What are the options if an application is refused?
There are generally three options:
A request for an administrative review can be submitted when a decision is wrong because of a Home Office case worker's error. If the decision is considered to be wrong, it will be withdrawn or amended.
This only applies to decisions that are 'eligible', which, following changes to the appeal regime, covers most types of applications except family applications. This means that in many cases, including entrepreneur, investor, work and student visas an administrative review would be potentially appropriate.
The timescales for an administrative review vary depending on where the original application was made:
- If you are outside the UK you must apply for an administrative review within 28 days of receiving the decision.
- If you are inside the UK you must apply for an administrative review within 14 days of receiving the decision; you will remain legally in the UK whilst you wait for the outcome.
An administrative review is a good option when a clear error has been made by a Home Office case worker or where it has not considered evidence that was submitted with the application. New evidence cannot be submitted with the appeal application so if the evidence was missing or in the wrong format an administrative review is unlikely to succeed.
The Home Office aims to decide an application for Administrative review within 28 days. Once the review is decided, a second review or a fresh application cannot normally be submitted.
A fresh application can be used to submit new evidence. If you can obtain the necessary evidence or documentation your fresh application will have good prospects.
- If you are outside the UK you may apply by submitting a fresh application for entry clearance.
- Depending on your circumstances, it may be possible to remain legally in the UK, as long as the fresh application for leave to remain is submitted within 28 days of the decision. If there has been no error by the Home Office, or if an appeal has poor prospects, a fresh application may be the only remedy. However, submitting a fresh application can cause a 'break' in continuous leave which can delay plans to settle in the UK.
Appeal to the First Tier Tribunal
The right to appeal is now limited, and is usually restricted to asylum, human rights, EEA and nationality decisions. Any application involving a partner or child will involve human rights and will have a right of appeal. The Home Office will usually advise in their decision if an appeal can be submitted.
- If you are outside the UK you must appeal within 28 days of receiving the decision.
- If you are inside the UK you must appeal within 14 days of the date of the decision; you will remain legally in the UK whilst the appeal process is ongoing.
An appeal can be necessary when the Home Office is unlikely to reach a different decision, or if you do not have new information or documents and the Home Office is not acting in accordance with the law. It may be the case that an independent Judge will agree with your position. You can only appeal if you have the right to appeal and grounds to appeal.
Appeals can take several months to resolve and there is no guarantee of success. In the past we have been consulted by clients who intend to appeal a decision but we have advised that, based on their circumstances, a fresh application represents a quicker way of seeking to obtain a visa.
How do you decide what the best option is?
Once a decision is received, you have limited time to decide what to do. You need to consider whether the Home Office has made any errors, whether you have any additional evidence or information or strong arguments to support your position.