Abolition of family visitor visa appeal rights

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HOUSE OF COMMONS LIBRARY

Abolition of family visitor visa appeal rights

Standard Note: SN06363

Last updated: 5 July 2013

Author: Melanie Gower

Section Home Affairs Section

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Section 52 of the Crime and Courts Act 2013 abolished the full right of appeal in family visitor visa cases. Applications submitted on or after 25 June 2013 are affected. The options available to refused applicants are to submit a new visa application and/or to consider whether they could exercise remaining limited rights of appeal, on race relations and human rights grounds or through judicial review.

Members of Parliament can ask UK Visas and Immigration on behalf of a constituent to review a family visitor visa refusal decision. However it will only agree to conduct a review if the representations highlight compelling compassionate circumstances or a potential mistake in the original decision.

Labour opposed the abolition of family visitors' appeal rights, describing the move as "unfair and a false economy". The Joint Committee on Human Rights also expressed concerns.

The Government has emphasised that it is making various improvements to the visa application process to assist applicants. It argues that the right of appeal no longer serves its intended purpose, not least since it is considerably quicker and cheaper for a refused applicant to submit a new application rather than wait for an appeal to be processed. It estimates that abolishing the right of appeal will save "tens of millions of pounds" and will enable immigration tribunals to focus on more important types of case.

Defenders of family visitor visa appeal rights have countered that access to an independent appeal tribunal is essential for applicants. They have emphasised concerns about the quality of initial decision-making in visa applications, and the potential implications that a refusal decision may have for subsequent visa applications.

The success rate for family visitor visa appeals, prior to abolition, was around 1 in 3. Government analysis indicated that additional evidence submitted at appeal stage had a significant influence over appeal outcomes. However, there was disagreement between the Government and its critics over whether the use of additional evidence reflected a failure by the applicant (for not providing the evidence earlier) or the immigration authorities (for not indicating that it was required).

Contents
1 Family visitor visas
1.1 Eligibility requirements and conditions attached
1.2 Legislation abolishing full right of appeal
1.3 Casework enquiries: What options are available to refused family visitors?
1.4 What independent oversight of decision-making remains?
2 Why abolish the right of appeal? The Government's reasoning
3 The counter-arguments, and Government's response
3.1 Refused applicants should be given an opportunity to 'clear their name'
3.2 The quality of decision-making is not good enough
3.3 The application process should be more user-friendly
3.4 High success rates at appeal reflect flaws in the handling of cases
3.5 Certain communities will be particularly affected
3.6 Using appeal fees to reduce appeal processing costs
4 Statistics: Applications and allowed appeals, 2008 - 2012

1 Family visitor visas

1.1 Eligibility requirements and conditions attached

There are various different categories of visitor visa for the UK. These cater for different purposes of visit, including those for tourism; to perform as an entertainer at an event; to attend a business engagement; or to get married (but not settle) in the UK.

Persons seeking entry as a visitor for tourism or to visit friends are covered by the provisions for 'general visitors.' [1] Persons coming to visit a family member in the UK are covered by the same rules. They must be able to satisfy the immigration authorities, amongst other things, that they are genuinely seeking entry as a visitor, for no more than six months, do not intend to work or study whilst in the UK, can meet the cost of the return journey, and have sufficient arrangements for their maintenance and accommodation (without needing to access public funds). An application for entry clearance (i.e. a 'visa') as a general or family visitor, which grants a maximum of 180 days' stay, currently costs £80.

The UKBA website pages for family visitors contain information about the eligibility requirements and type of supporting documents applicants should provide - these include evidence of the applicant's circumstances in their home country, their finances and employment, their intended visit to the UK, and their accommodation and travel details.

1.2 Legislation abolishing full right of appeal

Only a few visa categories have 'full' rights of appeal in the event of a refusal decision (i.e. appeal rights which derive from immigration legislation). [2] Family visitor visa applicants used to have a full right of appeal, but this has recently changed.

