New restrictions of family visitor appeals
25 June 2012
As previously noted, the government intends to abolish family visitor appeals. As an intermediate measure, the Home Secretary, Theresa May, has proposed that certain family visitors will lose their appeal rights as of 9 July 2012.
In introducing her proposals on 11 May, Mrs May told Parliament:
"The family migration system will work best if it is able to operate efficiently. That means simplifying processes and removing unnecessary waste. The cost of administering appeals against family visit visa refusals is around £29 million a year. No other category of visit visa attracts a full right of appeal. So the Crime and Courts Bill will remove the full right of appeal for family visitors, bringing the process in line with the rest of the immigration system. In the meantime, we will lay new regulations to restrict the full appeal right to those applying to visit a close family member who has settled, refugee or humanitarian protection status in the UK".
The regulations to bring these restrictions into force were laid before Parliament on 18 June 2012 and are intended to come into force on 9 July 2012, along with a whole host of other measures affecting family migration.
The main change introduced by the Regulations is that it will no longer be possible to appeal against a refusal of an application for entry clearance to visit an uncle, aunt, nephew, niece or first cousin. In addition, partners will have to show that they have been in a relationship akin to a marriage or civil partnership for at least the two years before the date of application for entry clearance. Previously, appeals were available to persons who had lived as a member of an unmarried couple for at least two of the three years before the application for entry clearance was made.Also, an additional requirement has been introduced for partners that their relationship must be genuine and subsisting in order to qualify for appeal rights.
From 9 July therefore, it is intended that appeals will be restricted to refusals of entry clearance to visit a:
(a) spouse, civil partner, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother or sister;
(b) father-in-law, mother-in-law, brother-in-law or sister-in-law;
(c) son-in-law or daughter-in-law ;
(d) stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister;
In addition, as stated by Mrs May, it will only be possible to appeal against a refusal to visit a family member if they are settled in the UK or have been granted asylum or humanitarian protection. It will no longer be possible to appeal against a refusal of entry clearance, eg to visit a spouse with limited leave to remain in the UK under the Points Based System.
Assuming the Regulations come into force as planned on 9 July, the only remedy against an arbitrary refusal of leave to enter the UK to visit the newly excluded categories of family members will be by way of judicial review in the Administrative Court. This will be significantly more expensive than pursuing an appeal in the First-tier Tribunal, and will carry the risk of liability for the Home Office's legal costs should the judicial review be unsuccessful. Most applicants for family visits will not wish to take this risk.
The regulations will only apply to applications made on or after 9 July 2012. Consequently, anyone considering applying for entry clearance to visit an uncle, aunt, nephew, niece, first cousin or first unmarried partner, or to visit a family member with limited leave to remain in the UK, may wish to consider doing so before 9 July. Although the abolition of appeal rights will not change the requirements to obtain entry clearance, it will make it much more difficult to challenge an unfair or incorrect decision. Even with these changes coming into place, applicants who are refused a family visit visa will be still able to appeal on limited grounds of human rights. (See the Sawmynaden (Family visitors - considerations)  UKUT 00161(IAC) case.)
Our expert human rights lawyers at Gherson can assist you with challenging a refusal to visit your family members in the UK.