(Appeal) Denied!

Following our post which summarised the planned changes to family migration contained in a leaked letter written by Theresa May, more changes to UK immigration have been announced which demand comment.  This time, it is the Immigration Minister Damian Green who has announced further tightening of the rules governing family migration, with a change to the Crime and Courts Bill which will end the right of appeal previously granted to those wishing to visit family members in the UK.

By 2014, any non-EEA applicants intending to undertake a short visit to a family member living in the UK and whose visitor visa applications are refused, will have to re-apply rather than being able to launch an appeal.

Although the change will not be fully implemented for over a year, interim measures will mean that from July 2012, those applying to visit a cousin, uncle, aunt, niece or nephew will be stripped of their right of appeal with immediate effect, thereby restricting appeal rights to those visiting close family members only.

What is the Government’s rationale behind this change?

We are told by the Home Office that the decision has been taken due to a significant increase in the number of appeals being made, which reached 50,000 between 2010 and 2011. The cost of processing these appeals is estimated to be £29 million per year. The Government clearly hopes that this move will eradicate the backlog of cases which has built up at the immigration tribunals and will allow the tribunals to focus on the most serious cases.  It is true that appeals are frequently used to submit new evidence which should have been included in the original application.

In the UK Border Agency’s news bulletin, they suggest that this new restriction will put family visitor visas in line with other categories of visit visa, such as the business or tourist visa, which do not have a full right of appeal attached to them. Applicants who are refused will, however, still be able to appeal on limited grounds of human rights or race discrimination.

Our View

We’d like to highlight to all applicants for short term family visitor visas that they must be especially careful when submitting initial applications, in light of these changes.  Such applicants should ensure that the information and supporting documents they provide is absolutely correct, to minimise the risk of having to re-apply (incurring further expenses and delays). 

We are concerned that this new restriction could result in unfairness for the applicant, since mistakes are sometimes made when processing or deciding applications.  It will cause great cost and inconvenience for an applicant who is denied the right of appeal to have to re-apply, and would be grossly unfair if, in fact, the application should have been approved in the first instance.

Family members’ rights of access are a highly sensitive subject, and therefore it is perhaps odd that Damian Green has found it so important to bring this visa category in line with the tourist and business visa catgories.  Surely, most would agree that it is far more of an emotional strain to be refused a visa to visit your family, rather than being refused a tourist or business visa.

It may also be harder to tell how many applications are being rejected due to UKBA incompetence if all rejected applications will simply be forced to re-apply.  There will be concerns over how well the effectiveness of the UKBA can be monitored if there is reduced opportunity for independent review and less accountability to the courts.

However, if removing the right of appeal in these cases will result a reduction of frivolous or carelessly drafted applications, then there are clearly positives to be found in this new legislative change.

We will watch with interest to see how this latest change unfolds, whether it does bring the improvements the Government claims, or whether it transpires to be simply another exercise designed to win support from the anti-immigration lobby, which will end up adversely affecting the welfare of hard-working immigrants in this country.

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