Section 52 of the Crime and Courts Act 2013 removed the full right of appeal against refusal of entry clearance as a family visitor. The section came into force on 25 June 2013. Family visitor visa applications made on or after that date do not have a full right of appeal in the event of a refusal decision. [3] Applications submitted before 25 June still have a full right of appeal. [4]

The Government has estimated that abolishing family visitors' full appeal rights will generate a net benefit of around £107 million over 10 years. [5]

Labour opposed the abolition of family visitor visa applicants' appeal rights during the passage of the Crime and Courts Act, describing the measure as "unfair and a false economy". [6]

1.3 Casework enquiries: What options are available to refused family visitors?

Re-apply

Refused applicants can make a new visa application as soon as they wish after a refusal, although it is advisable to first consider the reasons why the previous application was refused and how these could be addressed in a future application. A UK Visas and Immigration fact sheet for Members of Parliament identifies some of the common reasons why family visitor visas are refused: [7]

• Lack of family ties in home country;

• Lack of evidence of assets, job etc. in home country;

• Lack of evidence of who will pay for visit;

• Poor immigration history of the applicant (for example overstaying);

• Previous non compliance with the conditions of a previously issued visa;

• Several, usually long, visits to the UK suggesting that the applicant is not genuinely seeking entry as a visitor;

• Insufficient evidence of sponsor's ability to maintain and accommodate the applicant/s; and

• Insufficient evidence that the applicant and sponsor are related as claimed. [8]

UK Visas and Immigration guidance instructs Entry Clearance Officers to provide full reasons for refusal. It also describes how to handle new applications from persons who have previously been refused:

If an applicant chooses to re-apply submitting a fresh application, the ECO must treat the fresh application on its merits. Cross-reference to information held on previous application(s) may be carried out and noted but a full assessment of the new application must be made against the Immigration Rules. [9]

Exercise limited rights of appeal

All entry clearance refusal decisions attract 'residual' (also known as 'limited') rights of appeal on race discrimination and human rights grounds. A refusal could also be challenged by way of judicial review. Visa sections are not required to inform applicants of how to exercise these limited appeal rights. [10] Constituents wishing to pursue these options would be well advised to seek professional legal advice from a UK immigration law specialist.

Constituents who contact their Member of Parliament

UK Visas and Immigration has produced a fact sheet for MPs who receive representations from constituents about refused family visitor visa cases (available from the MP Information Pages on the UKBA website). [11]

It suggests that Members explain to constituents why the refusal decision was made, and states that UK Visas and Immigration will not review a decision on the basis of new documentation being available.

However, the fact sheet confirms that UK Visas and Immigration will consider a request to review a refusal decision made by an MP on behalf of a constituent if there are compelling compassionate circumstances, or an MP highlights a potentially erroneous decision. [12]

Requests for a review should be made through Members' MP Account Managers, who will liaise with the relevant entry clearance staff and advise on likely timescales for dealing with the request. If it is clear that an error has been made, the case will be reviewed.

There are circumstances in which UK Visas and Immigration will decide not to review a decision in spite of representations from an MP - for example, if the representations are based on evidence which should have been submitted with the original application.

1.4 What independent oversight of decision-making remains?

The Independent Chief Inspector of Borders and Immigration has a remit to scrutinise the work of the Home Office directorates responsible for immigration controls, and a statutory duty to monitor and report to the Home Secretary on the quality of decision-making in visa categories which do not attract a full right of appeal (although he cannot intervene in individual cases). [13]

2 Why abolish the right of appeal? The Government's reasoning

A July 2011 public consultation on changes to family-related immigration categories set out the Government's concerns about the full right of appeal in family visitor visa cases:

• In 2009-10, family visit visa appeals made up just under 40 per cent (63,000) of all immigration appeals going through the system, costing the taxpayer around £40 million a year.

• New evidence is often submitted on appeal which should have been submitted with the original application. The 'appeal' then becomes in effect a second decision, based on the new evidence, which is often why an appeal is allowed. Analysis of a sample of 363 allowed family visit visa appeal determinations received by the UK Border Agency in April 2011 showed that new evidence produced at appeal was the only factor in the Tribunal's decision in 63 per cent of allowed appeals.

• There is evidence of a small but increasing level of misuse of the family visit visa as a means of seeking to remain in the UK. In 2009, asylum intake was 24,500 (principal applicants only), 280 (1 per cent) of which were matched to family visit visas issued on appeal. In 2010, intake was 17,800, 480 (3 per cent) of which were matched to family visit visas issued on appeal.

