Changes to Administrative Review
Recent changes to the Immigration Rules in HC 1025, specifically relating to the scope of administrative review, mirror the phased commencement of section 15 of the Immigration Act 2014. S.I. 2015/371 now expands the circumstances in which the appeal and removal provisions of the 2014 Act will apply, to those who make applications for leave to remain on or after 2 March 2015 as a Tier 1 Migrant, a Tier 2 Migrant, or a Tier 5 Migrant, and as of 6 April 2015, the relevant provisions of the Act will have general effect.
For applications made on or after 2 March 2015, HC 1025 enlarges the range of ‘eligible decisions’in Appendix AR 3.2, to roll out administrative review to all of the following decisions:
(a) A decision on an application made on or after 20th October 2014 for leave to remain as:
(i) a Tier 4 Migrant under the Points Based System; or
(ii) the partner of a Tier 4 Migrant under paragraph 319C of the Immigration Rules; or
(iii) the child of a Tier 4 Migrant under paragraph 319H of the Immigration Rules.
(b) A decision on an application made on or after 2nd March 2015 for leave to
remain, as:
(i) a Tier 1, 2 or 5 Migrant under the Points Based System; or
(ii) the partner of a Tier 1, 2 or 5 Migrant under paragraphs 319C or 319E of the Immigration Rules; or
(iii) the child of a Tier 1, 2 or 5 Migrant under paragraphs 319H or 319J of the Immigration Rules.
(c) A decision on an application for leave to remain made under these Rules on or after 6th April 2015 unless it is an application as a visitor, or where an application or human rights claim is made under:
(i) Paragraph 276B (long residence);
(ii) Paragraphs 276ADE(1) or 276DE (private life);
(iii) Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
(iv) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
(v) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules, or under paragraph 284, 287, 295D or 295G where the sponsor was granted settlement as a Points Based System Migrant) or has refugee or humanitarian protection status in the UK;
(vi) Part 11 of these Rules (asylum);
(vii) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
(viii) Appendix FM (family members), but not where an application is made under section BPILR (bereavement) or section DVILR (domestic violence), in which case the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.
(d) A decision on an application made on or after 6th April 2015 for leave to remain made by a Turkish national or their family member pursuant to the UK’s obligations under Article 41 of the Additional Protocol to the European Community Association Agreement (ECAA) with Turkey, and under Article 6(1) of Decision 1/80 of the Association Council established by that agreement.”
Paragraph 2 of the Immigration Rules is also amended, deleting the need for compliance with the Human Rights Act 1998, so as to clarify that if a person wishes to make a human rights claim they must make an application under the relevant rule or otherwise make a claim outside the rules. AR2.6 of Appendix AR to the Rules remains, so as to prohibit the making of a human rights claim in an application for administrative review or any other application for leave or for a variation of an existing application for leave.
From 6 April 2015, Administrative Review will, in addition to those eligible decisions defined in AR3.2, also be available for:
(1) certain decisions to cancel leave to enter at the border where the reason for cancellation is:
(a) there has been such a change of circumstances in the applicant’s case since that leave was given that it should be cancelled;
(b) the leave was obtained as a result of false information given by the applicant or the applicant’s failure to disclose material facts. [Where the eligible decision is made in the Control Zone (as defined), administrative review may not be applied for and will not be considered until after the applicant has left or been removed from the Control Zone.]
(2) certain refusals of entry clearance overseas (unless it follows an application by a short-term student; a visitor; or where an application or human rights claim is made under specific immigration rules- in which case the remedy will be to appeal) and for refusals of applications by Turkish nationals or their family member pursuant to the UK’s obligations under Article 41 of the
Additional Protocol to the European Community Association Agreement (ECAA) with Turkey.
The definition of case working error has been revamped to create a simpler definition that works irrespective of whether the error is in a leave to remain decision, an entry clearance decision or a decision to cancel leave to enter. It is intended that all matters within the former definition remain included in the new definition of a case working error in paragraph AR2.11.
AR2.11 For the purposes of these Rules, a case working error is:
(a) Where the original decision maker’s decision to refuse an application on the basis of paragraph 320(7A), 320(7B) or 322(1A) of these Rules, or cancel leave to enter or remain which is in force under 321A(2) of these Rules, was incorrect;
(b) Where the original decision maker’s decision to refuse an application on the basis that the date of application was beyond any time limit in these Rules was incorrect;
(c) Where the original decision maker otherwise applied the Immigration Rules incorrectly; and
(d) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application. AR2.12 Additionally, where the eligible decision is one specified in paragraph AR3.2, a case working error is also where there has been an error in calculating the correct period or conditions of immigration leave either held or to be granted.”
The same restrictions on evidence considered on an application for administrative review continue to apply, in that the Reviewer (a separate team from the original decision maker) will not consider any evidence that was not before the Home Office case worker, Immigration Officer or Entry Clearance Officer except where the evidence is submitted to demonstrate a case working error as defined in AR2.11(a) and (b). Paragraphs 34M to 34Y of Part 1 to the Immigration Rules (as amended) describe the procedure for making a valid application for Administrative Review.
