This relates to UK Visa Judicial Review and explains the meaning and purpose of Judicial Review and how it can be helpful in challenging Immigration Refusal Decisions, especially when there is either no right of appeal or limited right of appeal is stated in the refusal letter. The section relating to Judicial Review UK Visa Refusal explains how JR is different from an immigration appeal, how point based applicants such as Tier 1 Entrepreneur, Tier 2 Workers and Tier 4 can file a JR after the refusal of an Administrative Review, the implications of JR for different types of UK visit visa refusals such as Family, Business, General Tourist Visa Refusal, lastly post explains How to Remove 10 Year Ban?
What is the Purpose of Judicial Review UK?
Judicial review is a type of a court proceeding in which a judge examines the lawfulness of a decision or action executed by a public body.
In other words, judicial review is a challenge to the way in which a determination has been given, rather than the rights and wrongs of the outcome reached. It is not really concerned with the outcomes of that process and whether these were ‘right’, as long as the right procedures have been followed. The tribunal will not substitute what it deems is the ‘correct’ decision.
This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way. If someone wants to argue that a decision was incorrect, judicial review may not be the best option. There are alternative remedies, such as appealing against the ruling to a higher court.
Judicial Review has a very broad context and it can be used to challenge a UK Visa and Immigration Refusal Decision of the Immigration Authorities and Immigration Appellate Authority.
Judicial Review UK Visa Refusal
Judicial Review is one of the potent recourse in the following situations relating to UK Visa Refusals and Bans:
Appeal Vs Judicial Review
The Judicial Review questions the “Correctness of the Procedure” that has been adopted to reach a “Decision”; whereas an APPEAL questions the “Rightfulness of a Decision” i.e. whether a decision was Right or Wrong.
The right of appeal against a UK Visa and Immigration Refusal is not ubiquitous i.e. an appeal can only be filed against an appealable refusal decision; whereas, Judicial Review can be filed against nearly all types of UK Visa and Immigration Decisions, provided that there are sufficient grounds to prove that correct procedure has not been adopted for reaching a refusal decision.
Administrative Review Leading to a Judicial Review
Administrative Review, which is a peer-group review, against a refusal decision is allowed in some instances e.g. an applicant can file an administrative review if a Tier 1 Entrepreneur Application or Tier 4 Student Application has been refused within 28 days of the refusal decision i.e. 28 days from the receipt of the refusal letter.
For these types of refusal decisions pertaining to Point Based System (PBS) Tier 1 Entrepreneur, Investor, Graduate Entrepreneur, Exceptional Talent, Tier 2 Workers, Tier 4 Students and Tier 5 Temporary Workers, an Administrative Review should precede a Judicial Review i.e. it is not appropriate to directly file a Judicial Review. However, in case of such types of applications where there is either no provision of an administrative review or no right of appeal such visitor visas, the applicants need to file a Pre-action Protocol (PEP) before a Judicial Review.
UK Visit Visa Refusal
Most of the applicants after getting a UK visa refusal letter point out the discrepancies that have been made by the immigration officer in the Refusal Decision. However, very few applicants bother to file a judicial review for reconsideration. Judicial Review can be a viable recourse, for a UK Visa and Immigration Refusal Decision, in most of the cases, especially in those cases where applicants have received more than a couple of successive refusals and think that they were denied a visa without following the proper procedure.
Visiting the UK for family, business and tourism is quite a significant and frequent purpose for most of the applicants. Therefore, it is recommended that after successive refusals applicants may consult an authorised and specialist immigration solicitor for filing a Judicial Review. Like an Appeal case, usually, the turnover/processing time for a Judicial Review is around 6-8 months.
UK Family Visitor Visa Refused
Prior to June 25, 2013, appeals were allowed for refusals of UK Family Visitor Visa Application. Accordingly, many family visitors after getting the refusal used to file either an oral or written appeal.
After June 25, 2013, and especially after April 15, 2015, with the removal of even a limited right of appeal against a UK Visa Refusal, the applicants have no other legal recourse apart from filing a Judicial Review after the receipt of a refusal decision.
Business Visit Visa Refusal
Many prominent businesspersons, who have travelled across the globe have often faced with an adverse decision on their UK Visitor Visa Application due to their inability to satisfy the Entry Clearance Officer (ECO), in a befitting manner so as to clarify their purpose and intentions of visiting the UK for business purpose.
Therefore, after receiving more than one refusal decision, it is better to discuss with a professional immigration solicitor/adviser before reapplying. At times, it is expedient to file a judicial review rather than submitting a fresh application and making the same mistakes.
General Tourist Visa Refusal
These types of visitor visas are usually refused because of the inability of the applicant to make his/her intentions, circumstances and reasons of visiting the UK clear in his/her visit visa application. Therefore, it is not possible for the evaluating officer to grant a visa as the onus of proof is on the applicant and the decision is based on a balance of probability for which an applicant is required to give a compelling evidence. Therefore, it is better to hire the service of an able immigration solicitor/consultant before reapplying. Depending on the quality of previous visit visa application, the immigration solicitor might give the advice to file a judicial review instead of reapplying.
Judicial Review Against a Tier-1 Entrepreneur Refusal Decision
The refusal letter of Tier-1 Entrepreneur clearly provides for an Administrative Review. However, if the Administrative Review is not successful, then an applicant can file a Judicial Review.
Since unlike a visitor visa application, usually, Tier-1 Entrepreneur Applicants usually don’t reapply after their first refusal. Therefore, the implications of filing a judicial review are more profound after the receipt of a rejection decision on a Tier-1 Entrepreneur Application, and it is the recommended action – especially if the applicant is convinced that the evaluating officer has committed a mistake of the procedure.
UK Immigration 10 Year Ban | How to Remove 10 Year Ban?
A refusal u/s 320(7A) of the Immigration Rules and for visitors, under paragraph V 3.6 of Appendix V, contracts an automatic ten (10) year ban, and in the absence of any appeal rights, filing a Judicial Review is the only legal recourse available to an applicant in most of the cases such as all types of visitor visa and PBS (Tier 1, Tier 2, Tier 4 & Tier 5) applications.
Re-Entry Ban UK
If there is no right appeal then a judicial review can be filed against a re-entry ban. Here it is important to note that from April 6, 2017, changes have been made in the Immigration Rules relating to re-entry bans. Accordingly, after April 6, 2017, overstayers are required to leave within 30 days, previously the stipulated time was 90 days. If an individual fails to comply then he/she is usually subject to 12-month re-entry ban. For those overstayers, who are a spouse of a British Citizen there is an exemption to this end.