(...)

1.24 If the application is refused, the refusal notice contains full and clear reasons for that decision. We suggest that, rather than submitting further evidence on appeal (and in the majority of cases obtaining at the taxpayers' expense a new decision based on new information), a person refused a family visit visa should submit a fresh application. It is open to anyone who has been refused a family visit visa to apply again, on payment of the £76 visa application fee, and provide further information in support of their application. We make decisions on family visit visa applications quickly: 95 per cent within 15 working days in 2010-11, far more quickly than an appeal can be concluded, which can take up to 34 weeks. [14]

The consultation paper proposed limiting the right of appeal for family visit visas to race discrimination and human rights grounds, in line with the appeal rights for other categories of temporary visas. In making this proposal, it noted that:

• The taxpayer is currently footing the bill for appeals where people are misusing the appeals system - namely where the information submitted on appeal should have been put forward as part of the original application, or where a second application is the most appropriate route for securing a visa.

• It is a disproportionate use of taxpayer funding (of around £40m per year for an appeal process which can take up to 34 weeks to be concluded) for the benefit sought: a short-term visit to family in the UK. Greater priority should be given to appeal cases that have far-reaching impacts for the individuals concerned and for the public at large, for example asylum claims, settlement applications and the deportation of foreign criminals. [15]

According to the Home Office's analysis of consultation responses, 39% of respondents did not think that full rights of appeal should be retained for family visitors (39% of individuals and 35% of organisations who responded). 28% felt that they should (27% of individuals and 47% of organisations). 33 per cent did not comment. [16]

In May 2012 the Government confirmed that it intended to abolish the right of appeal in family visitor visa cases through the Crime and Courts Bill. [17]

3 The counter-arguments, and Government's response

Several common themes emerged in responses to the proposal to abolish family visitors' full appeal rights during the consultation period and Crime and Courts Bill's passage through Parliament. [18]

3.1 Refused applicants should be given an opportunity to 'clear their name'

Supporters of family visitor visa appeal rights argued that it is important for refused applicants to be given an opportunity to 'clear their name', so as to avoid future applications being prejudiced by a previous refusal decision. [19] This is particularly relevant if an application has been refused under one of the Immigration Rules' 'general grounds for refusal', because these have serious consequences for future applications. [20] For example, if an applicant is alleged to have used deception in an application, future applications may be refused for up to 10 years. [21]

Lord Avebury tabled an amendment at Lords Committee stage of the Crime and Courts Bill which would have allowed refused family visitor visa applicants to retain a right of appeal, if they were refused under the 'general grounds for refusal'. Lord Henley (then Home Office Minister of State) argued against the amendment (which was subsequently withdrawn), reasoning that "Such an approach would, in effect, be rewarding criminality or dishonest behaviour". [22]

The Government has rejected the idea that refused applicants without a right of appeal are placed at a disadvantage in future applications. It has stated that all refused applicants receive written reasons for the refusal, and may reapply as quickly and often as they wish. Each application is treated on its own merits and is not prejudiced by a previous refusal decision, provided that deception was not used. Where a previous application has been refused under a general ground for refusal, Government Ministers have said that it is open to the applicant to explain why the previous refusal was not justified, and the new application will be given "full consideration". [23]

3.2 The quality of decision-making is not good enough

Reflecting longstanding concerns about the quality of decision in immigration (including visa) cases, concerns were raised during passage of the Crime and Courts Bill that abolishing family visitors' rights of appeal would be premature and would reduce visa posts' incentives to improve. [24]

The Independent Chief Inspector of Borders and Immigration has published several inspection reports about the work of visa sections overseas. Some of these have specifically considered the quality of decision-making in family visitor visa applications. [25] For example, his 2011 report into cases handled by the visa section in New York found that out of 72 family visitor visa applications reviewed by the Inspectorate, 19 (26%) failed one or more decision-making quality indicators. Other errors that he has frequently identified include Entry Clearance Officers disregarding or misinterpreting evidence submitted; adopting an inconsistent approach towards similar cases; and making erroneous decisions on appeal rights. He has also raised concerns about the effectiveness of the 'administrative review' system, through which visa decisions are reviewed by Entry Clearance Managers. [26]

