The new Administrative review regime which until now applied mainly to entry clearance applications on Points based applications is now applicable to in country applications as well. It is important to recognise that it replaces the appeal system. It is vitally important to remember that once an application is refused, the reconsideration can only be done through this formalised Administrative procedure. There is no other form of reconsideration. So what does it involve?
The first point to note is that it only applies to “eligible decisions” which are:
- in country Tier 4 applications made by either a main applicant or their dependant(s) on or after 20 October 2014
- in country Tiers 1, 2 or 5 applications made by either a main applicant or their dependant(s) on or after 2 March 2015, including indefinite leave to remain applications under those routes
- in country applications where the decision was made on or after 6 April 2015 except for a protection (asylum) or human rights claim
If there is a right of appeal, this must be exercised and an Administrative review cannot be used.
Not surprisingly, there is a fee of £80 payable and completion of a form. The only consideration of the Administrative review is to consider “casework errors”. The list as provided by the UKVI identifies casework errors as follows:
(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
(d) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.
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
As will be apparent from the list, it covers all the areas that the Tribunals and experienced judges have grappled with over the years. The careful development of the law is dealt a big blow. This responsibility will now be given to junior caseworkers to interpret as they wish. Bearing in mind the fact that the statistics indicated that 40% of appeals were successful, the concern is that this is a whitewash and a backward step for law.
It is unlikely that errors of law will be corrected and this leaves a worrying precedent for the law in immigration. The only remedy will be judicial review which does not consider merits of a case as part of its jurisdiction. A very sad time for law, justice and fairness.
