Evidence submitted by Citizens Advice
(AIA 5A)
SUPPLEMENTARY SUBMISSION
1. Introduction
1.1 This paper represents the supplementary
submission by Citizens Advice to the inquiry by the Committee
on the Lord Chancellor's Department into Asylum and Immigration
Appeals. As such, it adds to our original submission to the inquiry,
dated 24 April 2003. It is based on, and prompted by, information
that has become available since 24 April.
1.2 In this supplementary submission, we
address the following issue only: family visitor visa decision-making
and appeals.
2 Family visitor visa decision-making and
appeals
2.1 In our original submission, we expressed
our deep concern about an apparent hardening of entry clearance
officer decision-making in relation to family visitor visa applications,
especially at entry clearance posts in India and others such as
Tehran, Cairo, Nairobi, Moscow, Beijing and Nicosia, since August
2002. We noted that, according to our analysis of the monthly
statistical reports of entry clearance posts, a 40% increase in
the number of family visitor appeals received by the IAA from
September 2002 can be directly attributed to the marked but unexplained
increase in the visa refusal rate at these specific posts. And
we noted the inordinate delay in publication of the final report
of the inter-departmental review of family visitor appeals.
2.2 In recent months, the rate of family
visitor appeals has continued at the higher level, with the IAA
receiving 1,102 such appeals in March 2003 (120% more than in
March 2002), and 1,021 appeals in April 2003 (70% more than in
April 2002). [21]
2.3 This seemingly reflects the fact that,
in recent months, the overall family visitor visa refusal rate
has remained at the high levels seen in the latter months of 2002.
Figures recently provided by Ministers indicate that, over the
three-month period 1 January to 31 March 2003, the overall refusal
rate was 27.9%; in March it was 29.3%.[22]
2.4 The overall family visitor visa refusal
rate in each month since October 2000 (with Year 1 being October
2000—September 2001, Year 2 being October 2001—September
2002, and Year 3 being October 2002—September 2003) is set
out in Table 1, below. From this table it can be seen that the
overall rate of refusal of family visitor visa applications has
increased steadily since the establishment of the new right of
appeal in October 2000, with three marked upward steps: the first
in January 2001, when the original (very high) fees were substantially
reduced; the second in September 2001; and the third in August/September
2002.
Table 1
OVERALL FAMILY
VISITOR VISA
REFUSAL RATE
BY MONTH
| Oct | Nov
| Dec | Jan |
Feb | Mar | Apr
| May | June |
July | Aug | Sep
|
| Year1 | 9.8 | 12.0
| 10.4 | 20.2 | 19.4
| 21.5 | 18.0 | 17.2
| 19.9 | 16.6 | 19.1
| 23.7 |
| Year 2 | 25.2 | 26.5
| 19.5 | 23.8 | 25.4
| 22.7 | 22.2 | 20.8
| 16.3 | 17.7 | 26.9
| 29.8 |
| Year 3 | 27.5 | 27.9
| 27.7 | 27.5 | 27.0
| 29.3 | | |
| | |
|
| |
| | | |
| | | |
| | |
2.5 Over the three-month period 1 October to 31 December
2000, the overall family visitor visa refusal rate was 10.7%.
Over the eight-month period 1 January 2001 to 31 August 2001 it
was 18.6%. Over the nine-month period 1 September 2001 to 31 May
2002 it was 23.0%.[23]And
over the eight-month period 1 August 2002 to 31 March 2003 it
was 27.9%. This compares with an overall refusal rate of all
non-settlement visa applications of 9.8% in the financial year
2001-02. [24]
2.6 We are deeply concerned that, despite being given many
opportunities to do so, not least in extensive correspondence
with Citizens Advice since February 2003, Ministers have yet to
offer a credible and satisfactory explanation for the steady increase
in the overall family visitor visa refusal rate since the establishment
of the appeal right in October 2000, or for the most recent upward
step in the overall family visitor refusal rate, in August/September
2002. Nor have Ministers provided an explanation for the worrying
disparity between the overall refusal rate of family visitor visa
applications and the refusal rate of all non-settlement visa applications.
2.7 However, given the pattern of the rise in the overall
refusal rate, and especially the timing of the two most recent
upward steps, we are concerned that the rise in the refusal rate
is in some way linked to the so-called war on terrorism—to
the detriment of the family life of the UK's ethnic minority communities.
In 1997, the Government's stated purpose in establishing the family
visitor appeal right was "to extend our commitment to the
family" to these settled communities.
2.8 In short, the undeniable value of the new appeal
right is being undermined by a steady rise in the visa refusal
rate, leading to an increased number of otherwise unnecessary
appeals.
2.9 On 10 June 2003, the Home Office published, on its
website, the findings of the research commissioned by the inter-departmental
review of family visitor appeals in 2001 and conducted by the
Home Office's Immigration Research and Statistics Service (IRSS).
[25]This research set
out to examine the reasons for the considerably lower than forecast
number of appeals, and for the marked disparity in the success
rates of oral and paper-only appeals.
2.10 On 11 June 2003, the Government "published"
the final report of the inter-departmental review team, by placing
a single copy in the House of Commons library. [26]
2.11 The final report of the review team is sanguine
about the lower than forecast rate of appeals, noting simply that
"there has been a general trend of increasing numbers since
the right of appeal was introduced". However, the IRSS research
report concludes that "a lack of clear and detailed information
about the appeal right and procedure is a key factor behind the
low appeal rate". The IRSS research report also concludes
that "perceptions and attitudes about the appeals process,
including its length and complexity, impact negatively on the
use of the appeal right and lead refused applicants to seek alternative
means of redress".
