The Immigration Act 2014 removed the right of appeal to the Immigration Tribunal for a very large proportion of visa applicants. Applicants in most visa categories whose applications have been refused now only have the right to “administrative review”, which is an exercise carried out by the Home Office or British Embassy, and which is much less deep and thorough than an appeal to the Tribunal.
But the new regime has created some legal anomalies which have caused immigration lawyers to put their thinking caps on.
According to the 2014 Act, the only categories of application which still have the right of appeal to the Tribunal are applications under human rights and asylum. (The right of appeal for applicants who have applied under European law still remains, because this is governed by European law, not British law.)
However, the Immigration Rules written and published by the Home Office (which have a lower status than Acts of Parliament) say something rather different. They say that certain categories of visa applicant (eg spouses, civil partners, unmarried partners, fiancé(e)s) also have the right of appeal to the Tribunal, and they do not have the right of administrative review.
But on what basis exactly can the appeal be brought? The relevant part of the 2014 Act says quite specifically that the appeal can only be based on human rights or asylum. But of course an application such as a spouse visa application might have been refused on the basis of some technical issue, such as there not being sufficient funds for financial maintenance or that the English language requirement had not been met. These are not human rights issues; they are technical issues under the Immigration Rules.
But apparently the appeal process can only deal with human rights issues, not issues under the Immigration Rules. So does this mean that any refusals under issues of the Immigration Rules cannot be dealt with at an appeal? If so, it seems very unfair, because with other visa categories refused under the Immigration Rules issues under the Immigration Rules can be dealt with under the administrative review process. So the two situations seem to be anomalous.
Recent caselaw from the Immigration Upper Tribunal seems to suggest that issues under the Immigration Rules can possibly be brought into play in a human rights appeal, and so we will have to see how things develop at the Tribunal and the courts.
