The United Kingdom has in place an appeal system against the refusal of applications for entry clearance (visa) or in the case of those already in the country, further leave to remain or a variation of leave to remain. However the appeal system is all set to change today.
Late last year the government proposed an introduction to fee charges for appeals against adverse immigration decisions from October 2011 and a consultation was carried out. That consultation closed in January 2011. October 2011 came and went and some thought it was safe to exhale and then on Friday 9th December 2011 the UK Border Agency (UKBA) announced that the proposed changes will take effect from Monday December 19th 2011.
The changes are far reaching and will take many by surprise. The changes and details include the following:
· Charge a fee for appeals following refusal of an application. A proposed fee of £80 for paper appeals and £140 for oral hearings. These fees are payable by each individual appellant and so a family of 4, for example, will each pay a separate fee just as in the application
· All appeals refused outside the UK will be lodged in the UK thereby removing the previous option of lodging at the refusing post
· There will be no refund to an Appellant if the appeal is subsequently withdrawn, is out of time or invalid
· An Immigration Judge has the power to award costs against the UKBA to recover the lodgement fee if the appeal is successful but only where the decision to refuse is so clearly wrong and all the required information was submitted at the time of the decision
In 2000 the UK government introduced appeal fees for family visitor appellants but they were scrapped pretty quickly because they simply did not work. Ten years later the same idea was raised and extended not just to family visit appeals but almost right through all the categories, including settlement. Immigration appeals are currently wholly funded by taxpayers and the government wishes to reduce this substantial cost to the taxpayer and shift some of the cost burden to the users of the Tribunal system – immigration appeals are heard by the Immigration and Asylum Chamber (IAC) of Her Majesty’s Court and Tribunals System (HMCTS).
The details of the new system will be published today the 19th of December 2011 – when the changes come into effect, which act by itself, gives very little time for potential appellants and their representatives to familiarise themselves with a whole new system that also involves a fee.
The Response Paper published in May 2011 following the consultation gives an idea of what anyone who is faced with a refusal will have to contend with.
In the first place payment for the appeal will be taken before the appeal is processed. The government has stated that its preferred method will be by credit/debit card or by bank or wire transfer. For appellants outside the UK this may pose untold problems. As for the argument as to why appellants have to pay in order to lodge an appeal in the first place, the government’s position is that if they could pay a not insubstantial application fee and have had to show adequate funds for their maintenance in the UK, then they can pay the appeal fee. Third party payment will be acceptable and so those who have family or friends in the UK can hopefully count on them to make payment on their behalf.
The government’s decision to start what it describes as a single lodgement system whereby all appeals must be lodged in the UK does not appear to take into consideration that for many overseas appellants there will be the added difficulty of ensuring that appeals are safely and timeously lodged, given the cost and the vagaries of some countries’ postal systems. The argument is that all appeals will be collated in one place unlike the present double lodgement system which is unwieldy, creates duplication and takes more time. It is far easier for those who are appealing inside the UK as the postal system is reliable and appeals can be lodged by fax without the constant worry that the power supply will go off halfway through the process.
Considering that the refusal rate in Nigeria is relatively high at 31% (2010 figures) it is clear that anyone who is issued a refusal notice with a right of appeal will need to consider very quickly whether to appeal and if so, how best to do so, whether by post, courier or fax, whether by asking for a paper appeal which means the appeal will be considered by an Immigration Judge on the basis of the documents submitted and any written arguments put in support of the appeal or whether indeed to opt for an oral hearing which a sponsor or UK representative can attend. An Immigration Judge has discretion to decide whether an appeal should be considered on the papers or by way of an oral hearing regardless of the choice that has been made and paid for by an appellant. So if an appellant has paid for a paper hearing and the Immigration Judge prefers an oral hearing, no further fee will be paid by the appellant but if an appellant asked for and paid for an oral hearing and the Immigration Judge decides to deal with the appeal on the papers, a refund of the difference in lodgement fees will be made on application by the appellant.
The fact that an immigration judge can award costs against the UKBA on a successful appeal can only be a good thing because it means that a more robust and effective decision making process will be put in place since, with the new system, wrong decisions will cost the UKBA money. The UKBA will be unable to appeal against the award of costs alone except the substantive appeal goes further up the Tribunal chain in which case the issue of costs can be revisited and a decision made to uphold, vary or quash the order of the initial Immigration Judge. The Upper Tribunal can award costs against the UKBA in a further appeal even where no such award was made at the initial appeal hearing.
As stated above, more information about how these changes will be implemented will be published by the UK government today. The changes will only affect refusal notices issued from today and so for anyone whose application is refused before today, there is no appeal lodgement fee and the option to lodge the appeal with the refusing post or directly to the Tribunal in the UK is still available.