2.12 Although the final report of the review team incorporates
data up to April 2003, neither it nor the IRSS research report
refer directly to the 40% increase in the rate of appeals since
September 2002. As noted in our original submission to the Committee's
inquiry (paragraph 4.9), this increase can be largely if not wholly
attributed to the substantial increase in the visa refusal rate
at a relatively small number of entry clearance posts—such
as Mumbai, New Delhi, Tehran and Nicosia—since August 2002.
Somewhat surprisingly, the final report of the review team makes
no reference to this or previous upward steps in the visa refusal
rate.
2.13 The IRSS research report concludes that "the
main reason for the disparity in success rates between oral and
paper appeals is the attendance of the sponsor at the oral hearing",
and that "legal representation plays an important role in
the choice of appeal type and is a lesser influence on the outcome
of [appeals]". These findings endorse the view, expressed
repeatedly by Citizens Advice and others, that oral appeals offer
the best chance of justice in appeals of this kind.
2.14 However, the report further concludes that "a
third important explanatory factor" is that some, perhaps
many, paper-only appeals have been dismissed "too peremptorily"
by IAA adjudicators. In particular, the report notes the concern
of the Immigration Appeals Tribunal (IAT) that "some adjudicators
have been dismissing paper appeals without affording proper consideration
to the additional documents submitted by appellants". The
report notes that, in October 2001, the Chief Adjudicator went
so far as to issue guidance to all adjudicators determining paper
appeals, drawing their attention to the concerns of the Tribunal.
We and other organisations have repeatedly expressed concern about
the standard of decision-making by IAA adjudicators in paper-only
family visitor appeals. [27]
2.15 The IRSS research report makes a number of welcome
suggestions for changes to "improve the information afforded
to refused applicants and the relationship between ECOs and adjudicators".
These include: the provision of information to refused visa applicants
about the comparatively advantageous position of those who opt
for an oral appeal; more systematic feedback from IAA adjudicators
to entry clearance officers on the quality of initial decision-making;
and the establishment of "a quality control mechanism to
ensure that the decisions of adjudicators to dismiss paper appeals
adhere to the standards required by the Tribunal". We would
warmly welcome such a joined-up approach to this issue.
2.16 In our original submission to the Committee's inquiry,
we noted that the IAA is now not meeting its timeliness target
(of six weeks) for the determination of oral family visitor appeals
(paragraph 4.15). Court Service statistics provided to Citizens
Advice since the date of that submission indicate that the average
age of oral appeals determined at adjudicator level in April 2003
was 10.0 weeks. Clearly, many of these appeals will have been
older than this average.
2.17 It is now clear that a key reason for this steady
deterioration in the timeliness of the IAA's processing of oral
family visitor appeals since late 2001 is the regrettable abolition,
at some (unknown) point in 2002 or early 2003, of the priority
service previously accorded to such appeals. The final report
of the review team, published on 11 June 2003, states that:
"The family visitor appeal fee was justified by the priority
service. With the abolition of the fee, it follows that family
visitor appeals should join the queue with other immigration appeals.
However, in recognition of the fact that some family visitors
need a quick decision so that they can attend a specific event
in the UK, the paper appeal continues to be prioritised. This
can be justified on the basis that it does not seriously prejudice
appellants in other categories of appeal. Family visitors may
still choose an oral hearing if it is desirable for a sponsor
or legal representative to attend."
2.18 We are deeply disappointed by the abolition of the
priority service for oral family visitor appeals. As the IRSS
research report notes, some 40% of those who appeal applied for
a visa to attend a specific family event or occasion. Clearly,
for such appellants, a timely determination of their appeal is
the only level of service that is consistent with the ostensible
aim of the appeal right—to enhance the family life of the
UK's settled ethnic minority communities.
2.19 Furthermore, we regard the Government's justification
for the abolition of the priority service as unsatisfactory. For
the attendance of a sponsor and/or a legal representative is not
simply "desirable"—as the IRSS research report
concludes, such attendance considerably enhances the chance of
the appeal succeeding.
2.20 Moreover, the Government only began justifying the
fees on the basis of the priority service in mid-2001, after its
original and subsequent justifications for the fees—that
there was "no new money" to fund family visitor appeals,
and (after HM Treasury began to inject substantial amounts of
"new" money into the immigration system in 1999) that
the fees were "consistent" with the fees regime in the
civil courts and the policy of full cost recovery—were shown
to be flawed and/or untenable. By the time of the abolition of
the fees, in May 2002, the IAA was already failing to meet its
timeliness target for the determination of oral appeals.
Richard Dunstan
Immigration Policy Officer
Citizens Advice
115 Pentonville Road
London N1 9LZ
17 June 2003
21
Source: Court Service monthly statistics provided to Citizens
Advice by the LCD Back
22
Source: Hansard, House of Commons, 11 June 2003, col. 924w. Since
February 2003, when Citizens Advice first expressed concern about
the apparent hardening of ECO decision-making from August/September
2002, UKvisas has ceased providing us with the monthly statistical
returns from EC posts. As a result, it is currently not possible
for us to report on the refusal rate in recent months of individual
EC posts, such as those identified in paragraph 2.1 Back
23
We understand that, in June and July 2002, some - possibly many
- posts were offering a "restricted" visa service, with
only "straightforward" applications being decided.
The FCO minister, Bill Rammell, has stated that this is the explanation
for the markedly lower refusal rate in these two months Back
24
Source: Report by the Independent Monitor, Rabinder Singh QC,
November 2002 Back
25
At: www.homeoffice.gov.uk/rds/pdfs2/rdsolr2603.pdf Back
26
Hansard, House of Commons, 11 June 2003, col. 47ws Back
27
See, for example: Family visitor appeals: the second year, Citizens
Advice, November 2002; and Family visitor appeals: the first year,
Citizens Advice, December 2001 Back
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