Evidence submitted by UKvisas (AIA 35)
INTRODUCTION
1. This paper is the UKvisas submission
to the Select Committee on the Lord Chancellors Department inquiry
into Immigration and Asylum appeals. The terms of reference of
the inquiry identified six key issues:
— the extent to which recent reforms
have produced any significant efficiency savings and/or improved
the quality of the appeals process;
— the costs to public funds of supporting
new appeals structures, such as the Asylum Support Adjudicators
and of supporting the extension of Legal Aid;
— the extent to which the Immigration
Appellate Authorities could be made more efficient, without sacrificing
fairness;
— whether the relevant procedure rules
properly balance fairness and justice with efficiency;
— whether there is sufficient availability
and provision both of legal advice and reputation and of interpretation
facilities for appellants in asylum and immigration cases; and
— the extent to which "non-suspensive"
appeals provide an adequate right of appeal.
2. The Committee asked for UKvisas' views
on any of the above issues, including any comments in relation
to appeals against refusals of entry clearance. Given that UKvisas'
main focus is the overseas entry clearance operation, we have
little direct involvement with the appeal process in the UK. The
focus of this submission will thus be in respect of appeals against
refusals of entry clearance. The Committee has also highlighted
that it wishes to explore refusals of entry clearance, particularly
in relation to family visitors.
3. As part of its work, the Select Committee
will visit overseas visa issuing posts in Turkey and India. We
hope that this will help the Committee to understand the role
of the entry clearance operation in the appeals process.
4. UKvisas works with the Department for
Constitutional Affairs (DCA) and the Home Office to deliver the
Government Strategy on asylum and immigration. The Immigration
and Nationality Directorate (IND) of the Home Office is responsible
for the Government's Policy on immigration and for decisions on
any applications for leave to remain in the United Kingdom. UKvisas
is responsible for the delivery of a fair, just and efficient
service and policy relating to entry clearance applications to
allow people to travel to the United Kingdom. UKvisas reports
to a Joint Management Board of senior Foreign and Commonwealth
Office and Home Office officials and to a Joint Ministerial Committee
consisting of the FCO Minister for Entry Clearance (Chris Mullin)
and the Home Office Minister for Immigration (Beverley Hughes).
KEY AIMS
AND TARGETS
5. UKvisas aims to:
— use entry clearance to welcome legitimate
travellers to the United Kingdom, while preventing the entry of
those who do not qualify under the Immigration Rules;
— ensure that the purpose and aims
of immigration policy, including entry clearance, take full account
of the United Kingdom's wider national interests, including foreign
policy objectives;
— deal honestly, fairly, sensitively
and openly with people; and
— provide value for money.
6. UKvisas has a number of PSA targets designed
to ensure the provision of a high quality service for applicants.
They include a requirement to process 90% of straightforward personal
applications within 24 hours and to interview 90% of applicants
requiring interview for a non-settlement visa application within
10 days. The majority of posts meets or exceeds these targets.
DELIVERY STRUCTURES
7. UKvisas is committed to delivering the
highest possible standard of decision-making. Entry Clearance
Officers (ECO's), are provided with extensive pre-posting training
to prepare them for their work overseas. Each application is considered
on its individual merits and in relation to the Immigration Rules.
The burden of proof is on the applicant to satisfy the Entry Clearance
Officer and the standard of proof is "on the balance of probabilities".
It is inevitable that the application of the Immigration Rules
will result in some cases where a decision is clear and some where
the balance is fine. Entry Clearance Officers are encouraged to
be pragmatic when making their decisions.
ENTRY CLEARANCE APPEALS
HANDLING OF
NON-APPEALABLE
REFUSALS
8. Under the current Immigration Rules,
certain categories of application for entry clearance attract
the right of appeal if the application is refused. These include
those coming for settlement, students coming of longer than six
months and those visiting family members. Those which do not attract
the right of appeal are thoroughly reviewed by an Entry Clearance
Manager (ECM) within one working day of the decision being taken.
The form is stamped "Reviewed by ECM", signed and dated.
Samples of entry clearances which have been issued are also reviewed
and stamped accordingly. If the ECM considers the decision sound
and defensible, no further action is taken. If the ECM decides
that the decision is unsound or finely balanced then they can
overturn the ECO's decision. If the ECM agrees with the decision
but considers that the reasons for refusal are not clearly stated,
he or she will arrange for a revised refusal notice to be given
or sent to the applicant with a covering letter explaining why
a new refusal notice is being issued.
9. If the ECM considers the refusal unsound,
he/she will consult with the ECO concerned to decide whether the
decision should be reversed on the grounds that; a) the decision
is not in accordance with the Rules, b) it is not supported by
the record of interview or c) it is unreasonable on the basis
of all the factors considered. Best Practice states that where
a decision is reversed, it must be done quickly and noted in the
appropriate register, which is held at post. The register should
also indicate cases where MPs' or other high level representations
are involved and what effect they had on the actual decision.
