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| Ms Ehiribe |
The
United Kingdom
has in place an appeal system against the refusal of applications for entry
clearance (visa) or in the case of those already in the country, further leave
to remain or a variation of leave to remain. However the appeal system is
all set to change today.
Late last year the government proposed an introduction to fee charges for
appeals against adverse immigration decisions from October 2011 and a
consultation was carried out. That consultation closed in January
2011. October 2011 came and went and some thought it was safe to exhale
and then on Friday 9th December 2011 the UK Border Agency (UKBA) announced that
the proposed changes will take effect from Monday December 19th 2011.
The changes are far reaching and will take many by surprise. The changes
and details include the following:
· Charge a fee for appeals
following refusal of an application. A proposed fee of £80 for paper
appeals and £140 for oral hearings. These fees are payable by each
individual appellant and so a family of 4, for example, will each pay a
separate fee just as in the application
· All appeals refused outside
the UK will be lodged in the UK thereby removing the previous option of
lodging at the refusing post
· There will be no refund to an
Appellant if the appeal is subsequently withdrawn, is out of time or invalid
· An Immigration Judge has the
power to award costs against the UKBA to recover the lodgement fee if the
appeal is successful but only where the decision to refuse is so clearly wrong
and all the required information was submitted at the time of the decision
In 2000 the UK government introduced appeal fees for family visitor appellants
but they were scrapped pretty quickly because they simply did not work.
Ten years later the same idea was raised and extended not just to family visit
appeals but almost right through all the categories, including
settlement. Immigration appeals are currently wholly funded by taxpayers
and the government wishes to reduce this substantial cost to the taxpayer and
shift some of the cost burden to the users of the Tribunal system – immigration
appeals are heard by the Immigration and Asylum Chamber (IAC) of Her Majesty’s
Court and Tribunals System (HMCTS).
The details of the new system will be published today the 19th of December 2011
– when the changes come into effect, which act by itself, gives very little
time for potential appellants and their representatives to familiarise
themselves with a whole new system that also involves a fee.
The Response Paper published in May 2011 following the consultation gives an
idea of what anyone who is faced with a refusal will have to contend with.
In the first place payment for the appeal will be taken before the appeal is
processed. The government has stated that its preferred method will be by
credit/debit card or by bank or wire transfer. For appellants outside the
UK
this may pose untold problems. As for the argument as to why appellants
have to pay in order to lodge an appeal in the first place, the government’s
position is that if they could pay a not insubstantial application fee and have
had to show adequate funds for their maintenance in the UK, then they can pay
the appeal fee. Third party payment will be acceptable and so those who have
family or friends in the UK
can hopefully count on them to make payment on their behalf.
The government’s decision to start what it describes as a single lodgement
system whereby all appeals must be lodged in the UK does not appear to take
into consideration that for many overseas appellants there will be the added
difficulty of ensuring that appeals are safely and timeously lodged, given the
cost and the vagaries of some countries’ postal systems. The argument is
that all appeals will be collated in one place unlike the present double
lodgement system which is unwieldy, creates duplication and takes more
time. It is far easier for those who are appealing inside the UK as the
postal system is reliable and appeals can be lodged by fax without the constant
worry that the power supply will go off halfway through the process.
Considering that the refusal rate in Nigeria is relatively high at 31% (2010
figures) it is clear that anyone who is issued a refusal notice with a right of
appeal will need to consider very quickly whether to appeal and if so, how best
to do so, whether by post, courier or fax, whether by asking for a paper appeal
which means the appeal will be considered by an Immigration Judge on the basis
of the documents submitted and any written arguments put in support of the
appeal or whether indeed to opt for an oral hearing which a sponsor or UK
representative can attend. An Immigration Judge has discretion to decide
whether an appeal should be considered on the papers or by way of an oral hearing
regardless of the choice that has been made and paid for by an appellant.
So if an appellant has paid for a paper hearing and the Immigration Judge
prefers an oral hearing, no further fee will be paid by the appellant but if an
appellant asked for and paid for an oral hearing and the Immigration Judge
decides to deal with the appeal on the papers, a refund of the difference in
lodgement fees will be made on application by the appellant.
The fact that an immigration judge can award costs against the UKBA on a
successful appeal can only be a good thing because it means that a more robust
and effective decision making process will be put in place since, with the new
system, wrong decisions will cost the UKBA money. The UKBA will be unable
to appeal against the award of costs alone except the substantive appeal goes
further up the Tribunal chain in which case the issue of costs can be revisited
and a decision made to uphold, vary or quash the order of the initial
Immigration Judge. The Upper Tribunal can award costs against the UKBA in
a further appeal even where no such award was made at the initial appeal
hearing.
As stated above, more information about how these changes will be implemented
will be published by the UK
government today. The changes will only affect refusal notices
issued from today and so for anyone whose application is refused before
today, there is no appeal lodgement fee and the option to lodge the appeal with
the refusing post or directly to the Tribunal in the UK is still available.
Ehiribe is a Solicitor of England and Wales
and a Solicitor and Advocate of the Supreme Court of Nigeria. info@walthann.com
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