The immigration Act 2014 introduced new provisions for appeals. On 16 October the secretary of state proposed in the Statement of Changes in Immigration Rules 2014, that there will be changes to the appeal structure for Tier 4 (General) Migrants and these will be implemented on 20 October 2014.
Tier 4 (General) Migrants formally had the right of appeal however since 20 October 2014, Tier 4 (General) applicants are now required to administrative review a refusal. This is applicable to the flowing applications made on or after 20 October 2014 within the UK:
- leave to remain as a Tier 4 Migrant under the Points Based System;
- leave to remain as the partner of a Tier 4 Migrant under paragraph 319C of the Immigration Rules
- leave to remain as the child of a Tier 4 Migrant under paragraph 319H of the Immigration Rules
You can administrative review a refusal where there is has been a caseworker error. As stated in AR3.4 of the Statement of Changes in Immigration Rules 2014, the following is a complete list of case working errors for the purposes of these Rules:
(a) Where the original decision maker applied the wrong Immigration Rules;
(b) Where the original decision maker applied the Immigration Rules incorrectly;
(c) Where the original decision maker incorrectly added up the points to be awarded under the Immigration Rules;
(d) Where there has been an error in calculating the correct period of immigration leave either held or to be granted;
(e) Where the original decision maker has not considered all the evidence that was submitted as evidenced in the eligible decision;
(f) Where the original decision maker has considered some or all of the evidence submitted incorrectly as evidenced in the eligible decision;
(g) Where the Immigration Rules provide for the original decision maker to consider the credibility of the applicant in deciding the application and the original decision maker has reached an unreasonable decision on the credibility of the applicant;
(h) Where the original decision maker’s decision to refuse an application on the basis that the supporting documents were not genuine was incorrect;
(i) Where the original decision maker’s decision to refuse an application on the basis that the supporting documents did not meet the requirements of the Immigration Rules was incorrect;
(j) Where the original decision maker has incorrectly refused an application on the basis that it was made more than 28 days after leave expired;
(k) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.”
If an applicant has received a refusal and does not fall in the above categories, administrative review is not available in respect of that decision.
In addition, you can also apply for an administrative review if your Tier 4 visa was granted however you are unhappy with the amount or conditions of your leave which you were granted.
Applicants within the UK: Must apply for an administrative review within 14 days of receiving their refusal letter (within 7 days if you’ve been detained). The cost for an administrative review is £80.
Tier 4 Entry Clearance applicants are also required to administrative review a refusal however they also have a Limited Right of Appeal. Tier 4 Entry Clearance applicants may only appeal a Tier 4 refusal where the appeal is on human rights or race discrimination grounds. (Grounds referred to in section 84 (1) (b) and (c) of the Nationality, Immigration and Asylum Act 2). Where an applicant does not fall within these limited rights of appeals, they are able to administrative review a decision or alternatively reapply for a Tier 4 visa.
Applicants outside the UK: Must submit their administrative review within 28 days of receiving their refusal letter. There is no fee for this and the administrative reviewer will complete their review and notify the applicant in writing of their decision within 28 days from the date of receipt of the Administrative Review request notice.
There are three possible outcomes of Administrative Review:
1) Uphold decision, reasons for refusal remain the same;
2) Uphold decision, with revised reasons for refusal;
3) Overturn decision and issue entry clearance.
The reasons for refusal stated in the refusal letter will determine whether an applicant should administrative review their decision or reapply for a Tier 4 visa. In some cases it may be that administrative review is not the best option but instead reapplying a Tier 4 visa is.
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