INDEPENDENT MONITOR
10. The Immigration and Asylum Act 1999
provides for the appointment of an Independent Monitor to scrutinise
non-appealable refusals. The Monitor reviews around 1,000 files
a year. UKvisas asks Posts at the beginning of each year for a
random sample of refusals from the preceding year. The Monitor
makes an annual report to the Secretary of State, copies of which
are sent to all MPs and to Posts. Any criticisms made in the report
are carefully considered and action is taken where appropriate.
A recent example of this is the abolition of pre-assessment procedures,
as recommended by the outgoing Independent Monitor, Rabinder Singh.
HANDLING OF
APPEALABLE REFUSALS
11. An applicant who is refused a visa and
has a right of appeal will be informed of their appeal rights
and supplied with a notice of appeal form. There are two types
of entry clearance appeals; the family visitor appeal and non-family
visitor appeal against refusal of entry clearance (eg settlement,
long term student). When entry clearance is refused the applicant
has 28 days from service of the refusal notice in which to lodge
their appeal. If the refusal notice is sent by post, they have
in total 56 days from the date of posting of the refusal notice,
as the refusal is deemed to have been served 28 days from posting.
The appellant must lodge the notice of appeal within the prescribed
time period (there are separate procedures for out of time appeals).
The form asks the appellant to choose whether to have an oral
hearing in the UK (for their representative to attend) or for
the appeal to be determined on the papers.
FAMILY VISITOR
APPLICATIONS
12. The Immigration and Asylum Act 1999
introduced the right of appeal for those intending to visit a
close family member. The right is retained in the Nationality
Immigration and Asylum Act 2002. Under the Immigration Appeals
(Family Visitor) Regulations 2000, a "member of the applicants
family" is any of the following persons:
— the applicant's spouse, father, mother,
son, daughter, grandfather, grandmother, grandson, granddaughter,
brother, sister, uncle, aunt, nephew, niece or first cousin;
— mother, father, brother or sister
of the applicant's spouse;
— the spouse of the applicant's son
or daughter;
— the applicant's stepfather, stepmother,
stepson, stepdaughter, stepbrother or stepsister; or,
— a person with whom the applicant
has lived as a member of an unmarried couple for at least two
of the three years before the day on which his/her application
for entry clearance was made.
When a family visitor appeal is lodged
— the ECO reviews his or her decision
and at this stage can decide to issue the visa in the light of
the grounds of appeal. If the decision is reversed, the appellant
is invited to withdraw the appeal.
— If the refusal is maintained (or
if the applicant declines the invitation to withdraw the appeal)
the appeal is then despatched to the Immigration Appellate Authority
(IAA) in Loughborough, Leicestershire by the entry clearance post
concerned.
— The IAA schedules a date for the
appeal hearing if an oral hearing has been chosen and contacts
all interested parties to the appeal. Alternatively if a paper
hearing has been chosen, an Adjudicator will determine the appeal
on the papers. The Home Office Presenting Officers Unit represents
the interests of the entry clearance operation. In most cases,
posts have no further involvement until the outcome of the appeal
is known.
When an appeal is lodged on refusal of entry clearance
(non family visitor)
— The ECO reviews his or her decision
and can either maintain the refusal or issue a visa in the light
of the grounds of appeal. If a visa is issued, the appellant will
be invited to withdraw the appeal.
— The ECO has 28 days to prepare and
send the explanatory statement (three months in settlement cases).
UKvisas has recently drafted guidance to posts on the importance
of timely preparation of appeal statements and dealing with appeals
within required time scales.
— The appeal, complete with explanatory
statement, is despatched to the Home Office Appeals Processing
Centre (APC) in Croydon. The APC deals with all appeals including
asylum.
— Staff at the APC prepares appeal
bundles and despatches them to the Immigration Appellate Authority
(IAA).
— The IAA schedules a date for the
appeal hearing and contacts all parties to the appeal. Again,
the Home Office Presenting Officers Unit represents the interests
of the entry clearance operation.
PROCEDURE RULES
13. There are two sets of rules prescribing
procedure for appeals to the Immigration Appellate Authority (IAA).
Those that apply to entry clearance appeals, are the Immigration
and Asylum Appeals (Procedure) Rules 2003. These came into force
on 1 April 2003 and set out the procedure for appeals heard by
the IAA.
THE APPEAL
14. The IAA has two tiers of appeal—Adjudicators
and the Immigration Appeal Tribunal. Immigration Adjudicators
are the first tier in considering appeals against decisions made
by Immigration Officers, Entry Clearance Officers and the Home
Secretary.