Late last year the government proposed an introduction to fee charges for appeals against adverse immigration decisions from October 2011 and a consultation was carried out. That consultation closed in January 2011. October 2011 came and went and some thought it was safe to exhale and then on Friday 9th December 2011 the UK Border Agency (UKBA) announced that the proposed changes will take effect from Monday December 19th 2011.
The changes are far reaching and will take many by surprise. The changes and details include the following:
· Charge a fee for appeals following refusal of an application. A proposed fee of £80 for paper appeals and £140 for oral hearings. These fees are payable by each individual appellant and so a family of 4, for example, will each pay a separate fee just as in the application
· All appeals refused outside the UK will be lodged in the UK thereby removing the previous option of lodging at the refusing post
· There will be no refund to an Appellant if the appeal is subsequently withdrawn, is out of time or invalid
· An Immigration Judge has the power to award costs against the UKBA to recover the lodgement fee if the appeal is successful but only where the decision to refuse is so clearly wrong and all the required information was submitted at the time of the decision
In 2000 the UK government introduced appeal fees for family visitor appellants but they were scrapped pretty quickly because they simply did not work. Ten years later the same idea was raised and extended not just to family visit appeals but almost right through all the categories, including settlement. Immigration appeals are currently wholly funded by taxpayers and the government wishes to reduce this substantial cost to the taxpayer and shift some of the cost burden to the users of the Tribunal system – immigration appeals are heard by the Immigration and Asylum Chamber (IAC) of Her Majesty’s Court and Tribunals System (HMCTS).
The details of the new system will be published today the 19th of December 2011 – when the changes come into effect, which act by itself, gives very little time for potential appellants and their representatives to familiarise themselves with a whole new system that also involves a fee.
The Response Paper published in May 2011 following the consultation gives an idea of what anyone who is faced with a refusal will have to contend with.
In the first place payment for the appeal will be taken before the appeal is processed. The government has stated that its preferred method will be by credit/debit card or by bank or wire transfer. For appellants outside the UK this may pose untold problems. As for the argument as to why appellants have to pay in order to lodge an appeal in the first place, the government’s position is that if they could pay a not insubstantial application fee and have had to show adequate funds for their maintenance in the UK, then they can pay the appeal fee. Third party payment will be acceptable and so those who have family or friends in the UK can hopefully count on them to make payment on their behalf.
The government’s decision to start what it describes as a single lodgement system whereby all appeals must be lodged in the UK does not appear to take into consideration that for many overseas appellants there will be the added difficulty of ensuring that appeals are safely and timeously lodged, given the cost and the vagaries of some countries’ postal systems. The argument is that all appeals will be collated in one place unlike the present double lodgement system which is unwieldy, creates duplication and takes more time. It is far easier for those who are appealing inside the UK as the postal system is reliable and appeals can be lodged by fax without the constant worry that the power supply will go off halfway through the process.
Considering that the refusal rate in Nigeria is relatively high at 31% (2010 figures) it is clear that anyone who is issued a refusal notice with a right of appeal will need to consider very quickly whether to appeal and if so, how best to do so, whether by post, courier or fax, whether by asking for a paper appeal which means the appeal will be considered by an Immigration Judge on the basis of the documents submitted and any written arguments put in support of the appeal or whether indeed to opt for an oral hearing which a sponsor or UK representative can attend. An Immigration Judge has discretion to decide whether an appeal should be considered on the papers or by way of an oral hearing regardless of the choice that has been made and paid for by an appellant. So if an appellant has paid for a paper hearing and the Immigration Judge prefers an oral hearing, no further fee will be paid by the appellant but if an appellant asked for and paid for an oral hearing and the Immigration Judge decides to deal with the appeal on the papers, a refund of the difference in lodgement fees will be made on application by the appellant.
The fact that an immigration judge can award costs against the UKBA on a successful appeal can only be a good thing because it means that a more robust and effective decision making process will be put in place since, with the new system, wrong decisions will cost the UKBA money. The UKBA will be unable to appeal against the award of costs alone except the substantive appeal goes further up the Tribunal chain in which case the issue of costs can be revisited and a decision made to uphold, vary or quash the order of the initial Immigration Judge. The Upper Tribunal can award costs against the UKBA in a further appeal even where no such award was made at the initial appeal hearing.
As stated above, more information about how these changes will be implemented will be published by the UK government today. The changes will only affect refusal notices issued from today and so for anyone whose application is refused before today, there is no appeal lodgement fee and the option to lodge the appeal with the refusing post or directly to the Tribunal in the UK is still available.
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