail to submit the claim form related to the Section 120 notice. This works in conjunction to the purpose of raising matters that were not submitted to the Home Office. The defence from the Home Office is that your failure of submitting grounds, that are later raised, are possible dismissed or denied.
Its ever important that we treat legal notices from the Home Office with due care and attention, as this places a risk to the claim made at a later stage.
What does certification claim mean in the appeal context?
The purpose from the Home Office is quite simple. The certification claim is to prevent repeat claims and exhaust appeals that has either no merits or had been decided previously. However we have seen, in matters were the applicant had not been afforded any right of an appeal previously or had not challenged a decision, certification claims are being raised.
In that case, we find that the Home Office are using the legislation unfairly because only a matter that had been decided by a judiciary, should then be deemed as decided. Nonetheless, we see a regular decision being made which we find is unlawful.
How has the impact of the appeal grounds changes impacted the appeals determination?
Well we know that the restrictions imposed by the Immigration Act 2014 meant that immigration decisions that was being made, had to be determined in line with Section 6 of the Human Rights Act.
The case law of Charles (human rights appeal: scope)  UKUT 89 (IAC), the Upper Tribunal considered the effect of the amendments to section 86 on the Tribunal’s power to determine an appeal. It was concluded in that matter that
In a determination written by the President, the Upper Tribunal found that, following the amendments, it was no longer possible for an immigration judge to allow an appeal on the ground that the decision was not in accordance with the law, is now considered under Section 6 of the Human Rights Act.
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