As part of the coalition’s plans to cut family migration to the UK genuine family visitors will no longer be able to appeal the decision to refuse them entry to the UK to visit their family members in the UK.
Last year the government drafted legislation to restrict certain family members from being classed as visitors and in July 2013 they will stop those family members who can still be classed as visitors from appealing negative decisions made by overseas embassies. This will bring family visitors in line with other categories of visitors to the UK such a business visitors and general visitors and restrict their right of appeal.
The current system allows those people whose applications have been refused often on spurious grounds to appeal to the first tier tribunal in the UK. Often the sponsoring family member will be able to go before an independent judge along with their legal representative in the UK to show how they meet the requirements. The independent judges then consider the evidence which was submitted as well as the live oral evidence of the Sponsor and more often than not overturn the original decisions on the grounds that they are satisfied that they were met in the first instance.
Post July 2013 this will not be possible. Our experience is that even perfectly prepared application packs are ignored by officials in overseas Embassies meeting targets overseas and the decisions are made hastily, improperly and even unlawfully without full consideration of the merits of the case or the documentation submitted. As such the right of appeal was crucial to obtaining a lawful decision. Officials are now saying that Applicants must keep applying to address the Entry Clearance Officers concerns. This may never be done as their starting point is “how can we find a way to refuse this application?”. Often refusing on the ground that they don’t intend to return, a notoriously difficult concept to prove.
The only recourse for Applicants to appeal will be on a narrow basis which asserts that the decision is in breach of the UK’s obligations under the European Convention or on Race Relation grounds. This in itself will not lead to the decision being overturned.
A further recourse is by way of Judicial Review which is a very costly and lengthy exercise and asserts that the Government body making the decision has acted unfairly or irrationally.
The decision which is according to the government a money saving exercise, is in our opinion an attack on genuine family members right to a fair trial and in breach of their right to a family life. Our advice is if your family members are planning a visit to the UK then apply soon so that they can benefit from a full right of appeal whilst it still exists.