Changes to the Immigration rules laid down on 13th July 2015 and Admininstrative Review. Plus some advice on making a Human Rights claim.
Why is this important ? It’s important becuase in March this year, Points Based applicants, which include workers and students lost their right of appeal to the Tribunal against a Home Office Refusal, and in April, those making applications to extend their stay in the UK with only a few small exceptions, one being those who have made Human Rights claims, also lost the right of appeal. Instead challenges have to be brought by way of Administrative Review, which is a process carried out by the Home Office themselves.
The case has to meet the criteria of a ‘relevant decision’ and a ‘caseworking error’ must have been made. Both terms are defined in the Immigration rules, and whilst they are in some respects similar to the grounds of appeal we used to have before appeals were done away with, the big difference is the Home Office, and not a Judge at the Immigration Tribunal, makes the assessment of the case under challenge.
This Statement of Changes to the rules affects all applications for Administrative Review made on or after 3rd August 2015. It states that in some cases, people who have an eligible in country decision prefer to make a fresh application for leave to remain rather than proceed with an application for Adminisrative Review where they think their original application was correctly decided.
At the moment they cannot make a fresh application for 14 days if the original application was made in time and their leave has automatically been extended, which prevents a new application being made.
Previously they had to sign an Admin Review waver form.
So what is the change ? Now Admin Review is no longer pending if a person makes a fresh application within those 14 days, and they do not need to sign the Admin Review waver form.
BUT ! do rememer people that when making your applications from now on, the only way you will have a Human Rights appeal that can go before the Immigration Tribunal is if you make a Human Rights claim at the point of making your Points Based or other Immigration application.
HOW DO YOU DO THIS ?
Well, statute defines a HumanRights claim as s.12 (3)(a) & (b)Immigration Asylum and Nationality Act 2006 as
‘a claim made by a person that to remove him from or require him to leave the UK would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) as being incompatible wiht his Convention rights, but
does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part in accordance with immigration rules’
You do need to take advice on this, particularly with applications to join or stay with family members, as you also need to reference other parts of theImmigration rules. There will be cases where Human Rights don’t take your case any further, and some where it can make all the difference, so do be aware !
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