Family Visit Appeals and Appeal Fees in the Immigration and Asylum Chamber
“Overseas relatives of British families to lose visit visa appeal rights” reported the Guardian on 9 May 2011.
Following The Prime Minister’s speech on 14 April 2011 in relation to immigration, this is unwelcome but hardly surprising news. The government’s current policy is to cut immigration and as per the Prime Minister’s speech to cut it “substantially”. Inevitably by removing the right of appeal in family visit applications, not only is there seeming reduction in costs( as would be the government's case for removal of the right of appeal) but a real reduction in the number of those who seek to enter the UK via the family visit route. According to the Guardian, more than 80,000 relatives of British families are refused visit visas each year. However as a good number of those refused entry ultimately succeed at appeal, removing the right of appeal altogether goes some way in reducing the number of those entering the United Kingdom.
Currently applicants applying to visit their family members in the UK only pay a fee when they apply for leave to enter, however there is no fee applicable for lodging appeals in relation to decisions to refuse such applications.
The Immigration Rules( paragraphs 40 and 41 ) allow applicants abroad to apply for leave to enter as visitors where they have qualifying family members in the United Kingdom.
Section 90 (1)of the Nationality, Immigration and Asylum Act 2002 provides that a person who applies for entry clearance for the purpose of entering the United Kingdom as a visitor may appeal under section 82(1) against refusal of entry clearance only if the application was made for the purpose of visiting a member of the applicant’s family.
The definition of a member of the applicant’s family is wide.
Regulation 2 of The Immigration Appeals (Family Visitor) Regulations 2003 -SI 2003/518 provides:
“2.—(1) For the purposes of section 90(1) of the Nationality, Immigration and Asylum Act 2002, a “member of the applicant’s family” is any of the following persons—
(a)the applicant’s spouse, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or first cousin;
(b)the father, mother, brother or sister of the applicant’s spouse;
(c)the spouse of the applicant’s son or daughter;
(d)the applicant’s stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or
(e)a person with whom the applicant has lived as a member of an unmarried couple for at least two of the three years before the day on which his application for entry clearance was made.
THE GOVERNMENT’S DILEMA
Previous Governments not only sought to remove the right to appeal in family visit appeals but also introduced fees in relation to these types of appeals - ultimately without success. Under the Asylum & Immigration Appeals Act 1993, the Conservative government abolished the right to appeal in family visitor appeals. In opposition, the Labour Party promised to restore it. The 1999 Immigration & Asylum Act reinstated the right to appeal against the refusal of a visit visa. In July 2000, the Government issued a consultation proposing appeal fees of £280 (paper-only appeal) and £580 (oral hearing) when the new right of appeal came into force on 2 October 2000. The consultation resulted in negative reaction and a campaign against the fees from organisations such as the Citizens Advice Bureau on the grounds that it was discriminatory and created a barrier to justice that could not be justified. In light of such protests, the Government reduced the fees to £150 (paper-only appeal) and £500 (oral hearing). In November 2000 debates in both the House of Lords and House of Commons voiced similar concerns to those of the stakeholders. The Secretary of State for the Home Department defended the government’s decision in the Commons but agreed to an internal review of the new appeal mechanism. In January 2001 the results of the review were announced and the appeal fees were reduced further to £50 (paper-only appeal) and £125 (oral hearing). Stakeholders continued to challenge the fee, focussing on continuing low receipts and the disparity of success rates between oral and paper hearings. On 7 February 2002 the Home Secretary announced that he was minded to abolish fees and this was confirmed on 24 April 2002 with the fee subsequently set at zero from 15 May 2002.
The Citizen’s Advice Bureau’s successful campaign against the previous appeal fees in family visit appeals is set out in detail at http://www.citizens advice.org.uk/index/campaigns_success/family-visa-appeal-fees.htm.
The Guardian reported on 9 May 2011 that leaked Home Office policy papers revealed government plans to remove rights of appeal for family visitors. If the plans as reported by the Guardian are to be implemented, these plans come hot in the foot of the Government’s recent Consultation however in that Consultation the initial proposals focused on introduction of appeal fees not only for family visit appeals but also in relation to other immigration appeals generally.
THE CONSULTATION PAPER
In October 2010, The Ministry of Justice published a consultation paper on proposals to start charging fees for certain categories of appeals against adverse decisions by the UK Border Agency on asylum and immigration applications. The primary goal of the proposals was stated to be to reduce the subsidy currently provided by taxpayers.
The key appeal categories that the Paper proposed charging for included Family Visit Visas;Settlement appeals generated by people who are already in the UK and seeking to stay permanently; Non Settlement appeals generated by people who are already in the UK and seeking to stay longer than they are already allowed to; Entry Clearance Officer appeals in the Non settlement catergory; Entry Clearance Officer appeals in the Settlement catergory; Asylum Appeals including those that raise Human Rights grounds and European applications from EEA nationals and their family members. The paper also set out certain type of cases which would be exempt from paying appeal fees.