The Government has said that it has fully implemented all of the Chief Inspector's accepted recommendations for entry clearance operations. [27] The Independent Chief Inspector's Annual Report 2011-12, published in November 2012, recognised that over the previous year he had seen "some significant improvements in processing visa applications and implementing my previous recommendations", but cautioned that further improvements were needed in order "to ensure that decision-making is accurate, consistent and fair across each of its visa posts." [28]

Speaking in Public Bill Committee for the Crime and Courts Bill, Damian Green, former Immigration Minister, referred to some of the action being taken to improve the quality of decision-making, such as regular workshops for entry clearance staff. [29]

3.3 The application process should be more user-friendly

Various stakeholders suggested that there might be fewer appeals in family visitor visa cases if prospective applicants were given clearer guidance about what information to provide in their initial application. [30] The Government has said that action to make the visa application process more user-friendly is being taken, such as by publishing guidance to family visitor visa applicants on what types of supporting documents to include, and translating visa guidance into other languages. However, it considers that ultimately it is applicants' responsibility to ensure that their application is properly prepared, and it is up to them to decide which particular pieces of supporting evidence are appropriate for their case. [31]

A related criticism is that applications are sometimes refused because the applicant failed to provide information or evidence that they could not have known in advance was expected, and were not given an opportunity to provide. The Independent Chief Inspector of Borders and Immigration has condemned this practice as unfair. [32] In response, the Home Office confirmed that staff should not refuse non-points based system visa applications for failure to provide specific documents. [33] It also said that there are circumstances in which staff will give applicants an opportunity to submit an additional piece of evidence prior to a decision, if they consider that they are likely to meet the requirements of the Immigration Rules as a result.

However, the Government was not in favour of amendments to the Crime and Courts Bill tabled by Labour, which sought to introduce a requirement for Entry Clearance Officers to communicate with visa applicants during the application process. [34] These were intended to ensure that applications would not be refused (without a right of appeal) for minor reasons which could be easily rectified through contact between the applicant and decision-maker. The Government argued against the amendments, saying that they would put a "significant resource burden" on staff.

3.4 High success rates at appeal reflect flaws in the handling of cases

During passage of the Crime and Courts Bill, the Government provided the Joint Committee on Human Rights with figures for the recent success rate for family visitor visa appeals:

• In 2010–11, 38% of such appeals determined were successful (22,400 out of 58,600 appeals determined).

• In 2011–12, 32% of such appeals determined were successful (15,100 out of 47,200 appeals determined). [35]

Government analysis suggested that a considerable proportion of family visitor visa appeals succeeded because the applicant submitted additional evidence which was not available to the initial decision-maker:

Analysis of a sample of 363 allowed family visit visa appeal determinations received by the UK Border Agency in April 2011 showed that new evidence produced at appeal was the only factor in the Tribunal's decision in 63 per cent of allowed appeals. (Such new evidence was one of a combination of factors in the Tribunal's decision in 92 per cent of allowed appeals). 29 per cent were allowed because of new evidence and a combination of other factors, including the applicant being found credible and interpretation of the rules. The remaining 8 per cent were allowed because of factors which did not include new evidence. [36]

Admissible evidence for entry clearance appeals must relate to circumstances up to the date of the refusal decision (rather than the date of the appeal hearing). [37] This means that the visa post (and Immigration Judges at appeal) can consider 'additional evidence' submitted by an applicant post-refusal if it relates to the circumstances at the time of the initial decision (such as a bank statement showing that sufficient maintenance funds were in place at the time), but not 'new evidence' relating to circumstances after the refusal decision had been made (such as further funds which became available after the refusal decision).

The Government argued that submitting additional evidence at appeal stage is a 'misuse' of the appeals system, and that it would be quicker and cheaper for prospective family visitors to provide such evidence in support of a new visa application rather than pursuing an appeal. [38]

On the other hand, ILPA, the immigration law practitioner's association, contended that there are often valid reasons why applicants submitted additional evidence at appeal stage - for example, because vague reasons for refusal were given initially, and the visa officer's reasons for refusal only became apparent at appeal stage. [39]

The Joint Committee on Human Rights called on the Government to provide Parliament with evidence of the proportion of appeals which succeeded as a result of new evidence which the applicant should have provided with the initial application, rather than evidence which was required due to UKBA error. The Committee concluded that it could not support the Government's proposals to remove the right of appeal whilst the success rate of family visitor visa appeals remained so high. [40]

3.5 Certain communities will be particularly affected

In July 2011 the Home Office published a research paper to accompany its Family migration consultation. [41] This included some management information about the volume and outcome of family visitor visa applications in 2010.

