One of the biggest problems, and I have touched upon this before, but a timely reminder may help, is the difference between those refused under paragraph 322(5) and given a right of appeal and those who are denied a right of appeal and must seek judicial review to seek redress.
At first it must seem odd that the same type of refusal can lead to whether an individual gets a right of appeal or not.
The background to this has been going on for years and by this I mean the continuous restriction of rights of appeal.
One example which is not particularly edifying from a barrister’s point of view was the decision to remove the right of appeal against visa refusals which lead from a general denial of a right of appeal to the denial of the vast number of Entry Clearance Applications.
I recall that before appeal rights for EC cases were taken away the Secretary of State was regularly winning in excess of 50% of the asylum appeals brought but losing over 50% of the EC applications. At first blush this seems odd given that the EC Appellant would nearly always be abroad while the asylum appellant would be before the Court.
One might have thought that this meant that EC refusals were regularly wrong and more training and assistance might help. However the route chosen to deal with this was to deny appeals.
This trend followed with the introduction of the Points Based System (“PBS”). In these cases often individuals making the application themselves would miss a minor document, they would appeal and win. The Home Office essentially did for the appeals by denying Appellants the opportunity to adduce further evidence.
Matters got severely worse under the Immigration Act 2014. Prior to this an appeal could be brought on many bases, such as the Immigration Rule had not been properly applied. However, since the implementation of the Immigration Act 2014 appeals can only be brought against asylum protection claims and human rights claims
Herein lies the problem, an individual with a tax difference who makes an application under the Immigration Rules can only get a right of appeal if there they have made a human rights claim rather than having applied under the relevant immigration rule.
What makes matters even more strange is that if an individual makes an application under the Immigration Rule they are given an Administrative Review – carried out by someone else at the Home Office and the they are left with JR.
I cannot stress that if an individual is in a position to legitimately raise human rights, perhaps along with their qualification under Tier 1 ILR then they should seek the help of a reputable lawyer to make a variation application. This will, subject to certification, hence the need for it to be a properly made Human Rights application, and it is to be remembered that the Court have recently held that running a business can count towards private life, lead to a right of appeal.
The benefits of having an appeal are, in my view huge, it gives the Appellant the opportunity of adducing new evidence, speaking to the Judge along with the advocate making submissions on fact and law as opposed to JR where no new evidence is allowed and the Applicant cannot speak.
There is a further benefit to an appeal, at an appeal it is for the Judge to decide on the balance of probabilities (50/50) whether the Applicant is truthful. In a JR application the burden is on the Applicant to show that the decision is not merely wrong but perverse or irrational, a much harder test to meet, particularly when they are not allowed to speak and have to rely on the advocate.
Having said this, experienced barristers and solicitors are able to advise on the best way to present a JR claim thus greatly increasing the prospects of success. However I cannot stress that JR while appearing straightforward is exceptionally complicated and requires an expert at all stages as if anything is missed it can lead to the JR being dismissed at great cost to the individual and with only the Court of Appeal to turn to, again a further cost in not only money but time.
Please feel free to contact me or one of the expert team at Imperium Chambers on 020 7242 3488.
Paul Turner is a highly regarded direct access immigration barrister licensed by the BSB to provide immigration advice directly to the public.