The Paper proposed to introduce fees of around £125 for oral hearings, £65 for paper hearings in the First-tier Tribunal and £250 in the Upper Tribunal.
The Paper also observed that in order to avoid some of the practical problems said to have been associated when the previous government introduced appeal fees for family visit visas, the current Government considered it necessary to move to a system of single lodgement of appeals in the UK for out of country appeals.
The Government’s stated intention as per the Consultation was that all appellants wishing to appeal against a decision should pay a fee, including dependents and children. It was therefore proposed that a fee would be charged for each separate appeal, even if the cases are linked and dealt with at the same hearing.
GOVERNMENT’S RESPONSE TO THE CONSULTATION EXERCISE
The Government‘s response to the consultation exercise was published on 9 May 2011 and can be summarised as follows:
1. To introduce a power for the Tribunal to award costs to successful appellants up to the amount of any fees paid- a discretionary power for the judge in a case to award costs to recover appeal fee charges against UKBA.
2 To withdraw the proposal to charge fees in the Upper Tribunal Immigration and Asylum Chamber, however, the government states that as part of their annual review of fee levels, they may revisit that proposal again in the future.
3. To expand exemptions criteria - in addition to confirming the exclusion of persons in receipt of section 95 asylum support, the exemption will also apply to those receiving section 98 support; the exemption will also apply in cases dealing with removal of illegal entrants and EU nationals and humanitarian protection cases. While appellants in asylum and humanitarian protection cases will be required to pay the fee if they can afford to, if they do not, the appeal will continue. The government has also decided to exclude from paying a fee any individual provided with services by a local authority under section 17 of the Children Act 1989 due to the particularly vulnerable nature of that group of people. Additionally, the Lord Chancellor will retain the power to waive the fee in exceptional and compelling circumstances. The government confirms that decisions with regard to deportation, removal, revoking a person’s leave to remain, or deprivation of citizenship or right to abode will not attract a fee. Asylum appellants in the UK Border Agency’s Detained Fast Track process will also be exempt from paying a fee.
4. To introduce a certification process to allow appellants, and/or their representatives in receipt of legal aid, to avoid paying the appeal fee up front
The Government intends to increase the costs of fees from those proposed in the original consultation. The government now proposes to set fees at £80 for paper hearings and £140 for oral hearings. Fee levels would be reviewed regularly as the fee system settles in and policy requirements change and therefore the Government will be setting appropriate review periods that are likely to coincide with UKBA review of visa application fees.
The government does not intend to change their policy regarding individual charging for lodging an appeal. The government consider that a system of single lodgement in the UK is likely to be more reliable than the dual-lodgement system. There is an intention to extend the ability to pay the fee to someone other than the individual bringing the appeal- flexibility will apply over who this may be, rather than limiting it only to a sponsor or legal representative. Fee payments are to be by debit/credit card, bank or wire transfer and by on-line payment, from appellants, or another person wishing to pay an appellant’s appeal fee on their behalf. In appeals where a fee is payable but is not paid, appellants will be given ample opportunity to pay a fee (or argue they ought to be exempt) before any action is taken by the Tribunal to dispose of an appeal for non-payment.
The government intends to implement fees in October 2011 for immigration and asylum appeals.
Although the Government acknowledges in their response that almost all respondents were in principle against the decision to impose fees in immigration and asylum appeal cases, the Government nonetheless intends to plough ahead with their main proposals.
REMOVAL OF A RIGHT OF APPEAL IN FAMILY VISIT APPEALS
If the Government’s plans as reported in the Guardian are underfoot, the concern in relation to family visit appeals becomes not whether an appellant will forgo a right of appeal where they have no means to fund the fee but that a refused applicant will in fact have no right to appeal. In such circumstances it becomes difficult to see how access to justice will be properly available. The rationale behind introducing appeal fees, including for family visit appeals as per the Consultation Paper, is to contribute to the costs of running the Tribunal. As the government intends to implement appeal fees in any case before the end of the year, preserving the right of appeal in family visit applications but subjecting it to an appeal fee as per the Consultation Paper seems to be the fair approach. This is more so where having regard to the Consultation Paper, the government believes that the proposals set out in that Paper addressed the concerns and criticisms of the previous system of charging fees which were abolished in 2002 in relation to family visit appeals. The practical problems in relation to the previous charging system in relation to family appeals are known and the Government believes that those problems can now be overcome. As with in- country fee applications, no doubt once the appeal fees are introduced they will be gradually increased each year. Therefore where it is viewed that the costs for family visit appeals are higher than any other catergory of immigration/asylum appeal, then slightly higher appeal fees should be set as opposed to altogether removing the right of appeal in family visit appeals.
