How to challenge a visit visa refusal by Judicial Review

The largest category of entry clearance visas granted are visit visas issued to those who want to visit the UK. We are receiving an increasing number of enquiries from those who have been refused a visit visa and want advice on how to challenge this.

There are few mandatory documents required as part of the application and broad discretion afforded to entry clearance officers (‘ECOs’). This means that visit visa refusal decisions are often poorly reasoned, fail to engage with the evidence, suffer from factual errors or are wrong in law.

There are three options available if this happens: (1) re-apply (2) appeal, or (3) pursue a Judicial Review.

Why pursue a Judicial Review?

If all available supporting evidence was provided with the application and you do not agree with the concerns raised by the ECO in the refusal decision, making a new application may be inappropriate. The refusal decision will be taken as a starting point for any new application, and an ECO is likely to refuse a new application on the same basis if they do not consider their concerns to have been addressed.  

Since July 2013, there has only been a right of appeal for a visit visa application to the First-tier Tribunal on human rights grounds. Not all visit visa applications engage human rights. The Home Office guidance on considering human rights claims from visitors sets out limited circumstances in which it considers human rights to be engaged. The issue will only be considered by a judge upon lodging an appeal, following which a judge may decide after months of waiting that human rights are not engaged, and there is therefore no jurisdiction to hear an appeal.

Where a new application or an appeal are unsuitable, pursuing a Judicial Review may be appropriate.

Judicial Review Process

Judicial review can only be pursued where there is no adequate alternative remedy. It is a challenge to the lawfulness of the decision made, whereby a judge will consider whether the law has been correctly applied and the right procedures have been followed. As it is not a review of the substantive merits of the application, no further evidence can be submitted at this stage. A judicial review application must be lodged within 3 months of the refusal decision.

Grounds for challenging a visit visa refusal

When considering whether there are arguable grounds that the decision was unlawful, the following matters may be relevant:

• Has the ECO correctly applied the relevant law as set out at Appendix V of the Immigration Rules?
• Is the decision in accordance with the Home Office published policy on visitors?
• Has the ECO taken into account all material considerations/ evidence?
• Has the ECO taken into account immaterial considerations?
• Has the ECO made a factual error?
• Has the ECO provided sufficient reasons to enable you to effectively challenge the refusal decision or to reapply?
• Is the decision Wednesbury unreasonable, i.e. so unreasonable that no reasonable decision-maker, acting reasonably, could have made the decision?

Pre-action Protocol on Judicial Review

Prior to lodging a Judicial Review application, a ‘letter before claim’ should be sent to the Home Office, setting out the grounds for challenging the decision and giving the Home Office a chance to reconsider their own decision.  The grounds will be reviewed by an Entry Clearance Manager who may overturn the decision of the ECO. The Home Office should be given a minimum of 14 days to respond. The service of this letter could be sufficient to cause the Home Office to overturn their decision.

If, however, the decision is maintained, or there is no response to the letter, you can then lodge a Judicial Review claim in the Upper Tribunal.  This will cause your application to be reviewed by the Government Legal Department. If the decision is maintained, the case will be considered by a judge.  

Contact our Immigration Barristers

For information or advice about challenging a visit visa refusal, contact our immigration barristers on 0203 617 9173 or via our enquiry form.