15. A Home Office Presenting Officer (PO)
represents the ECO as the respondent. An appeal will usually proceed
in the following manner:
— Opening address—when the PO
has the opportunity to amplify the explanatory statement and correct
any minor errors in the statement.
— Examination in chief—so that
any witnesses can give evidence in support of the appellant's
claim and rebut the facts set out in the explanatory statement.
— Cross examination—of any witnesses
by the Presenting Officer. This is to test the reliability and
accuracy of the evidence given in the previous category.
— Re-examination of any witnesses by
the appellant's representative.
— Final addresses by the PO and appellant's
representative.
— Determination—this is normally
given in writing at a later date but can be given orally at the
hearing. (If an oral determination is given there is a requirement
under the Procedure Rules to issue a determination in writing
as well.) The time limit for appealing to the Tribunal runs from
receipt of the written determination, which is authoritative.
16. The Adjudicator "may consider only
the circumstances appertaining at the time of the decision to
refuse" (Section 85(5) of the Nationality and Immigration
and Asylum Act 2002). This is different from other appeals heard
by the IAA, where Adjudicators can consider any matter, which
he or she thinks relevant to the substance of the decision. This
means that Adjudicators are restricted in considering new evidence
for entry clearance appeals. If the appellant considers that their
circumstances have changed since the original application, they
should make a new application to the ECO rather than use the appeal
route.
17. As the appellant is by definition overseas,
entry clearance appeals are conducted without the presence of
the appellant. Unlike the Entry Clearance Officer, the Adjudicator
frequently has the opportunity to hear evidence from an appellant's
sponsor, particularly in cases of family visitor appeals. Although
a sponsor has no status under the Immigration Rules,the Adjudicator's
ability to see sponsors may well be a factor that leads Adjudicators
to reach a different view from an Entry Clearance Officer when
reaching their determination in entry clearance appeals. Another
factor may be that documentary evidence is regularly given to
the Adjudicator which was not supplied to the ECO.
THE OUTCOME
OF APPEALS
18. There is a right of appeal to the Immigration
Appeals Tribunal against the adjudicator's decision. Both parties
have 28 days in which to appeal on a point of law. A Home Office
Presenting Officer reviews all determinations that allow the appeal
and considers whether to seek permission to appeal to the Tribunal
on a point of law. If he or she decides against seeking permission
to appeal he or she will inform the ECO, who will in turn issue
the visa. If the appeal is dismissed the appellant will need to
decide whether to seek permission to appeal to the Immigration
Appeal Tribunal on a point of law.
19. As a result of the priority being given
to asylum cases a backlog of entry clearance appeals has built
up at the APC. However, the asylum appeals backlog is now reducing
and is expected to be at frictional levels by the end of this
year. This will allow the APC to begin sending the backlog of
ECO cases to the IAA, providing there is no increase in asylum
appeal intake, and to be dealing with ECO appeals at frictional
levels by next Easter. This will lead to a significant change
in the case balance for Adjudicators and Presenting Officers from
the current 85% asylum/15% entry clearance to a 50/50 split. This
in turn will have implications for the training needs of Presenting
officers and Adjudicators.
THE ROLE
OF UKVISAS
AND OVERSEAS
POSTS IN
THE APPEAL
PROCESS
20. The primary role of an entry clearance
post in the appeal process is to deliver appeal statements and
supporting papers to the APC (for non-family visit cases) or the
DCA processing centre at Loughborough (for family visitor appeals).
The majority of appeals are processed by posts within the time
limits.Inevitably, however, problems occur from time to time.
Examples of these include:
— Some posts (notably Addis Ababa,
Karachi, Abuja, Islamabad and Nairobi) have a long backlog of
appeal statements due to post closures for security reasons, volatile
political climates, staff shortages or the sheer number of applicants.
— Appeals papers are sometimes lost
in transit or at the Home Office. The post is then required to
send further copies.
— Appeals are sometimes received incomplete
and the APC has to chase the Post for papers.
— Due to staff shortages, the Home
Office is not always able to field a Presenting Officer to act
on the ECO's behalf. Where a Presenting Officer is not present,
it is inevitably more difficult to defend an appeal. The task
of Presenting Officers and Adjudicators is complicated by the
fact that the balance of casework is 85% asylum and 15% immigration.
This means that many of them currently have more expertise in
asylum work. This will change as the caseload balance begins to
shift towards the end of the year.
— Delays can occur in getting determinations
to Post when an appeal is allowed. As described in paragraph 13
above, Presenting Officers have 28 days in which to review the
case and consider whether to seek permission to appeal to the
Tribunal. An ECO can not issue a visa until he or she has had
confirmation from the Presenting Officer that leave to appeal
to the Tribunal will not be sought. As the appellant gets a copy
of the determination at the same time as the Presenting Officer,
ECOs are sometimes faced with successful appellants who arrive
at the Post with a copy of the determination before the ECO has
heard from the Home Office that no appeal against the determination
has been lodged.
