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‘Unnecessary’ appeals to end

‘Unnecessary’ appeals to end

I’m full of good news today! The rumours were true and section 19 of the UK Borders Act 2007 is being brought into force as of 23 May 2011. It makes most Points Based System appeals, er, pointless. There’s a news item on the UKBA website and Damian Green had this to say about it:

“Section 19 of the UK Borders Act 2007 will come into force on 23 May 2011. Section 19 restricts the evidence an appellant can rely on at such an appeal to that which is submitted to and considered by the UK Border Agency in support of an application.

Reforming the immigration system and reducing the level of immigration to a sustainable number is one of the big tasks of this Government. Our goal is an improved system that commands the confidence of the public and serves our economic interests. We have made clear that we will take a robust approach, that we will tighten up our system, stop abuse and welcome only the most economically beneficial migrants. This Government has already delivered a new annual limit on non-EU economic migrants and has announced reforms to the student visa system to be implemented over the course of the next year. These measures are aimed at attracting the brightest and the best, whilst reducing the level of net migration and tackling abuse.

People wishing to remain in the UK under the Points Based System are required to submit all relevant evidence in support of their application at the time that application is made. This enables caseworkers to make the right decision in the first instance, often avoiding unnecessary and expensive publicly funded appeals. It also protects the integrity of the immigration system, ensuring all necessary checks can be made and any deception identified.

But this system has been subject to misuse at the expense of the taxpayer. Individuals already in the UK but unsuccessful in their application to extend their time here have been using the appeals system as a free second application process – putting in evidence at the appeals stage which should have formed part of their application. Our management information shows that around two-thirds of PBS appeals allowed by the Tribunal are due to submission of further evidence at appeal.

It is not right that the taxpayer should foot the administrative and appeals bill where this information should have been put forward as part of the original application or where a second application including all the necessary information (for which we will charge) is the most appropriate route to securing a grant of leave. Section 19 will restrict the type of new evidence that can be taken into account by the Tribunal. It will prevent circumvention of checks, helping restore public confidence in our immigration system and contribute to wider improvements to reduce the overall cost of the appeals system.”

Note that the change will affect even ongoing current appeals that have been lodged already, which is quite a surprise and may be of questionable legality.

Section 19 carves out exceptions to the general principle that new evidence is admissible on an in-country appeal, under s.85(4) of the 2002 Act. The exceptions are set out in the new section 85A of the 2002 Act, which will provide as follows:

85A Matters to be considered: new evidence: exceptions

(1) This section sets out the exceptions mentioned in section 85(5).

(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.

(3) Exception 2 applies to an appeal under section 82(1) if—

(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),

(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and

(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).

(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it—

(a) was submitted in support of, and at the time of making, the application to which the immigration decision related,

(b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),

(c) is adduced to prove that a document is genuine or valid, or

(d) is adduced in connection with the Secretary of State’s reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.

The problem lies not with any purported abuse of the appeal system but with the insane complexity of the Points Based System, which even very well educated professionals simply cannot understand without hours of study. To make sure everything is in order an applicant has to wade through main body of the immigration rules, the various appendices, the policy guidance documents, which are often 40 pages long and more and the application form. Sometimes there are contradictions, and the application forms certainly do not explain all of the relevant requirements.

The success rate of these appeals seems to be 54%, so there was certainly something going wrong with the system somewhere.

Immigrants caught out by the complexities of the PBS will now need to reapply (and pay another huge fee to UKBA) or pursue a claim for judicial review. Appeals will only be pursuable on limited grounds.

That said, one of those grounds is a breach of human rights, and cases like Pankina and CDS have rather opened the door to human rights based challenges to absurd PBS decisions…

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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