LBW

Monday, 28 December 2015

What Can You Do After Your UK Visa Is Refused?




In the past, a person refused a UK visit visa had options to consider against their refusal. Changes in the law have whittled down these options to a reapplication with added conditions and done away with Entry Clearance Manager’s (ECM) review. There is also a limited right of appeal on human rights ground, but this can only be asserted if a human right claim has specifically been made in your application and been refused by the decision maker.

Entry Clearance Manager Review


Prior to April 2015, an applicant could seek a review of a visa refusal at the consular post. This review was normally considered by an Entry Clearance Manager (ECM) who had the power to review an Entry Clearance Officer’s (ECO) decision on specific grounds of law or fact. However the basis for seeking a review was quite limited. To succeed, an applicant had to establish that the ECO committed an error of law or fact, or misinterpreted the Immigration Rules.

Thus if the ECO refused your application on grounds that you had failed to provide sufficient evidence to show that you will be adequately maintained in the UK because your bank balance disclosed a balance of GHC 6,000.00 when in fact the said balance was £6000.00, you could apply to the ECM to review the decision on the basis of a factual error.

Though this option was limited in scope, it was quite an effective and inexpensive remedy which involved the payment of no visa fee. If the ECM was satisfied that a case had been made for a review they will inform the applicant to submit their passport for a visa to be issued. Sadly this remedy died in April, 2015 and is no longer available against a visit visa refusal.

Reapplication

The only option now (save a limited right of appeal against a human rights claim) against a visit visa refusal is to submit a new application. You will be required to complete a new application form and pay the applicable visa fee. Prior to April, 2015 you could make a reapplication without the need to establish or overcome any basic condition; though you had to establish the basis upon which you disagreed with the previous decision.

However since April 2015, your Notice of Refusal will specifically inform you that your reapplication will likely be refused unless you are able to establish a significant change in your personal circumstances or you provide compelling new evidence with your application.

(i) Significant change in personal circumstances

To succeed in a reapplication you must establish that there has been a significant change in your personal circumstances since your previous application. The Immigration Rules interpret personal circumstances to include among others the credibility of your plans for the visit, your family, social and economic background, previous immigration history and your personal ties to your home country.

To seek a reapplication generally on the basis of a change in your personal circumstances may not be advisable if you wish to reapply immediately after your refusal. The idea is that since your personal circumstances cannot change overnight and that there has to be a reasonable time between the time of your refusal and your next application. What is a reasonable time is quite relative and may depend on the circumstances of each application. In our view, a period of six months or more may be sufficient time for you to make a case for a change in your personal circumstances.

(ii) Compelling new evidence

The other leg for making a reapplication is to provide compelling new evidence with your next application.Unfortunately, “compelling new evidence” is not defined by the Immigration Rules or any of the published guidance. In our view, evidence may be compelling if it was available or had been considered by the decision maker at the time of your application could have led the decision maker to arrive at a different conclusion.

Though new evidence may in a number of cases be documentary, this may not always be so. Therefore, your evidence may be compelling if you are able to establish that the decision maker made an error of law or fact or misinterpreted the Immigration Rules. You may establish this by your arguments without necessarily providing documentary evidence in support.

There is no time limit for which you may make a reapplication if you have compelling new evidence. This may be done at any time after your refusal provided you are able to establish that your evidence is compelling enough to affect the previous decision.

Conclusion

Changes in the law have adversely affected the remedies that previously existed against a visit visa refusal. It is therefore advisable to prepare a good application to increase your chances of being granted the visa the first time rather than expend valuable time and resources on a reapplication after a refusal which may ultimately turn out to be a wild goose chase.

Disclaimer: This article only provides general information and guidance on UK immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information. 

Archibong & Associates





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