Updates, commentary, training and advice on immigration and asylum law

‘Unnecessary’ appeals to end


Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more


By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

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…

Relevant articles chosen for you
Picture of Free Movement

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.


11 Responses

  1. This “public confidence in the immigration system” has a number of meanings. If there was confidence that UKBA staff were able to consider applications correctly and apply their own rules and guidance correctly there would not need to be such a fuss over this as refusals would be fewer and further between. Similarly, applicants under the PBS etc are also members of the public, and so their confidence in the system treating them fairly when they apply (having paid an extortionate fee) is just as important.

  2. Two good things from this:

    1) Caseworkers are supposed to now contact applicants or reps in advance of making the decision to ask for crucial missing documentation. This is what the old work permits team did, and it made for more certainty. This has to be a good thing – though whether it will work for out of country applications is anyone’s guess.

    2) It doesn’t apply to non-PBS applications. That was my main worry, as we all know that what constitutes, for example ‘evidence of subsisting relationship’ is so arbitrary.

    Have you noticed that the news item on the UKBA website doesn’t actually say that it is PBS only? Expect lots of panicky appellants to call….

    1. It wont apply to dependants of PBS applicants as their applications are not ‘considered under a Points based System’. They are located elsewhere in the Rules – under the family category – and no points are required.

  3. The other issue is that by requiring the applicant to reapply rather than appeal, they wouldnt benefit from s3c leave and so would have a gap in their residence if their visa expired.

    Indeed in a lot of circumstances the Immigration Rules state you must have leave when you apply. So it would be like a terrible catch 22, reapply and you cant possibly succeed under the rules…

    1. As Victoria says, it is PBS appeals only, which I don’t think I made clear either and will amend. PBS does not require you to possess leave at the date of application, unusually, so a new application is usually possible – but will leave a person with a gap in their leave.

    2. My mistake, it was clear, I wasnt sure about the leave being required under PBS. I would say though that UKBA have quite happily refused various PBS apps I have seen because of a lack of extant leave. Maybe they will change this approach.

  4. Does this mean that we will have to try to squeeze our client’s applications into Pankina & CDS Article 8 points in order to get a right of appeal?

    How long do we need to show? Is 4 years of a 5 years educational career adequate to establish Pankina & CDS Article 8? Or 4 years of WP/Tier 2?

    These just seem like more hoops put in the way of genuine migrants to jump through and which at some stage down the road are likely to be chipped away at by judges concerned with their unfairness/unlawfulness.

    I feel like we are constantly dancing with the Home Office, one step forward and two steps back!

  5. In the interests of justice and equity presumably this will work both ways? I have little qualm with preparing my Entry Clearance applications fully if a presenting officer is not suddenly going to produce a DVR or other ‘smoking gun’ evidence at the appeal hearing. Something tells me it won’t quite work out this way.