No more right to appeal for immigration decisions – what next? 30/05/2014
No more right to appeal for immigration decisions – what next?
A new law called the Immigration Act 2014 was given “royal assent” on 14 May 2014. This means the UK Parliament has approved the terms contained within this new law. What is relevant to immigrants is that there will no longer be a right to appeal in the future. Like how Tier 1 Entrepreneur visa refusals are being dealt with by ‘Administrative Review’ where the Home Office will review its own decisions. This is what will happen to all visa refusals in the future, except for asylum cases which maintains appeal rights. If the Administrative Review application is not successful, then a special type of appeal called ‘Judicial Review’ is available. However, this is a costly method and can take many months before a court decision is made.
In this week’s article, we explain how our client Ms G was refused her Tier 1 Entrepreneur visa. We proceeded to do an Administrative Review for her and succeeded. Finally, we will also provide an update on the Tier 1 Investor visa where the £1 million investment is proposed to be converted into £2 million.
Background to Ms G’s case
Ms G and her cousin were going to invest in a restaurant in England. She was going to invest £50,000 and her cousin would invest £150,000. A partnership agreement was made between Ms G, her cousin and the current two owners of the restaurant. In return for the £200,000 investment, Ms G and her cousin would have a percentage share in the business. A business plan was written which highlighted the strengths, weaknesses, opportunities and threats of the business. Financial projections were also attached showing anticipated future sales.
Both Ms G and her cousin submitted their Tier 1 Entrepreneur visa application at the same time to the British Embassy in Shanghai. On 26 March 2014, Ms G’s cousin was granted his visa but Ms G’s visa was refused. Although Ms G scored full points (95 points), the Home Office did not believe Ms G was a genuine entrepreneur and therefore awarded her zero points instead. They gave the following reasons:
- Ms G attended an interview on 26 March 2014 and she was unable to answer basic questions about the business such as its annual turnover.
- Ms G says that she will invest £50,000. However, based on a previous immigration application, she said she was earning £800 working in a company in China. It would therefore take more than 5 years to save up £50,000, excluding daily living costs.
As Ms G already had a tourist visa, she came from China to the UK to consult us on 14 April 2014.
I asked Ms G how she responded to the immigration officer when asked about the business turnover, her response was that her cousin would take care of the financial affairs. I then asked whether the immigration officer asked where the £50,000 came from and she said that he did, and that she responded it was from her personal savings. She was not asked about her current employment in China. It appeared that a full transcript was required as I wanted to see the questions the immigration officer asked together with Ms G’s answers. Helpfully, Ms G made a note of this transcript after her interview on 26 March 2014.
Preparing the Administrative Review
I drafted the grounds for Administrative Review as well as Ms G’s witness statement. In her witness statement I translated all the questions that she was asked and all the answers that she gave from Chinese into English.
In drafting the grounds, I argued the Entry Clearance Officer (ECO) has failed to consider all the other questions Ms G has answered correctly. For example, she correctly answered why the restaurant owners wishes to recruit her and her cousin as the partners, the location of the restaurant, that they will introduce Huai Yang cuisine, the premises consists of 2 floors totalling 500 m2 in size and the previous good publicity the restaurant has received. What appears to have happened is the Home Office have refused her visa because of 1 answer they did not consider she answered satisfactory.
As for the source of the £50,000, I argued the ECO failed to ask Ms G whether those monies came from her employment and what type of employment she had. Instead, the ECO made a conjecture based on a previous immigration application she made. It is contrary to natural justice to make a decision without putting this question to her. I also submitted that according to the Immigration Rules, it was not an obligation for the ECO to discover the source of the funds. Instead, it was only an option that they may consider, not must. In light of all the correct answers Ms G gave about the business, she is a genuine entrepreneur and it was not necessary for the ECO to consider the source of funds. Her answers were made more credible because there was physical documentary evidence backing up what she said, i.e. the business plan and partnership agreement matched her answers.
On 9 May 2014, the Entry Clearance Manager overturned the original Entry Clearance Officer’s decision and Ms G is granted her Tier 1 Entrepreneur visa. Ms G sent me a message saying: “This is all down to your work, thank you”.
The Future – Administrative and Judicial Review
In the future, applicants will no longer be able to appeal to the Immigration Tribunals if they are refused their visas. Administrative Reviews to the Entry Clearance Manager will be the first step to take. If that fails, then a special type of appeal called Judicial Review is possible and this type of claim is to be made within 3 months of the refusal date. However, it is very costly and if the case is lost, the applicant will have to pay the Home Office’s legal fees. Permission will also have to be granted by the Court first before the applicant can proceed to a Court hearing. A judge will look at the written submissions to see whether the applicant has an arguable case; if not, the Judicial Review claim cannot proceed further.
Tier 1 investor – an update
We reported in March 2014 that the £1 million Tier 1 investor visa will change to £2 million, as recommended by the Migration Advisory Committee.Soon after this recommendation in March 2014, the Home Affairs Committee (HAC), a department that scrutinises the work of the Home Office, recommended the UK suspends the Tier 1 investor category altogether. They interpreted the report provided by MAC to be saying that investors were abusing the system by buying their citizenship. They referred to Malta where a 1.15 million Euro investment can result in an immediate Maltese passport.
However, the Home Office have not yet followed the recommendations of the HAC and the Tier 1 investor visa still remains. At the moment, only £1 million investment is required. When will it change to £2 million? At the moment no one knows but Maxwell Alves predicts that it could be the end of this year in 2014 when it will change. The original MAC report is 108 pages long and it will take a long time for the Home Office to analyse this report. In particular, having to consider all the various investment activities and how they benefit the UK as well as how the auction of the £2.5 million visa will work will take a considerable amount of time.