The removal of full rights of appeal for family visit visas in 2013 has led to a legal dilemma for those considering a challenge to a refusal: should they give up, re-apply, attempt a human rights appeal or launch an application for judicial review? The problem seems all the more acute with many reports of refusals to spouses or relatives who cannot meet the harsh family settlement rules, or who would rather live abroad but still want to be able to visit their spouse’s friends and family in the UK.

This is an old but perennially popular blog post on Free Movement so it has been updated and republished with the help of Iain Halliday of McGill & Co. The two major developments since the last update in May 2015 are the tribunal cases of Charles and Baihinga. For detailed discussion of these two cases, see my previous post here.

What follows is a fairly detailed examination of the legal issues. The short version is that for those for whom re-applying is waste of time, an appeal to the First-tier Tribunal is probably a better idea than an application for judicial review as long as there is a good argument that the visit engages human rights on some level.

Re-apply

If it works, the simplest way to deal with a visa refusal is to re-apply, submitting a new application form with new evidence and a new fee. But is it likely to work or is it a waste of time and money?

If the application was refused because insufficient evidence was submitted, for example bank statements or similar, then this should be quite easy to correct.

It is far from unknown for a visa official simply to ignore or overlook evidence that was actually submitted, though. Where this happens it is unfair to have to pay another fee and a letter to the Entry Clearance Manager asking for reconsideration is worth considering.

There are some circumstances where it is clear that reconsideration or re-application is not likely to be available and a legal challenge will be needed instead. For example:

• If the previous refusal states that the applicant has been excluded from the UK for a certain period of time, for example for use of deception. If there was some sort of simple and obvious misunderstanding or mistake it may be possible to remedy this by a reconsideration request or new application but in most cases a legal challenge will be needed.
• Where the evidence relied on was rejected as being from an inadequate or unverifiable source. There is little point re-submitting the same documents a second time.
• Where the reason stated by the visa officer is that the applicant is not a genuine visitor or does not have an intention to return. There are usually no extra documents that can be submitted to prove one’s case once these subjective intention issues arise.

Some visa application posts are more reasonable and make better quality decisions than others. Quality of decisions in Islamabad is very poor, for example, whereas New York is far better. A reapplication or reconsideration request is well worth considering at the latter post because someone might actually engage with the issues rather than merely mindlessly re-refusing.

If reconsideration or re-application are not likely to work or have been tried and failed, it is time to consider legal action.

Right of appeal

As of July 2013 it is only possible to appeal to the immigration tribunal against refusal of a visit visa where the grounds of appeal are on human rights grounds. Whether or not the visit engages human rights considerations therefore determines whether there is a right of appeal.

The problem is that a person may attempt to appeal on human rights grounds but, many months later and after having paid appeal fees and legal costs, a judge may decide the visit does not really raise human rights grounds and therefore there was no right of appeal in the first place. A lot of time, energy and money will have been wasted bringing the appeal, and the chance lost to challenge the refusal by other means such as an application for judicial review.

To say this is unsatisfactory is an understatement.

Case of Mostafa

In the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) the Upper Tribunal considered this question of when human rights might be engaged in a visit visa case. The tribunal held that where a couple are married human rights are certainly engaged but expressed some scepticism whether human rights might be engaged in other, wider circumstances. The determination is considered further below. Only family life relationships were considered, by the tribunal, though, not private life, and the tribunal also omitted to consider whether a different standard for engagement of human rights was relevant for a temporary visit as opposed to a settlement application. After all, in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 the Court of Appeal in a unified judgment looked at Costello-Roberts v United Kingdom (1993) 19 EHRR 112 then held:

It follows, in our judgment, that while an interference with private or family life must be real if it is to engage art. 8(1), the threshold of engagement (the “minimum level”) is not a specially high one. Once the article is engaged, the focus moves, as Lord Bingham’s remaining questions indicate, to the process of justification under art. 8(2). It is this which, in all cases which engage article 8(1), will determine whether there has been a breach of the article.

Lastly, the appellant in Mostafa was unrepresented, meaning that no legal argument was presented on these issues and no onward appeal was realistically feasible.

Home Office guidance

The Home Office has published guidance for immigration officials on when human rights might be engaged in visit visa cases: Considering human rights claims in visit applications.

This is only the Home Office view and it is for the tribunal to decide in each case what does and does not amount to a human rights claim, but the guidance is nevertheless instructive as a sort of minimum standard. The guidance asks four questions:

1. Does the application say that it is a human rights claim?
2. Does the application amount to an implied human rights claim if it does not say that it is a human rights claim?
3. Are the matters raised capable of engaging human rights?
4. Does the human rights claim have any prospects of success?

The Home Office view is that refusal of visit visas will not generally raise human rights issues. It is only where the visit is between a spouse or other life partner or a parent and a minor child that the Home Office considers human rights might be engaged, and even then if visits can be conducted in another country then human rights are supposedly not engaged.

In Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC) the Upper Tribunal provides some guidance on what is meant by a “human rights claim”. Such a claim exists where it appears:

…from the totality of the information supplied that the appellant was advancing a case which, on the facts, properly required the caseworker to consider whether a discretionary decision to be made under the relevant immigration rule or rules needed to be taken by reference to Article 8 issues, or to look beyond the provisions of the immigration rules and decide, if those rules were not satisfied, whether an Article 8 case was nevertheless also being advanced.

In short, where private or family life issues are raised and need to be decided by the Home Office, there is a human rights claim and a right of appeal. Interestingly, Baihinga also suggests that a “bare” or “unsubstantiated” claim is, very arguably, still a claim and may still give rise to a right of appeal. The Home Office’s guidance does not currently reflect this understanding, claiming that a “mere assertion” is insufficient.

The Home Office’s guidance adopts an excessively narrow view of human rights that is not consistent with case law, particularly the cases of Mostafa and Baihinga, so you should not necessarily accept the department’s view. It is not for the Home Office to determine whether you have a right of appeal or not, so if you think you can potentially succeed you can lodge an appeal anyway irrespective of what the Home Office thinks and then try to persuade the tribunal that human rights are engaged and that you have a right of appeal.

What sorts of visits might pass the test?

It might be thought that visits between close family members, particularly visits intended to maintain a relationship, would engage human rights protection at some level: without face to face visits, any relationship is surely doomed over time.

For example, a visit from one spouse to another, particularly if separated by the harsh family settlement rules, would on the face of it engage Article 8. A visit of a young child to the UK to see a parent or a parent to see a young child would also appear to engage human rights protection at some level. The same might be said of a visit of an elderly relative to see his or her children and family in the UK where settlement is not an option because of the Catch-22 nature of the new dependent relative rules.

But what about a sibling visiting another sibling? Or an adult child visiting one of his or her parents? These sorts of visits might be said to be an important part of modern international family life, but are they protected by the European Convention on Human Rights?

The Home Office is forever arguing in immigration cases that private and family life can be continued from abroad by means of visits and ‘modern means of communication’. It might be hard to turn around now and say that visits are off the menu. We lawyers know that hypocrisy is no bar to a legal argument, though, and the Home Office would say that there is no need for the visit to be in the UK: the UK-based person could travel abroad instead, if necessary to a third country.

Case law tells us that there is not usually considered to be an inherent protected Article 8 family life between adults, such as an adult child and his or her parent or two adult siblings, at least for immigration settlement purposes. See Advic and other domestic cases that have followed it, such as ZB (Pakistan) [2009] EWCA Civ 834 and PT (Sri Lanka) [2016] EWCA Civ 612.

Beyond mere relationships

The approach of the old family visit regulations was exhaustively to list who was meant by family and then simply limit the right of appeal on that basis. Such a rigid legal or blood relationship approach is probably not the right one when it comes to a human rights assessment. Other factors might be relevant.

Relationship alone might be sufficient in some cases, such as spouse visits or parent-child visits. Visits of grandparents to the UK or siblings to see one another might be sufficient alone or might need something extra. In any case it would certainly be a good idea to include evidence as to why the visit is important at a subjective level to the people concerned.

Visits by de facto adopted children or extended relatives who grew up together or step children would arguably also potentially engage human rights protection.

We might well need to look at the individual facts of the case and the strength, depth and quality of relationship.

Permanent vs temporary

The fact is that much Article 8 jurisprudence arises from settlement cases, where the Home Office has been able to argue there is a strong public interest in people not falling within the Immigration Rules not being admitted. There have to be strong human rights arguments in such a person’s favour for a refusal of residence decision to be disproportionate.

The arguments are very different in the context of visits to the UK where a person is not being permanently admitted, here forever more simultaneously to steal our jobs and women, claim benefits, go on crime sprees, not integrate into society and so on (according to The Daily Mail and the government).

Although there are barriers to successfully arguing that human rights are engaged at all in visit situations, if human rights are found to be engaged then the arguments on proportionality are quite different in the context of visits.

However, reasons are always stated in visit visa refusals, albeit one suspects sometimes not the real reasons. The Home Office would say that refusal of a visit visa that does not satisfy the Immigration Rules is always or almost always going to be proportionate. For example, if there are insufficient funds to support the person during their stay or the person will overstay at the conclusion of the visit, a refusal is a proportionate response.

This raises the question of what the legal and factual arguments might really be in practice if there is a right of appeal in a visit visa refusal case.

Not in accordance with the law

Given that the grounds of appeal are limited to human rights arguments the tribunal will confine itself to considering human rights grounds rather than looking at the terms of the Immigration Rules. The position is succinctly summarised by the Upper Tribunal in Charles (human rights appeal: scope) [2018] UKUT 89 (IAC) as follows:

The basic limitation of a human rights appeal is that it can be determined only through the provisions of the ECHR; usually Article 8. A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State’s decision-making under the Immigration Acts, including the immigration rules, unless that person’s circumstances are such as to engage Article 8(2).

