Refusal of visa could be disappointing and distressful. It can be even the more depressing where the applicant genuinely believes that he made an absolutely perfect application and that the reasons given for the refusal are unfounded or unreasonable. In many cases, the applicant may have been previously refused once or a multiple of times and the idea to apply again no longer looks as offering any realistic chance to get a good outcome. Our experience has shown that majority of UK visa applicants are unaware that there are opportunities and avenues to challenge every unlawful or inappropriate visa decision. This is eminently correct even where the Home Office advertises the half truth on the refusal letter that there is no right of appeal or of administrative review.
Administrative Review is a means by which an aggrieved visa applicant could seek a redress directly with the Home Office where the decision in question is eligible for such intervention. It is a process by which a dissatisfied visa applicant can demonstrate that the decision reached in his application was wrong because of a case working error. A successful demonstration of this would result in the withdrawal of the decision and the granting of visa or other appropriate relief. Case working error is broadly defined and includes where the decision maker applied the immigration rules incorrectly or failed to apply the applicable Home Office guidance or policy. The immigration rules set out the categories of applications for which the right to apply for administrative review is available but the easy way to know if it is available in a particular case is to examine the concluding part of the refusal letter because policy and guidance mandates decision makers to advise about whether the right of administrative review is available or not. In the event that administrative review is not available, a genuinely aggrieved applicant has other legitimate and viable avenues to pursue a relief and should seek the intervention of a fit and competent immigration advisor to consider the options.
The identification of a case working error and the ability to persuasively present the case within the limited space allotted is the hallmark of a competent advisor. The choice of an immigration attorney is therefore of critical importance and would invariably have a bearing on the outcome of the process. The integrity and track record of the advisor is of no less importance because a client needs to be properly guided and be advised about the futility of the process if the chance to succeed is simply not there. A client deserves to be told the truth where administrative review is unlikely to yield a positive outcome and be advised about other available alternatives.
An applicant has a 28 day window to submit the case and is generally not allowed to introduce new evidence or information that was not available to the original decision maker .
Where administrative review is unsuccessful, the decision being challenged will either be maintained in full or in part or the entire decision withdrawn and substituted with an entirely different decision. Where this happens, the applicant will be entitled to filling a new application for administrative review. An applicant needs to know that an official payment of £80 is required for this process but must not be discouraged especially as this fee is less than the visa fee that is payable to submit a new application.
On the whole, the author is of the opinion that where available, the decision to apply for administrative review must be carefully, honestly and professionally considered. Where a case working error is evident and the decision clearly unsustainable, then administrative review would be a good option. However where a case working error is neither here nor there, or if the perceived error would not be strong enough to invalidate the decision, the applicant must be advised to consider other available options.
It is important to point out that administrative review does not mean that the applicant has taken the Home Office to court. It is not so. It is neither a court case nor a case before any immigration Tribunal. It is simply a process by which an aggrieved applicant is asking the Home Office to take a second look at the decision on the basis that it was wrong or made in error. The applicant does not suffer any penalty for seeking for administrative review and the worst case scenario is to be told that the decision is maintained.
We will be able to advise a prospective client about the option of applying for administrative review or about other remedies to overcome the disappointment of any visa refusal.
Eddie Onyeka Esquire.