Pakistan, India, Nigeria, Bangladesh and Iran were the five nationalities with the highest volume of refused family visit visas in 2010.

A slightly different list of countries had the highest proportion of refused applications:

Table 31: Top five nationalities refused family visit visas as a proportion of applications received from that nationality, 2010

	Percentage of applications refused
Pakistan	48%
Zimbabwe	46%
Afghanistan	42%
Uganda	39%
Bangladesh	38%
Only includes nationalities with an application volume of at least 1,000

Stella Creasy MP, speaking on behalf of the Opposition at Committee Stage of the Crime and Courts Bill, referred to the figures and contended that abolishing family visitors' appeal rights would have a particular effect on certain communities in the UK. [42]

3.6 Using appeal fees to reduce appeal processing costs

Charges for appealing to the First Tier Tribunal (Immigration and Asylum Chamber) came into effect on 19 December 2011. [43] The fees are £80 for paper appeals and £140 for oral appeals. There are exemptions to the fees in certain limited circumstances (such as when the appellant is in receipt of legal aid). [44]

The Home Office impact assessment for removing the full right of appeal stated that although the introduction of appeal fees was expected to reduce the cost of appeals to the taxpayer, from £590 to around £470 per case, the cost would remain "disproportionately high". [45] The then Minister for Immigration, Damian Green, rejected a suggestion that appeal fees be increased to make the system self-financing, on the basis that only "particularly affluent" appellants would be able to afford them. [46]

4 Statistics: Applications and allowed appeals, 2008 - 2012

Numbers of family visitor visa applications, refusals and successful appeals in recent years were provided in response to a Parliamentary Question in January 2013:

Meg Hillier: To ask the Secretary of State for the Home Department how many family visitor visa applications there were in each of the last five years; how many were refused in each year; and of those refused how many were allowed on appeal in each year.

Mr Harper: The data on the number of applications and refusals are available from the UK Border Agency management information and are provided in the following table.

Visit—family visit
	Applications	Refusals
2008	414,708	114,913
2009	426,785	112,419
2010	423,047	89,341
2011	444,373	85,151
2012(1)	315,458	66,534
(1) 2012 figures are for applications received up to September 2012.

This data is based on internal UK Border Agency management Information. It is provisional and subject to change.

The data on allowed appeals as provided in the following table are available from published statistics.

First-tier tribunal (immigration and asylum chamber): Family visit visa statistics
Time period	Allowed
2008	23,200
2009	26,300
2010	25,600
2011	16,800
January-September 2012	7,900

Figures in the tables have been rounded independently. The following convention has been used: Values of 1,000 and over are rounded to the nearest hundred. [47]

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(End)

[1] HC 395 of 1993-4 (as amended), paragraphs 41-46

[2] Namely, settlement and dependant applications (including points-based system dependants), EEA family permits, overseas domestic workers, UK Ancestry, Representatives of overseas businesses and ECAA business persons: UKBA, Entry Clearance Guidance, APL 3.1 (accessed on 2 July 2013)

[3] Crime and Courts Act 2013 (Commencement No 1 and Transitional Saving Provision) Order, SI 2013/1042

[4] Home Office, Entry Clearance Guidance, VAT02 'Visiting family', VAT 2.2 (accessed 2 July 2013)

[5] Home Office, Impact Assessment HO0070 Restricting the Right of Appeal for Family Visitors to the UK, 29 March 2012, p.2

[6] PBC Deb 5 February 2013 c355

[7] UK Visas and Immigration is one of the Home Office directorates replacing the now abolished UK Border Agency.

