Administrative Review after the Immigration Act 2014
Following the introduction of the Immigration Act 2014, applicants who apply under Tier 1, Tier 2, Tier 4 and Tier 5 of the points-based system no longer enjoy a full right of appeal. Where the initial application includes a human rights claim, it is still technically possible to challenge any refusal of a points-based application on human rights grounds. However, the instances in which this will offer an effective remedy are likely to be few and far between. For most unsuccessful points-based system applicants therefore, the only option will be to apply for Administrative Review of the refusal decision by an official acting on behalf of the Secretary of State.
What is administrative review?
According to paragraph AR2.1 of Appendix AR to the Immigration Rules:
‘Administrative review is the review of an eligible decision to decide whether the decision is wrong due to a case working error.’
It is possible for a person faced with a refusal under Tier 1, Tier 2, Tier 4 or Tier 5 to apply for Administrative Review of a refusal of an application provided that the refusal decision is a ‘eligible decision’ and it is alleged that a case working error has occurred.
What is an eligible decision?
An eligible decision (listed in paragraph AR3.2 of Appendix AR) is either a decision to refuse an application to leave to remain or a decision to grant leave to remain where a review is requested of the period or condition of leave granted.
What is a case working error?
The Immigration Rules provide a complete list of case working errors, which include:
- Where the original decision maker applied the wrong Immigration Rules;
- Where the original decision maker applied the Immigration Rules incorrectly;
- Where the original decision maker incorrectly added up the points to be awarded under the Immigration Rules;
- Where there has been an error in calculating the correct period of immigration leave either held or to be granted;
- Where the original decision maker has not considered all the evidence that was submitted as evidenced in the eligible decision;
- Where the original decision maker has considered some or all of the evidence submitted incorrectly as evidenced in the eligible decision;
- Where the Immigration Rules provide for the original decision maker to consider the credibility of the applicant in deciding the application and the original decision maker has reached an unreasonable decision on the credibility of the applicant;
- Where the original decision maker’s decision to refuse an application on the basis that the supporting documents were not genuine was incorrect;
- Where the original decision maker’s decision to refuse an application on the basis that the supporting documents did not meet the requirements of the Immigration Rules was incorrect;
- Where the original decision maker has incorrectly refused an application on the basis that it was made more than 28 days after leave expired; and
- Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.”
Applicants can only apply for Administrative Review on the above mentioned grounds. The decision will be reviewed to establish whether there is a case working error, either as identified in the application for Administrative Review, or identified by the reviewer in the course of conducting the Administrative Review.
No new or further information/documents can be submitted, unless the refusal is under paragraph 320(7A) or 320(7B) or the new evidence goes to the provenance of documents previously relied on. In some circumstances, the Reviewer may contact the applicant or his representatives in writing and request relevant evidence. The requested evidence must be received in the requested timeframe, which is within 7 working days of the date of the request.
The Reviewer will not consider whether the applicant is entitled to leave to remain on some other basis. For example, the applicant may make an application for leave or to vary an existing application for leave, or make a protection or human rights claim, while seeking Administrative Review. However, the Reviewer will not take such claims into account when considering the Administrative Review application.
Section 3C leave while applying for administrative review
An applicant’s leave will be extended under Section 3C of the Immigration Act 1971 if, following refusal of their application, they are eligible to make an application for Administrative Review.
If the applicant does not make a request for Administrative Review following an eligible refusal decision, their s.3C leave will end on the last day on which they could have made an in-time application. If the applicant does make an in-time Administrative Review application, their leave will be further extended under s.3C while their Administrative Review is pending.
If the applicant makes an out of time Administrative Review application in respect of an original application that was in-time, and the Home Office accepts the Administrative Review as valid because it would be unjust not to consider the application, then s.3C leave will continue from the date of the decision to reconsider the application. In this case the applicant will not be covered by s.3C leave during the period between their leave expiring and the date on which the Home Office accepted that the out of time review application was valid.
If the applicant made their initial application out of time and they apply for Administrative Review of a refusal decision, their leave will not be extended under s.3C while the review is outstanding as their leave will already have expired. They will remain an overstayer but will not be removed while the Administrative Review application is pending.
Outcome of Administrative Review
The outcome of an Administrative Review application will be:
- Administrative review succeeds and the eligible decision is withdrawn; or
- Administrative review does not succeed and the eligible decision remains in force and all of the reasons given for the decision are maintained; or
- Administrative review does not succeed and the eligible decision remains in force but one or more of the reasons given for the decision are withdrawn; or
- Administrative review does not succeed and the eligible decision remains in force but with different or additional reasons to those specified in the decision under review.
Where a simple mistake is made by the Home Office, Administrative Review should offer a quicker and cheaper remedy than an appeal, but the scope of Administrative Review is far more limited than a full appeal and the review is not an independent one – it is conducted by Home Office.
It remains to be seen whether the Home Office is able to effectively review its own decisions. However, figures previously have suggested that whereas around 50% of immigration appeals before independent judges are allowed, only 18% of decision have been overturned on Administrative Review.
For all other cases, i.e. long residence, private life, partner or child of a member of HM Forces, Appendix FM etc., full rights of appeal are removed from 6th April 2015. In these cases however, the appropriate remedy will be an appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for Administration Review because it remains possible to argue that any refusal decision breaches Article 8 ECHR. In this regard the recent decision in Mostafa (Article 8 in entry clearance)  UKUT 112 (IAC) (6 March 2015) may be helpful for many.
For advice and assistance with applying for Administrative Review or appealing against an immigration decision on human rights grounds, contact our immigration barristers and lawyers in London.