Opinions of Tue, 7 Aug 20184
Refused a UK visitor’s visa: To make a fresh application or to challenge the refusal?
Currently, there’s no right of administrative review or appeal when you are refused a UK Visitor’s visa. Under certain limited circumstances when a refusal violates your human rights, you may be able to appeal against a UK Visitor’s visa refusal—and that’s all.
From the outside, the Entry Clearance Officers at the Home Office seem to be unaccountable to anyone, and their decisions which are mostly unpredictable when it comes to Visitor’s visas get a lot of people who are refused upset. But every public officer or body is accountable to someone in the UK, mostly to a court.
Apart from being disappointed or upset when refused a UK Visitor’s visa, a lot of people become confused when they receive their refusal notice—sometimes, torn between either to make a new application or to completely forget the visa and try again at a later date.
What a lot of people do not know is that there’s a third option when you are refused a UK Visitor’s visa, and that is to consider challenging the refusal—if the refusal is ‘unreasonable’.
When it comes to UK Visitor’s visa, there are a few mandatory documents required as part of the application and even if all these documents are presented, the existing broad discretion accorded the Entry Clearance Officers (ECOs) means your application can still be refused, on the back of the ECOs’ poor judgment, inability to properly comprehend the presented documents, factual errors or wrongful application of the applicable law, Appendix V of the Immigration Rules.
Why re-application is sometimes a bad idea
Apart from the money involved, if an ECO has refused your application and you believe this was done unreasonably or that he has failed to properly consider the presented evidence or did not understand the facts, making a fresh application sets you off on a bad foot.
If you make a fresh application after a refusal, your new application would be considered in light of the previous refusal. It is as if you are starting with a negative tick against your name. Therefore, whoever will be assessing your new application starts from the previous refusal, and you are likely to be refused again if the old concerns are not properly addressed, and even if addressed, new ones may always crop up.
It must be understood that the more refusals you concede against your name, the less likely it’s that you will be issued a visa as you would have to, at every time address all the concerns in the previous refusals and this muddies your credibility or “genuine intention” in the estimation of the ECOs.
When you should not re-apply but challenge the refusal
Though there is no right of administrative review or appeal when it generally comes to UK Visitor’s visa, there is a legal route that can be taken to challenge refusal decisions, called Judicial Review.
Judicial Review is used to challenge the lawfulness of a decision made by public bodies and officers including the Home Office and it workers—and by this, a judge will consider whether the applicable laws or Immigration rules have been correctly applied and the right procedures have been followed.
To establish if a Visitor’s visa refusal decision was unlawful, and therefore Judicial Review should be used to challenge it instead of re-applying, these factors must be considered:
Has the ECO correctly applied the relevant law as set out in Appendix V of the Immigration Rules?
Is the decision in accordance with the Home Office published policy on visitors' visa?
Has the ECO taken into account all material considerations/ evidence?
Has the ECO taken into account immaterial considerations?
Has the ECO made a factual error? Has the ECO provided sufficient reasons to enable you to effectively challenge the refusal decision or to reapply?
Is the decision Wednesbury unreasonable, i.e. so unreasonable that no reasonable decision-maker, acting reasonably, could have made the decision?
I recently had a client who presented a pound sterling account in Ghana for a Visitor’s visa among other documents. Because, the bank account was from Ecobank Ghana, the ECO assumed it was a cedi account without properly looking at the currency and proceeded to convert the pounds’ balance (assuming it is cedis) into pounds again—and concluding that this person did not have sufficient money to cover the cost of her trip to the UK.
If the client had 5000 pounds, the ECO took this for 5000 GHS and converted it into pounds to arrive at 800 pounds.
Looking at the above, it’s clear the ECO erred in his assessment of the evidence, leading him to a wrongful conclusion and hence the refusal.
While re-applying to explain this to the next ECO who will assess the new application may seem appropriate, challenging the refusal on the basis that a material fact or evidence was wrongly considered is more prudent in law.
How to challenge a visitor’s visa refusal
I have had clients who have sent out E-mails to the UK High Commission, Embassy or the Home Office directly in relation to the Visitor’s visa refusal—under the impression they are doing so to challenge the refusal.
The above is a waste of time: these E-mails do not amount to a legal challenge and if you are lucky, you will receive a response telling you exactly this or you wouldn’t get any response at all, meaning, they are telling you to probably ‘piss off’.
As mentioned, you can only mount a proper challenge via Judicial Review (JR) and to do this, you will first have to follow the requirements of the Civil Procedure Rules (CPR) by issuing a letter before claim.
A lot of time when an ECO’s decision is challenged properly and in the proper legal manner, the Home Office grabs that opportunity the letter before claim offers to reconsider their own decision. The grounds of challenge are then reviewed by an Entry Clearance Manager (ECM) who may overturn the decision of the ECO.
If the Home Office after reviewing the decision at a senior level maintains the refusal or fails to respond, then a Judicial Review claim can be lodged at the Upper Tribunal. Once this is lodged, the Government Legal Department, acting on behalf of the Home Office will step in to review the decision in light of your JR application once again. If they also maintain the refusal decision, then a judge will decide on the case.
The process of Judicial Review is complex—and dealing with a bureaucratic government department like the Home Office even makes it more confusing.
Hence, employing the services of expert Immigration Caseworkers or Solicitors such as those at Fortwell Solicitors who are familiar with the process of challenging visa refusals is not really an option but somewhat a necessity.
Note that, you can only challenge Visitor's visa refusal decisions made in the last 3 months.
If you have recently (in the last 3 months) been refused a UK visitor visa, and you want to challenge the decision, we are able to do this for you at Fortwell Solicitors. You can call us via +442033257030 or +447837576037 (Direct/Whatsapp) and ask for Vincent.