Removing Full Right of Appeal for Family Visitors: tackling abuse of system or hooding abuse of power?

Last week, the government announced its intention to rescind full right of appeal for family visitors by January 2014, and by July 2012 to exclude from this right those who are visiting extended family – other than parents, grandparents, spouse, children or grandchildren.

According to the official government statistics, over 49,000 refusals of a family visitor’s visa were appealed in 2010-2011, of which over 19,000 were allowed declaring the decision of the Entry Clearance Officers unlawful.

The government claims that analysis of sample decisions showed that in 63% of the allowed appeals, new evidence produced at appeal was the only factor in the Tribunal’s decision.  The opinion of those in power is that appeal rights are redundant where an application can simply be re-submitted with new evidence.  It would be quicker and cheaper for the applicant to resubmit, and the taxpayer will not have to pay for the unnecessary judicial intervention.

This thoughtful approach to cost cutting exercise has at least one significant flaw – that it circumvents the constitution principle of providing a mechanism for judicial control over the performance of the executives.

What would lifting of judicial control entail in practice?

As immigration lawyers, we regularly advise on practicalities of immigration appeals, including appeals against refusal of family visit.  Our advice to a prospective appellant is not by a long shot different from the view of this government: it is cheaper and quicker to reapply, therefore – where the refusal is reasonable, gather more evidence and reapply. However, where the decision follows logic of its own, additional evidence may not change the course.

I can give some examples of infallible logic of the Entry Clearance Officers which would not seem to be halted by any kind of additional evidence: “I am not satisfied that you intend to leave the UK on completion of your visit, because your life in [the country of origin] is by far inferior to the standard of living enjoyed in the UK”, or “you have no family ties in your country of origin, I therefore find that you will not be inclined to return home at the end of your visit”, or “you have not visited [the sponsor] in the past, and I do not see any reason why you should visit him now”.

It is true, that the first of the above “reasons” could perhaps still squeeze into the appeal system on the grounds of race discrimination.  However, the main point is that none of the above “reasons” are in accordance with the immigration rules.

Taking away the right of appeal from the appellant will not relieve the burden on the public purse, and will certainly not “tackle abuse” of the system.

Where the applicants have no right of appeal, the much more costly system of judicial review will offer the only substitute remedy.  Will the remedy be adequate?  – Most probably not, as the principle of judicial review is significantly different from the principle of an appeal hearing.  Yet, in the absence of a proper appeal mechanism, judicial review system would have to adapt so as to fill the created lacuna.  It is not unlikely that the higher courts might need to be attracted so as to re-define the expanding role of judicial review process.

Will there be any saving to the taxpayer? I doubt so.  Judicial review is by far more costly than an appeal in the immigration tribunal and the losing party normally pays the costs of the other side.

Perhaps, Parliament should think again before Clause 24 of the Crime and Courts Bill becomes law.