THE
DECISION-MAKING
PROCESS
28. Detailed guidance on the procedures to be
adopted in EC Sections, including the duties of Entry Clearance
staff, is set out in the Best Practice guide produced by MVD.
Visitors to an EC section overseas applying for a visa are steered
through a triage system. This is aimed at dividing the more complicated
applications from the straightforward which may not require interviews
and which can therefore be issued quickly. A fuller description
of this system is given at Annex B.
29. ECOs are the motor of this system. The initial
decisions to grant or refuse rest with them. They read all the
papers relating to a case in detail, and interview the applicant
if necessary, and can ask questions of employers, educational
authorities, as appropriate. They can, in cases of doubt, consult
the ECM locally, or turn to the MVD helpline for advice if there
are unusual circumstances.
30. Some applications are referred for decision
to the Home Office or MVD. The Home Office have specified that
certain categories should always be referred. These include those
wishing to set up a business; investors; dependants of those with
exceptional leave to remain. Others are referred to the FCO: for
instance applicants covered by a UN Security Council Resolution
or EU common position. Posts may refer to London in other cases,
but should not use the referral procedure solely as a way to pass
on the responsibility for deciding difficult cases. However, once
referred, the decision is taken in London and Post is not normally
expected to challenge it.
Visa refusals
31. ECOs are required under the Immigration
Rules to identify and refuse entry clearance to all applicants
who are judged not to be eligible to enter or settle in the UK.
Applicants who are likely to be refused are always given the opportunity
of a detailed interview to explain the background to the visa
application. Most refusals of visas (e.g., visit applications)
do not have the right of independent appeal. In these cases, the
ECO is required to explain to the applicant in writing the reasons
for refusal, in the form of a refusal notice (REF 1), which is
given to the applicant, and includes space for any comments which
he/she may wish to make. An example of a Refusal Notice given
to an unsuccessful applicant is at Annex D.
32. The first layer of checks is the ECM. ECMs
are required to review all refusals within 24 hours. In
many cases ECOs will already have discussed difficult or borderline
cases with ECMs. Refusal decisions are not withheld from the applicant
until the ECM check is complete, but if the ECM overturns a refusal
the applicant is told of the new decision in his/her favour. The
ECM also checks a random sample of all visa issues, in slower
time, but on a regular basis as a quality control.
33. The earlier right of appeal in cases of
visit refusals (around 75,000 each year) was withdrawn in 1993.
An Independent Monitor (Dame Elizabeth Anson) was appointed
to monitor refusals to check the fairness of the new system. To
do this, she reads the full case papers relating to a random sample
of about 1,800 refusals each year. She also visits a number of
Posts to see entry clearance sections in action. Her detailed
annual report on her findings is submitted to Parliament.
34. In addition to the Independent Monitor,
ECOs' decisions are subject to Judicial Review in the High Court.
Two or three challenges are received each month. Cases may also
be referred to the Parliamentary Commissioner for Administration
(Ombudsman) in cases where the FCO is considered to have acted
maladministratively.
35. The Government is committed to introducing
a streamlined system of appeals for visitors refused a visa. Home
Office officials, in consultation with officials in the other
interested Departments, are examining how this should be implemented.
Appeals against refusal
36. Some applicants (e.g., settlement and applications
for other long-term purposes such as studies) have a statutory
right of appeal against the refusal of a UK visa to an independent
adjudicator. In these cases, the applicant receives a brief statement
of refusal in the form of a Notice of Refusal Form (APP 200) and
a Notice of Appeal Form (APP 201). The APP 200 draws the attention
of applicants to the existence of the Immigrants' Advisory Service
(IAS), which will give independent assistance should the applicant
decide to proceed with an appeal. Copies of these forms are at
Annexes E and F.
37. Immigration adjudicators dealt with 7,080
appeals against refusals of entry clearance in 1996. Of these,
1,760 were allowed, 4,020 dismissed and 1,300 withdrawn.
