What is an Administrative Review and how is it different from an appeal?
If your visa application
is refused, you may be given a right to submit an administrative review. This
is not an appeal and it is not an alternative to an appeal.
The difference between an appeal and administrative
review.
An appeal is considered
by the court, by an independent judge, ie independent from the Home Office who
made a decision to refused your application.
An administrative review
is considered by the Home Office, i.e. by the same organisation who refused
your application, but by a different caseworker. A review is effectively re-consideration,
written as a procedure in the Rules, designed to judge whether the original
decision was wrong, such as if a visa officer did not follow the Rules correctly.
For example, we had a case of a spouse of a UK citizen where Financial
Requirement under Category B was not calculated according to the Appendices FM
ad FM-SE, it was clearly (to us) a calculation error, resulting from the visa officer
applying the method of calculation incorrectly. The Home Office, i.e. UK Visas
and Immigration does make mistakes and human errors, so an administrative review
is the way to correct those. It is much harder to challenge the refusals, which
were based on the balance of probabilities or genuineness, such as a genuine Entrepreneur
or genuine relationship.
We at 1st
4Immigration have to assess the refusal first and decide whether there is a
reasonable chance of administrative review to be successful. If we believe that
your visa refusal was within the Rules then it would be more appropriate to
submit a fresh application, addressing the reasons of refusal.
Processing time for a
review is also shorter than for an appeal, the difference can be several month,
thus giving the migrant less time to prepare a “Plan B” while remaining in the
UK.
What is your status while appealing or
waiting for a review to be considered?
If you submit your
application for an appeal, or for an administrative review, on time, i.e.
within the deadline given to you in the refusal letter (usually 14 days), then
your immigration status remains in the same category as you had before you made
the “refused” application. This is assuming you made that application on time
or within 28 days after your previous visa expired. The former is under the
Section 3C of “The Act” and the latter is under the Immigration Rules, which
allow for 28 days overstaying.
For example, if you had a
Tier 4 visa expiring on 1 September 2015
and submitted a Tier 2 application on 31st August 2015. It took the
UKVI until 1 October 2015 to make a decision, so your status until then remains
as Tier 4 (by virtue of the so called Section 3C leave). The decision is a
refusal but you are given 14 days to submit an administrative review, which you
have done, i.e. submitted it on time. Your status continues as Tier 4 for as
long as the review will take. If you win
your review then from the date of “winning” your status will change to Tier 2.
If you lose it then your Tier 4 status will stop on the date of refusal and you
would have 28 days to either make a fresh application (such as correcting the
reasons of refusal or applying under a different category, i.e. as s spouse of
a UK citizen) or to leave the country.
Can I choose between an appeal and administrative
review?
Unfortunately, no, you
can’t. Some visa categories allow for the right of appeal but most don’t. From
2 March 2015 there is no longer a right of appeal under the Points-Based System
categories, such as Tier 1 (Entrepreneur). Appeals for Tier 4 students have
been stopped in 2014.
Appeals are still available
for decisions for spouses and partners of the UK citizens and for most EEA law
applications, such as for a Residence Card for a spouse of an EEA citizen or
for permanent residency.
British Citizenship:
there is neither appeal nor administrative review. There is a process of
reconsideration and it is up to the UKVI staff discretion. It is not an
official process written in the Rules.
Contact us on info@1st4immigration.com or book our Advice Session here: http://www.1st4immigration.com/immigration-advice-sessions.php
