What is the purpose of an appeal review
The purpose of the appeal review is to consider the grounds of appeal and supporting documents. A review is required for all decisions refused with a full right of appeal (RoA). Those undertaking the review must assess whether the appellant has satisfactorily addressed the reasons for refusal. If the appellant has successfully addressed all the points of refusal the decision should be overturned and a visa issued. If it is found that the appellant has failed to address the reasons for refusal a written statement detailing why, the decision is being upheld must be provided.
Who should conduct the appeal review
All appealed decisions must be reviewed by an independent decision maker and records should be updated.
How should the appeal review be conducted
On receipt of an appeal, the initial decision must be reviewed taking into account the grounds of appeal and any additional supporting documentation. Documents supplied at the time of application should be available for consideration if required. The reviewer must decide to maintain the ECO decision or agree in light of the grounds of appeal.
Where an appellant provides evidence which appears to discharge the burden of proof and satisfactorily addresses the reasons for refusal the decision should be overturned and a visa issued.
If a decision has been taken to overturn the refusal and issue the visa, the appellant must be contacted within 10 working days requesting submission of the passport. Proviso should be updated accordingly. This 10 day time-frame is intended to minimise delays for appellants who have satisfactorily addressed the reasons for refusal.
If a decision has been made to maintain the decision then clear reasons must be provided for this using the appeal review template. Standard paragraphs should not be used when explaining why the decision is to be maintained.
- Consideration should be given to whether the documents submitted are relevant to the decision. If the documents are not relevant and do not address the reasons for refusal this should be clearly stated. For example, maintenance and accommodation is not met and on appeal the appellant provides only a birth certificate; this should be recorded as irrelevant within the appeal review statement
- Consider whether evidence provided is relevant to the date of decision. If evidence does not relate to circumstances at the date of decision this should be made clear in the review statement
- All documents submitted with the initial application and with the appeal are listed in the review statement
What is the standard of proof
The standard of proof is the balance of probabilities. The balance of probabilities simply means on consideration of the evidence that there is more evidence in favour of one decision than the other. When undertaking a review an assessment as to whether it is more likely than not that an appellant has discharged the burden of proof.
For paragraph 320/Suitability decisions where the ECO has evidence that the applicant has used deception, made a false statement or given false information, the standard of proof is ‘to a higher degree of probability’. In order to maintain a paragraph 320/Suitability decision, we need positive evidence that they have used deception or false representations, or that a document that they have submitted is false. Case-law has determined that the more serious the allegation the more convincing the evidence should be.
Post decision evidence
The relevant date in entry clearance cases is the date of refusal. This is established from case law and s. 85(5) of NIAA 2002. Any material change in circumstance or evidence not reasonably foreseeable after the date of refusal should not be taken into account. In practice this means when conducting the review only the circumstances leading up to and including the date of refusal should be considered. The review or immigration judge is entitled to look at circumstances / evidence after the date of decision only if they relate to circumstances before or at the time of decision.
There is a distinction to be made between new evidence and additional evidence.
5.1New evidence:
New evidence which postdates the decision cannot be considered as part of the appeal review. This evidence should be acknowledged in the review it should indicate that this should be used to support a fresh application.
Examples of new evidence
These are common examples and are not an exhaustive list.
- Unexpected increase in funds postdating the decision.
- Sponsor obtains new employment that was not engaged in / expected at the date of decision.
- A new sponsor appears in the grounds of appeal. This is not reasonably foreseeable.
5.2Additional evidence:
If evidence relating to the initial application is submitted with the appeal this should be taken into account at the appeal review. The most common instances of additional evidence will be documents that the appellant omitted to include with the application.
Examples of additional evidence
These are common examples and are not an exhaustive list.
- A bank statement issued after the date of decision that shows a satisfactory balance on or leading up to the date of decision
- Satisfactory evidence of accommodation submitted by the sponsor relevant to the decision
- Evidence of employment at the date of decision which was omitted from the original application
- A birth certificate evidencing the relationship of parties which was not produced at the time of decision
If you have an application which has been refused, and have a right to appeal, email us a copy of the notice to info@icslegal.com. ICS Legal has extensive experience in immigration appeals.
