The right to lodge an appeal against a student visa refusal to the Asylum and Immigration Tribunal (AIT) will be abolished when Tier 4 starts at the end of March.
Every day hundreds of appeals against Entry Clearance refusals are currently heard before an independent Immigration Judge at the AIT.
Around 25% of refusals are overturned on appeal, a staggering number considering that most appellants do not even show up in court, or opt to have their cases dealt with ‘on papers’ with no representation.
There is no fee payable to lodge an appeal to the AIT and have your case considered by a judge in the UK, and you do not have to use legal representation.
The right of appeal will be replaced by an “Administrative Review” – basically the case will be reviewed by another Entry Clearance Manager (ECM).
Entry Clearance refusals cases subject to appeal are of course already reviewed by an ECM before going on to a full hearing in the UK. According to appeal specialists Bison UK, the “vast majority of refusal cases are upheld by the Entry Clearance Officer’s (ECO) manager”.
However, where cases do reach the AIT for a full appeal the figures are reversed. In their experience, over 95% of the refusals upheld by the ECM were subsequently overturned by an Immigration Judge at the AIT hearing.
In other words, an independent Immigration Judge has deemed that 95% of those visa refusals were unlawful.
In one of Bison UK’s recent visa appeal cases, two Filipino Brothers (RRA and RJA) were on the same day both refused student visas to study NVQ in Health and Social Care at Majestic College in London.
The ECO at the British Embassy in Manila refused the young prospective students under section (ii) of paragraph 57 of the Immigration Rules (HC395).
Essentially, the ECO was saying that he did not believe they were coming to the UK to study and that they were only going to the UK to join their Mother and work.
No evidence for these accusations were put forward by the ECO, who based his refusal on what Bison UK’s appeal specialist said was “mere suspicion”.
At the hearing this month the judge disagreed and allowed both appeal stating in the written determination:
“I am satisfied that each appellant (the Brothers appealing) has established to the required standard that he meets the requirements of the Rules for entry clearance as a student”
“I am not satisfied that the decision of the respondent (the Entry Clearance Officer) is in accordance with the law and immigration rules applicable to this appeal.”
In other words, the judge is saying the refusal is unlawful.
What chance do students have under the Tier 4 of the new points system?
The Government argues that because the points based system will be more transparent and fair, there will be no need for an appeal process.
Under tier 4, students will, say the Government, only be refused on factual information, such as fraudulent documents or lack of funds. Students will not be refused on purely “subjective” reasons such as:
“I am not satisfied on the balance of probabilities that you intend to leave the UK at the end of your studies” or
“On the balance of probabilities I am not satisfied that you are a genuine student”.
This is commonly known as refusing on “intention”, something which, according to UK Border officials at a recent meeting in London, will not be allowed under the new system.
This is will be a major change for ECO’s who are used to acting on their own suspicions and opinions, and it remains to be seen what will happen in practice when the new system comes in at the end of March.
In the meantime you are free to exercise your fundamental right of appeal. Appeal cases are heard in the UK before an independent Immigration Judge, something you should consider when appointing an adviser to handle your appeal. An overseas lawyer will not be able to represent you at the all important hearing and you may end up paying separately for a UK based advocate.
Take advice from an OISC registered adviser or Solicitor to check on available options.
Finally, any applications submitted for a visa before tier 4 takes effect should carry the right of appeal if you are refused.