The Government has been busy over the last few years eliminating appeal rights (ie the right to appeal to the Immigration Tribunals) for unsuccessful visa applicants. This, we presume, is part of the general policy of limiting and restricting immigration. But whether it is a fair method of doing so is a bit of a question. As people such as ex-barrister Tony Blair have pointed out, if there is no right of appeal then decision-makers may be more careless and carefree in their decision-making.
In any event, in the next few weeks full appeal rights will disappear for most categories of visa applicant. Apart from cases involving asylum, human rights, removal/deportation or European law there will be very few categories remaining that retain the full right of appeal.
But this is not to say that refusal decisions will not be capable of being challenged. Some categories of visa refusal will have or will retain the right of “administrative review”, which is a process by which the decision-making immigration authority reviews the refusal decision made by the decision-making immigration authority. One would not have to be a distinguished professor of law to spot the potential incestuous weakness of such a process.
But there will still be oversight by the tribunals and courts in the form of “judicial review”. Judicial review, which is carried out by the Immigration Upper Tier Tribunal or, in some cases, the High Court, is a process similar to an appeal but not the same. The reviewing Tribunal or Court can declare that a decision was arguably wrong or unlawful, and can direct the decision-maker to retake the decision but this time in the correct way. Only rarely would the reviewing Tribunal or Court substitute its own decision for that of the decision-maker – whereas an appeal tribunal frequently does. However, judicial review can only be applied for when all other avenues of challenge have been exhausted.
So judicial review is a more cumbersome process than appeal and, very importantly, it does not automatically extend immigration leave in the same way that the appeal process does.
But some applicants may have no other choice if they want to challenge an immigration decision and, for this reason, judicial review is likely to become more used than it is at present.