But in assessing Article 8 private and family life human rights arguments, the tribunal must follow the famous Razgar [2004] UKHL 27 five step approach:

(i) Will there be an interference by a public authority with the exercise of the applicant’s right to respect for his private or family life?

(ii) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(iii) If so, is such interference in accordance with the law?

(iv) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(v) If so, is such interference proportionate to the legitimate public end sought to be achieved?

Prior to the case of Charles many lawyers argued that the Immigration Rules were relevant to the third Razgar step: whether  the decision is  in accordance with the law. But in Charles the Upper Tribunal held that:

…both Strasbourg and domestic authority suggests that the question is whether the proposed interference (here, deportation) has a proper basis in domestic law, including whether that law is accessible to the person concerned and foreseeable as to its effects.

So, at this stage of the assessment, the tribunal is looking at the quality of the law rather than the substantive content of the law. The visit visa rules are far from clear and, due to the subjective nature of the “genuine visitor”, arguably their effects are not foreseeable. However it would be a stretch to argue that, as a result, all visit visa refusals have no proper basis in law. The Home Office does, for better or for worse, have a clear legal power to refuse visit visas.

All is not lost. The tribunal went on to say in Charles that where a decision is unlawful, taking remove action (or in the context of a visit visa, refusing entry) “would, quite obviously, represent a disproportionate interference with the Article 8 rights of the claimant”. So if it can be shown that there is a valid appeal on human rights grounds and that the Immigration Rules, as properly understood, were contravened in the making of the decision, the appeal will need to be allowed on human rights grounds on the basis that the decision is disproportionate.  The Immigration Rules are therefore shoehorned into the fifth Razgar step instead, giving the same end result.

This is essentially a conventional Immigration Rules appeal, of course. If the visa official got the facts or law on visits wrong, the appeal would succeed, but on human rights grounds rather than the old “not in accordance with the law” grounds.

The alternative: applying for judicial review

Where there is no adequate alternative remedy, it is possible as a matter of last resort to make an application for judicial review of a decision. Where a visit visa refusal cannot be adequately challenged by way of a human rights appeal, an application for judicial review is therefore available as a potential remedy.

Without knowing how far human rights appeals might be possible in visit visa cases and in which cases, it is basically impossible to know whether an application for judicial review is even possible. It is possible to guess that the Upper Tribunal is unlikely to allow a judicial review application to proceed if there is a possibility of a human rights appeal, though. Settling that question may mean attempting an appeal and having to wait until the First-tier Tribunal makes a decision on whether there is a valid appeal.

There is another possibility. It might be possible to pursue a plain and traditional judicial review application where human rights issues are not relied on in that judicial review and the challenge is to other aspects of lawfulness of the decision. When determining whether judicial review is appropriate, the court would look at whether an appeal to the tribunal would provide an effective alternative remedy. Given that the tribunal is not empowered to consider anything other than human rights arguments, it is eminently arguable that an appeal would not provide an effective remedy in a case which does not turn on human rights arguments. This is speculation on my part, though. We simply do not know the answers to such questions until there have been some test cases.

What does this mean in practice?

If there were some element of choice (there generally is not), an appeal to the First-tier Tribunal is probably preferable as a remedy to an application for judicial review. Both have their advantages and disadvantages, though:

My advice to most people wanting to challenge a visit visa refusal would be carefully to consider whether it might be possible to appeal on human rights grounds. If so, an appeal is probably preferable to an application for judicial review and further an application for judicial review may not be possible without first attempting the appeal. However, where it seems that there are no human rights grounds that can properly be argued, an application for judicial review is available as a remedy.

Some might say that both options can be pursued at the same time. An appeal could be attempted and a judicial review also lodged as a protective measure in case it later turns out there is no right of appeal. The legal costs are high, though, and one of the remedies will turn out to have been a waste of money. In some cases, depending on the circumstances, an appeal can be attempted and if it later turns out there is no right of appeal, a judicial review could then be attempted out of time or if necessary a new visit visa application made, generating a probable new refusal which could then become the subject of an application for judicial review.

The lack of an affordable and effective mechanism for challenging visit visa refusals has led to a marked decrease in the quality of decisions. The reasons provided for refusal are often spurious and important documents are often simply ignored. There is little oversight or accountability and decision-makers can essentially do what they want, safe in the knowledge that few have the money or wherewithal to challenge their decision. The recent difficulties faced by artists seeking entry to perform at Womad and authors due to attend the Edinburgh International Book Festival demonstrate the damaging effect that the lack of a suitable remedy can have.   

This post was originally published in March 2014 and has been updated to take account of developments in the law since then. It is correct as of the new date of publication shown. My thanks to Iain Halliday for his assistance with the most recent update.