Fresh evidence in Administrative review proceedings
Following the coming into force of the Immigration Act 2014 and the significant changes to the rights of appeal this introduced, the use of Administrative Review as a means of challenging a decision of the Home Office refusing leave to enter or remain is becoming increasingly common.
What is Administrative Review?
Administrative review is an internal review procedure whereby the Home Office will review its own decision. The administrative review application will be considered by another caseworker who took no part in making the original decision.
What decisions are susceptible to Administrative Review?
This process is available for only certain types of ‘eligible decision’. Decisions eligible for administrative review in the UK are listed within paragraph AR.3.2 of Appendix AR of the Immigration Rules. In short, the decisions which can be challenged are as follows:
Refusal of leave to remain as a Tier 4 migrant and their dependents for applications made on or after 20 October 2014;
Refusal of leave to remain as a Tier 1, 2 or 5 migrant and their dependents for applications made on or after 2 March 2015;
Refusal of an application made under Article 41 of the Additional Protocol to the European Community Association Agreement (ECAA) with Turkey and their dependents for applications made on or 6 April 2015; and
In-country applications where the decision was made on or after 6 April, unless the applicant applied as a visitor or made a ‘protection’ (i.e. asylum) or human rights claim (certain applications are deemed to raise human rights, including an application for indefinite leave to remain on the ground of long residence under paragraph 276B of the Immigration Rules), in which case these decisions will attract a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber).
On what basis can these decisions be challenged?
These decisions can be challenged only on the basis that there is a ‘caseworking error’ within the refusal decision. Caseworking errors are defined in paragraph AR.2.11:
the original decision maker’s decision was incorrect (paragraph AR2.11(a)) in decisions to:
a. refuse an entry clearance application on the basis of paragraph 320(7A) or 320(7B) (false representations, false documents or information, failure to disclose material facts or previous breach of conditions);
b. refuse an in UK application on the basis of paragraph 322(1A) (refusal on the basis of false representations, documents or information or failure to disclose material facts) of the Rules ;
c. cancel leave to enter or remain which is in force as a visitor under paragraphs V9.2 or V9.4 of appendix V of the immigration rules;
d. cancel leave to enter or remain which is in force at the border under paragraph 321A(2) (change of circumstances, false representations or failure to disclose material facts);
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;
Where the original decision maker’s decision not to request specified documents under paragraph 245AA of these Rules was incorrect;
Where the original decision maker otherwise applied the Immigration Rules incorrectly; or
Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.
Can fresh evidence be considered in Administrative Review proceedings?
Following receipt of an application for administrative review the reviewing officer will not consider any new evidence unless three requirements are met as set out within paragraph AR2.4:
the application for administrative review is made on the basis of the caseworking errors set out in a), b) or c) above; and
the evidence is being submitted to demonstrate that the refusal of the application under paragraph 322(2) of the Immigration Rules contains a caseworking error, that is the applicant is seeking to prove that deception was not practiced in the application; and
the applicant has not previously been served with a decision which relies on the same factual findings:
i. Refusing an application for entry clearance, leave to enter or remain;
ii. To revoke entry clearance, leave to enter or remain;
iii. Cancelling or curtailing leave to enter or remain;
iiv. To remove a person from the UK which results in their leave being invalidated.
The intention of paragraph AR2.4 is to allow an applicant one opportunity to produce new evidence to challenge a finding of deception. The applicant will not be able to introduce new evidence to challenge a finding of deception if they have had an earlier application refused on the grounds of deception.
How do you apply for Administrative Review?
The application for administrative review for in-country decisions is made by completing and submitting a form online. At the stage of submitting the application there is no means by which evidence can be attached. Instead, the applicant will need to make it clear that they are seeking to establish one of the permitted caseworking errors. Having done so, the reviewing officer must request the additional evidence from the applicant and allow a period of 7 working days in which to provide the evidence requested, as confirmed in the Home Office’s Modernised Guidance.
In the event that the Home Office does not follow their published policy and fails to request additional evidence where this is permitted, there may well be scope for challenging the decision by way of judicial review.
If you would like further advice regarding Administrative Review or any other immigration matter then please contact our immigration barristers direct in London on 0203 617 9173 or email firstname.lastname@example.org.