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Administrative Review (Online Course)

What is covered?

Administrative review is now one of the most important aspects of immigration work, providing the only effective opportunity for many individuals to challenge failings in the decision making process. However, many people fail to make the most of the opportunities that it offers, as it is highly technical and requires specialist knowledge to use to the greatest effect.

This is a course about administrative review. It will be useful to any solicitor, caseworker, or paralegal working on immigration cases where there is no right of appeal and the relevant remedy is administrative review. It will also be useful for barristers working on administrative review applications or judicial review applications that challenge refusals of administrative review.

Objectives are to learn:

–          How the administrative review system works – time limits

–          How to spot relevant issues that may be arguable via the administrative review route

–          How to draft effective grounds for administrative review

–          How it is that administrative review dovetails with judicial review

–          Practical hints and tips for making the most of the remedy

Course Extract:

Introduction

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)).

Administrative Review – Introduction of the New System

Period One – Pre-20 October 2014

  • – only Points Based System out-of-country applicants are able to seek administrative review, under a policy outside the Rules

Period Two  – From 20 October 2014 until 2 March 2015

  • – (in-country) applicants Tier 4 Migrants and their dependants can seek administrative review under the Rules .

Period Three – From 2 March 2015 until 6 April 2015

  • – (in-country) Tier 4 Migrants and their dependants.
  • – (in-country) Tier 1, 2 and 5 Migrants and their dependants.

Period Four –  Post 6 April 2015

  • – administrative review is generally available for cases falling within its expressed scope (see below)
  • – note that the “in-country” administrative review rules are extensively amended at this date – watch out before you cite pre-April templates
  • – “out-of-country” administrative review is now under the Rules

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