Managing Migration: The Points Based System - Home Affairs Committee Contents


8  Administrative review

142.  Prior to the introduction of the Points Based System, a person applying for entry in a work-related capacity would have had a right of appeal against refusal of that entry clearance.[161] Where a right of appeal existed, it was only against the refusal of entry clearance. The refusal by Work Permits UK to grant a work permit was not open to appeal, although applicants could submit fresh evidence and ask for reconsideration. Under the Points Based System the right of appeal is replaced by administrative review. See paragraph 39 for further detail on its operation.

143.  An administrative review can only be requested on point of fact: for example, did the entry clearance officer miss a document or incorrectly award too few points? The applicant is not able to submit any additional documentation. So, for instance, if the applicant only submitted a copy of their IELTS [English language] certificate and the guidance asks for the original document, they would be refused but could not provide the original in an administrative review. The applicant would have to reapply, pay a new fee and provide all the evidence that they should have submitted with the first application. The cost of making an application under the Points Based System ranges from £125 (Tier 5 temporary worker categories) to £1,020 (Tier 1 in-country application in person).[162] UK Border Agency officials in Delhi told us that around 15 per cent of refusals are overturned at administrative review.[163]

144.  The principal difference between administrative review and the right of appeal under the previous system is that one is a administrative/bureaucratic process, and the other a judicial one. The Minister for Borders and Immigration, Phil Woolas MP, argued that systematic abuse of the appeals system by some immigration lawyers and Non Governmental Organisations made the appeal system unworkable:

The evidence is there from the figures on the number of appeals, on the number of JRs [Judicial Reviews] that are applied for; on the way in which multiple applications can be made; on the way in which people are encouraged to further appeal and to JR when clear decisions have been taken, and often where the appeal has been refused.[164]

145.  Our witnesses were virtually unanimously against the replacement of the right of independent appeal with administrative review on a point of principle. Many viewed administrative review as effectively an internal review which lacked impartiality. John Cridland of the Confederation of British Industry considered that "it is a matter of natural justice that any process of this kind should have the ability to appeal".[165]Simeon Underwood of the LSE agreed that a right of appeal would be useful, and Professor Wellings of Universities UK added that "we should retain for visa refusals a right of appeal…it strikes us as being slightly perverse that you would not allow a right of appeal against a very new system where entry clearance officers were clearly having to make judgments that they have never been charged to make before".[166] Des Hudson of The Law Society unequivocally thought that "the principles of natural justice and rule of law, and therefore the process of law, make a right of appeal an absolute necessity".[167] Louise De Winter of the National Campaign for the Arts stated that "not to be able to appeal against a new system would be a little bit perverse".[168]

146.  The Immigration Advisory Service voiced disquiet:

We are deeply concerned at the removal of rights of appeal and the substitution of Administrative Review which, we believe, will require considerable clarification in the Administrative Court, and will create confusion and resentment.[169]

In a letter to the Chief Executive of the UK Border Agency, the Immigration Advisory Service argued that removal of appeal rights would generate an increase in judicial review, noting that there was

A widespread view that Administrative Review will not bring satisfaction in all cases where it is felt that the entry clearance officer made a wrong decision and we feel that this is likely to lead to an increase in applications for judicial review in the Administrative Court.[170]

147.  Others were concerned that a review carried out by a UK Border Agency colleague of the official making the original decision would not be impartial. A participant in our community roundtable discussion in Sylhet, Bangladesh, argued that a review carried out by an individual in the same organisation, and possibly the same department, as the person making the initial decision would compromise the impartiality of the review.[171] UK Border Agency visa staff in Delhi assured us that the review would be carried out by an official entirely unconnected with the initial application decision. Nevertheless, the Government acknowledges that administrative review is an internal process, with the Minister for Borders and Immigration, Phil Woolas MP, telling us that it "is an internal review". [172]

148.  Sophie-Barrett Brown of the Immigration Law Practitioners' Association suggested that the process was not robust:

Under the work permit scheme, two administrative reviews are permitted. It is a little bit of a running joke in immigration circles that you will always have a first review refused immediately, quite possibly your second, but if you actually telephone the manager to look at the case you will almost always get it overturned. So experience has taught us not to have confidence in administrative review.[173]

149.  The Points Based System relies heavily on applicants providing documentary evidence for the various attributes, such as bank statements and qualifications certificates. Problems with providing the required documentation in some parts of the world were mentioned during our Indian visit. Visa officials in Delhi told us that they had encountered difficulties with paperwork relating to salary in countries such as India and China, where it is not standard practice to pay salaries directly into employees' bank accounts. This meant that some applicants did not have the bank slips required to prove evidence of salary or maintenance.[174] The Joint Council for the Welfare of Immigrants was similarly exercised over the prohibition on submitting additional or clarifying documentation, criticising that under the system:

Innocent oversight cannot be made good by a commonsense approach that permits the submission of fresh evidence…experience shows that in most cases the right decision is promoted through the production of further evidence, the need for which is often not appreciated until notification of an adverse decision clarifies quite what material is perceived as inadequate by the entry clearance officer.[175]

The JCWI also noted that "whilst entry clearance decisions which do not attract a right of appeal are to fall within the remit of the Entry Clearance Monitor [now the Chief Inspector of UKBA], this is not a sufficient replacement for a full right of appeal, as the Monitor is not able to investigate individual complaints or provide an appropriate remedy to applicants".[176]

150.  We agree that an administrative review on objective criteria will be more transparent and easier to administer. However, requiring a new application and a fresh fee for failing to furnish the UK Border Agency with rigidly defined types of paperwork is palpably unfair. This is particularly the case for applicants from countries in which the use of documents such as payslips is not common practice. That some applicants are unable to meet the documentation requirements through circumstances beyond their control is apparent from our conversations with UK Border Agency officials in New Delhi. We therefore recommend that applicants should be able to submit additional documentation, if it is requested, without having to make an entirely fresh application and pay another fee.

151.  The Government should provide for an independent review of visa refusal cases under the Points Based System by the Chief Inspector of the UK Border Agency, but, in a departure from the current situation, the Chief Inspector must be given the authority to investigate individual cases, and the power to provide appropriate remedy to applicants. The Chief Inspector should also be asked to review visa applications that have been successfully granted to ensure that they were correctly issued.


161   Subject to certain general exclusions from the right of appeal, as set out in the Nationality, Immigration and Asylum Act 2002, Section 88 Back

162   UK Border Agency website, www.ukba.homeoffice.gov.uk/workingintheuk /  Back

163   Annex A [India and Bangladesh visit notes]  Back

164   Oral evidence taken before the Home Affairs Committee on 20 November 2008, HC 1199-I, Q 23 Back

165   Q 146 Back

166   Q 318 Back

167   Q 286  Back

168   Q 346 Back

169   Ev 151 Back

170   Ev 154 Back

171   Annex A [India and Bangladesh visit notes]  Back

172   Q 461 Back

173   Q 63 Back

174   Annex A [India and Bangladesh visit notes]  Back

175   Ev 245-246 Back

176   Ev 246 Back


 
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