Administrative Review under the new Appendix AR
Those who apply for leave to remain as a Tier 4 Migrant, as a partner of a Tier 4 Migrant and/or as a child of a Tier 4 Migrant on or after 20 October 2014 will have their right of appeal to the First-tier Tribunal removed following the introduction of The Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014, SI 2014/2771.
Instead of having the right of appeal to an independent Tribunal, the unsuccessful applicant will need to follow the new administrative review procedure which is set out in Appendix AR to the Immigration Rules.
Administrative review is an internal review procedure whereby the refusal decision made by one Home Office caseworker is reviewed by another caseworker, 'the reviewer', who took no part in making the original decision.
At present, administrative review is only available for 'eligible decisions' which are defined by paragraph AR.3.2(a) as an application made on or after 20 October 2014 for:
(i) Leave to remain as a Tier 4 Migrant under the Points Based System; or
(ii) Leave to remain as the Partner of a Tier 4 Migrant under paragraph 319C of the Immigration Rules; or
(iii) Leave to remain as the child of a Tier 4 Migrant under paragraph 319H of the Immigration Rules.
Appendix AR, therefore, does not apply to the refusal of applications for entry clearance. However, it is still possible to challenge certain decisions refusing entry clearance by way of administrative review. For further details, please refer to our earlier article.
An administrative review application must be made online by completing an online application form. The application must comply with the requirements set out within paragraph 34U of the Immigration Rules, otherwise the application will be declared invalid. A paper application for administrative review is only available to those who made their application for leave to remain by post.
The decision will be reviewed by a reviewing officer in order to establish whether there is a case working error in the decision. Paragraph AR.3.4 identifies 11 different case working errors. These errors are as follows:
a) The decision maker applied the wrong Immigration Rule to the application;
b) The decision maker has applied the Immigration Rules incorrectly;
c) The decision maker incorrectly added up the points to be awarded under the Immigration Rules;
d) The decision maker has made an error in calculating the correct period of immigration leave held or to be granted;
e) The decision maker has not considered all the evidence that was submitted with the application for leave to remain;
f) The decision maker has considered some or all of the evidence incorrectly;
g) The decision maker has reached an unreasonable decision on the credibility of the applicant where the Immigration Rules require consideration of an applicant's credibility;
h) Where the decision to refuse the application for leave was made on the basis that the supporting documents were not genuine, that decision was incorrect;
i) The decision to refuse on the basis that the supporting documents did not meet the requirements of the Immigration Rules was incorrect;
j) The application was incorrectly refused on the basis that it was made more than 28 days after the leave expired;
k) The decision maker failed to apply the relevant policy and guidance in relation to the application.
The scope of a 'case working error' is broad and covers a wide range of circumstances. In particular the 'case working error' that 'the decision maker has applied the Immigration Rules incorrectly' would appear to be equivalent to the statutory ground of appeal that the decision is not in accordance with the requirements of the Immigration Rules. This in turn means that the existing case-law from the Upper Tribunal and higher courts concerning Tier 4 Students can be relied upon.
In the event that the decision is sought to be challenged for a reason not set out within paragraph AR.3.4. the only option to challenge the decision will be an application for permission to apply for judicial review.
Once the reviewing officer has considered the administrative review application, he or she can make one of the following decisions:
a) The application for administrative review is successful and the refusal decision is withdrawn;
b) The application is rejected and the refusal decision remains in force with all of the reasons given for the refusal are maintained;
c) The application is rejected and although the decision remains in force, one or more of the reasons for refusal are withdrawn;
d) The application is rejected and the refusal decision is maintained but for different or additional reasons.
If the application for administrative review is unsuccessful then the decision could potentially be challenged by judicial review or, alternatively, a fresh application could be submitted to the Home Office supported by further and better evidence.
If you would like further advice regarding Administrative Review then please contact our immigration barristers direct in London. Our immigration barristers will be able to advise you as to the merits of a decision of the Home Office refusing leave to enter or remain and are able to draft expert legal submissions in support of an administrative review application. Please contact us on 0203 617 9173 or email email@example.com.