CITIZENS ADVICE
BUREAU SUBMISSION
21. The Citizens Advice Bureau submission
of 24 April 2003 and its supplementary submission of 17 June 2003
made observations on the immigration appeals process and concluded
"the asylum and immigration appeals system has benefited
from a substantial increase in resources of the IAA in recent
years. However these advances have, been offset by serious and
seemingly systemic failings in the performance of the appeals
support section of the Home Office IND. At the same time, the
appeals caseload of the IAA appears to have increased by poor
decision-making on the part of entry clearance officers in relation
to family visit visa applications".[188]
22. Ministers from the Home Office, FCO
and DCA have been in correspondence with Citizens' Advice (most
recently in May 2003). UKvisas has invited representatives of
Citizens Advice and other interested organisations to a meeting
of the UKvisas User Panel in October, which Home Office and FCO
Ministers will attend to discuss these issues.
23. Both UKvisas and Ministers have rejected
allegations made by Citizens' Advice that there has been a deliberate
policy of targeting family visitors. The refusal rate has increased
in some posts, but this is due to a number of factors including
an increase in the detection of forgeries. Each case is considered
on its own merits. Within the Immigration Rules, it is the intentions
and financial resources of each individual applicant that are
the issue. It is these that the ECO will consider when making
a decision on any application. The ECO also takes into account
any local considerations and any other issue relevant to the application.
POSSIBLE IMPROVEMENTS
TO THE
HANDLING OF
APPEALS
24. UKvisas, with input and co-operation
from both the Department of Constitutional Affairs (DCA), the
IAA and the Home Office, are constantly looking for ways to improve
the current system to give the best value and customer service
in the appeals system.
AT POST
— UKvisas is considering ways of helping
Posts clear backlogs that have been caused by exceptional circumstances
such as the security situation in Pakistan. These include drafting
a limited number of appeal statements in the UK as resources permit;
— UKvisas' policy of streamlining processes
and procedures should enable the faster production of many explanatory
statements. However, there is a difficult balance to be struck
between processing the ever rising volume of global applications
and devoting sufficient time to the production of high quality
appeal statements. There is no perfect solution.
— UKvisas has issued guidance on a
checklist of papers needed by the APC to try to ensure that all
relevant papers are submitted. It also plans to explore options
for bar coding to reduce the risk of error and increase the traceability
of papers. Nevertheless, this is not a short-term option.
HOME OFFICE
— One problem is that once appeals
are received by the Home Office they are given a Home Office reference
number and lose their post reference number. In addition the IAA
gives appeals their own reference numbers making it harder for
posts to track appeals. UKvisas and the Home Office are exploring
the possibility of the APC acknowledging appeals on receipt (eg
by returning a slip to the overseas post/weekly returns to post)
including the Home Office file reference number.
— The longer-term objective is the
introduction of common reference numbers throughout the appeal
process by all concerned, so that information could be obtained
by contacting the APC as a central point of contact. Discussions
on this have begun.
— UKvisas and the Home Office are exploring
ways of speeding up the notification of appeal determinations
to ECOs by Presenting Officers.
IAA
— UKvisas has offered visits to overseas
posts for both Presenting Officers and Adjudicators so that experience
can be gained in how a visa issuing post operates sitting in on
interviews and watching how cases are dealt with and decisions
made. It is also planned that ECOs will attend appeals at the
IAA to see the challenges faced by Adjudicators.
CONCLUSION
25. UKvisas believes that the principles
of the appeals system work well. All concerned regret the backlogs
that have developed in recent years. However, the prospects are
that by early next year the appeals system will deliver a timely
outcome. In these circumstances, UKvisas believes that the appeals
system for entry clearance appeals needs fine-tuning of the kind
described above in the short term. UKvisas is aware that DCA and
the Home Office are examining options with a view to streamlining
the appeals process for asylum, immigration and nationality appeals.
This will have direct benefits for those individuals who are appealing
against the refusal of entry clearance.
26. UKvisas is committed to working with
all those involved in the appeal process to ensure that the entry
clearance operations delivers its contribution to the appeals
process as effectively as possible. It does not, however, accept
that the relatively high success rate of appeals reflects negatively
on the decision-making process. As indicated above, Adjudicators
often have access to information that was not presented to ECOs.
It is inevitable that when the balance is fine, and the standard
of proof the balance of probabilities, that individuals will reach
different conclusions with different outcomes from a visa applicant
on the basis of the information provided.
UKvisas
11 September 2003
188 Submission to the Committee on the LCD by Richard
Dunstan, Immigration Policy Officer, Citizens Advice Bureau Back
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