Unfairness and injustice may arise where for example a close family member abroad is denied a right of appeal following an application to visit a British or settled relative who suffers serious ill health and is therefore unable to travel. Where the decision of an entry clearance officer is in error, the best chance of being allowed entry into the UK for a legitimate visit is where the Tribunal allows the appeal. Further in cases where the appeal does not proceed in full to be heard by an Immigration Judge in light of a concession by the Entry Clearance Manager, a review of the entry clearance officer’s decision by the Manager takes place where in fact the right of appeal is exercised.
One cannot help but also wonder whether if this right to appeal is removed, this would correspondingly mean more refusal decisions being made by entry clearance officers which would not in any case be challengeable by way of appeal to the Tribunal. If this would be the case then this is an outright denial of justice and access to the courts especially where human rights issues may also be in play.
Denying a right of appeal would also leave the applicant having to make a fresh application and thus paying a further application fee( with no guarantee of success), however that should not detract from the real possibility that the initial refusal decision could have been overturned on appeal. As the Guardian reports, “Habib Rahman, chief executive of the Joint Council for the Welfare of Immigrants, said: “There is an entirely justifiable expectation of British and settled people to be able to welcome family visitors. The fact that 36% of appeals are successful demonstrates the paucity of decision-making in this area”.
Improving decision making by entry clearance officers can reduce entry clearance appeals including family visit appeals, thus easing the pressure on the public purse. The Independent Chief Inspector of the UK Border Agency, published his inspection report of the Amman visa section in Jordan in an inspection which took place between August and October 2010 and focused primarily on the UK Border Agency’s handling of three separate visa categories: family visitor, other visitor and settlement
John Vine, Independent Chief Inspector of the UK Border Agency, stated:
“Entry clearance decision making should be consistent and fair.........My case file sampling identified serious concerns about the quality, consistency and fairness of decision making across all categories of visa applications considered in Amman. I found the visa section was, in some circumstances, refusing applications when applicants had adhered to guidance published by the UK Border Agency and submitted all the documents the Agency advised them to submit. In this respect, I found the guidance unclear as it did not properly inform applicants what information was required from them at the time they applied, nor were applicants given any opportunity to fulfil additional evidential requirements that were subsequently made during the decision making process. This practice is unacceptable and could potentially leave the UK Border Agency open to allegations of procedural unfairness…..In a number of cases I also found Entry Clearance Officers had refused applications on the grounds that the documents submitted by applicants were not genuine, before the outcome of verification checks to confirm or disprove their suspicions. This practice is also unacceptable, particularly as in some cases documents were later found to be genuine. The Agency needs to ensure this practice is stopped immediately. The absence of relevant supporting documents and caseworking notes made it almost impossible for me to understand some of the reasons for Entry Clearance Officers’ decisions to issue or refuse applications. Nor could I easily determine whether those decisions were taken in accordance with the Immigration Rules. I expect the Agency to make significant improvements to this post in order to deliver a fair, effective and efficient entry clearance operation”
In practise the above criticisms can arguably be said to typify the quality of decision making at other entry clearance posts. Refusing applications which should have been granted by entry clearance officers has significant consequences for applicants and their family leading to increased costs in relation to appeals and fresh applications. However where the right of appeal is to be removed, that only leaves affected applicants having to make repeated fresh applications.
Removing the right of appeal can also be seen as a measure intended to reduce the number of those coming to the UK. The current concern being that some family members who are allowed entry to the UK, whether via the initial application for entry clearance or following a successful appeal, do not leave the United Kingdom. Currently it is not possible to enforce guarantees by third parties that a passenger will abide by his conditions of stay or leave the United Kingdom at the end of a specific period. Rather than removing the right of appeal and in order to ensure fairness to those who do intend to leave the UK prior to the expiry of their leave, consideration may be given to requesting security bonds. It is an added assurance that the visa holder will depart the UK as the bond may be forfeited if the visitor breaches visa conditions. The applicant or his sponsor may provide the bond. The bond can be required to be paid during the application process before a final decision is made on the application with a refund to be made only where the visitor has left the United Kingdom having complied with conditions of stay as a visitor. Where the visitor beaches conditions of stay or stays beyond the duration of his leave as a visitor the bond would not be refunded.
CONCLUSION
In order to avoid being seen as potentially discriminatory, unfair and promulgating an injustice be removing the right of appeal in family visit applications, the government may well need to carefully consider how best , if at all, to introduce any such new plans in this regards as no doubt challenges will follow the implementation of any such controversial changes.
About the Author
Alice Muzira
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