For those people whose immigration applications are refused and who would formerly have had a right of appeal, and for some who would not have had that right, an ‘administrative review’ (AR) will be available.
As explained in the Explanatory Statement to Statement of Changes HC693, published on 16 October 2014:
The new administrative review process will resolve case-working errors and will do so more quickly than the appeals process it replaces. The reviewer will be a different person from the original decision maker. The Home Office service standard is to determine an administrative review application within 28 days whereas the average time for a Points Based System appeal to be concluded is 12 weeks.
The new AR process is provided for in the new Administrative Review Immigration Rules (ARIR) in HC693; rules 34L-34Y discuss the procedures such as time limit, form and fee, and Appendix AR explains the scope of the remedy. There is also modernised guidance Administrative review.
The ARIR define an Administrative Review as:
the review of an eligible decision to decide whether the decision is wrong due to a case working error.
Paragraph AR2.8 of the ARIR confirms the Home Office will not seek to remove the applicant from the United Kingdom where administrative review is pending (as defined in AR2.9).
An administrative review is available where an ‘eligible decision’ has been made. Eligible decisions are listed in AR3.2 which conveniently summarises when cases entered the new system.
An application cannot be varied by way of an AR application (AR2.6).
It remains to be seen how effective the AR regime will be, but the simultaneous loss of the right of appeal to an independent tribunal will certainly not help to inspire confidence in the internal AR process. It is unlikely that the Home Office will see Administrative Review as an appropriate forum for debating the interpretation of the Rules: the example they give of a decision maker applying the immigration rules incorrectly involves an unequivocal misinterpretation of the rules.
Extension of leave to remain
One important feature of the remedy is that it brings with it a statutory extension of leave to remain, , as section 3C of the IA 1971 is now amended to cover administrative review as well as pending “in-time” applications and appeals, such that leave to remain is now statutorly extended where:
(d) an administrative review of the decision on the application for variation—
(i) could be sought, or
(ii) is pending.
Because this automatic extension of leave bars the making of another application once an application has been refused, it will be necessary for a person who wants to make a speedy further application rather than pursue the administrative review route to complete an ‘Administrative review waiver form’ (AR2.10). In any event the making of a further application of any kind is deemed as withdrawing any pending administrative review (r34X(4)).