[8] UK Visas and Immigration, Family visit visas information fact sheet for Members of Parliament acting on behalf of their constituents (undated; accessed on 27 June 2013)

[9] Home Office, Entry Clearance Guidance, VAT02 'Visiting family', VAT 2.2 (accessed 2 July 2013)

[10] UKBA, Entry Clearance Guidance, APL4.1 (accessed on 27 June 2013)

[11] UK Visas and Immigration, Family visit visas information fact sheet for Members of Parliament acting on behalf of their constituents (undated; accessed on 27 June 2013)

[12] For example, a piece of supporting evidence which was mistakenly overlooked.

[13] s23, Immigration and Asylum Act 1999 (as amended by section 4(2) of the Immigration, Asylum and Nationality Act 2006)

[14] UKBA, Family Migration: A consultation, July 2011 paragraphs 1.22 - 1.24 (references omitted)

[15] UKBA, Family Migration: A consultation, July 2011 paragraph 1.26 (references omitted)

[16] Home Office, Family Migration: Response to consultation, June 2012

[17] Home Office news release, 'Scrapping family visitor appeal rights will save millions', 12 May 2012

[18] For background briefings on the Bill, see Library Research Paper 13/4 Crime and Courts Bill, pp65-67; Research Paper 13/18 Crime and Courts Bill [HL]: Committee Stage Report, pp24-25

[19] ILPA, Briefing on House of Lords Committee Stage Crime and Courts Bill Clause 24, 8 June 2012

[20] Immigration Rules (HC 194 of 1993-4 as amended), Part 9

[21] Immigration Rules (HC 194 of 1993-4 as amended), para 320 7B

[22] HL Deb 4 July 2012 c697-8

[23] HL Deb 4 July 2012 cc697-8

[24] HL Deb 4 July 2012 c695

[25] See, for example, Entry Clearance Decision-Making: A Global Review, 19 December 2011; An Inspection of the UK Border Agency Visa Section in New York, 19 December 2011; An inspection of the UK Border Agency visa section in Amman, Jordan, 17 March 2011

[26] These concerns have been shared by others: see, for example, HL Deb 4 July 2012 cc691-2

[27] Explanatory Memorandum to SI 2012/1532, paragraph 8.3

[28] Independent Chief Inspector of UKBA, Annual Report 2011-12, 8 November 2012

[29] PBC Deb 5 February 2013 cc349-50

[30] Home Office, Family Migration: Response to consultation, June 2012, p. 23

[31] HL Deb 12 December 2012 c1093GC

[32] Independent Chief Inspector of Borders and Immigration , A comparative inspection of the UK Border Agency visa sections that process applications submitted in Africa: Nairobi, Abuja, Pretoria and the UK Visa Section, May - July 2011, 14 June 2012

[33] UKBA, The UK Border Agency Response to the Independent Chief Inspector's Report: A comparative inspection of the UK Border Agency visa sections that process applications submitted in Africa: Nairobi, Abuja, Pretoria and the UK Visa Section, May - July 2011, 14 June 2012

[34] See, for example, HL Deb 12 December 2012 c1093GC

[35] Joint Committee on Human Rights, Legislative Scrutiny: Crime and Courts Bill, HL Paper 67/HC 771, 26 November 2012, para 79

[36] UKBA, Family Migration: A consultation, July 2011 para 7.7 (references omitted)

[37] UKBA, Entry Clearance Guidance, APL 7.5 (accessed on 2 July 2013)

[38] Home Office news release, 'Scrapping family visitor appeal rights will save millions', 12 May 2012

[39] ILPA, Briefing on House of Lords Committee Stage Crime and Courts Bill Clause 24, 8 June 2012

[40] Joint Committee on Human Rights, Legislative Scrutiny: Crime and Courts Bill, HL Paper 67/HC 771, 26 November 2012, para 83

[41] Home Office, Occasional Paper 94 Family migration: evidence and analysis, 2nd edition, July 2011

[42] PBC Deb 5 February 2013 c344

[43] The First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011, SI 2841/2011

[44] SI 2841/2011, r9

[45] Home Office, Impact Assessment HO0070 Restricting the Right of Appeal for Family Visitors to the UK, 29 March 2012 p.1

[46] Home Affairs Committee, Immigration Policy, HC 493-i, 18 September 2012, Q71-71

[47] HC Deb 24 January 2013 cc429-430W