Right of appeal to the immigration tribunal – can they just take it away?

The standard and traditional understanding about immigration appeals was that Government and Parliament could give or remove the right of appeal for unsuccessful visa applicants as they saw fit.

Immigration appeals are heard, in the first instance, before the First-Tier Immigration Tribunal (formally known as the “First-Tier Tribunal (Immigration and Asylum Chamber)”), which is an independent tribunal staffed by Immigration Judges, who are qualified lawyers. It is a proper legal forum, which deals thoroughly with the cases and issues before it.

But in recent years Government and Parliament have progressively taken away appeal rights for various visa categories and so now only some visa categories still have it.

This is not to say that unsuccessful visa applicants have no right to legal redress: some categories have the right to “administrative review” (a very basic appeal process conducted by non-legally trained Home Office caseworkers) and all categories potentially have the right to “judicial review” (a proper legal process conducted by the Upper Immigration Tribunal or the High Court but with a relatively narrow remit).

To put it short, an appeal before the First-Tier Tribunal is the best remedy for a visa refusal, if you can get it, but there did not seem to be any way out of Government’s and Parliament’s power to remove the right of appeal if they wanted to.

This is probably generally still the case, but a remarkable and interesting chink of light was recently created by the High Court in a case called “Celal Akturk”. Mr Akturk had applied to the Home Office in the UK for an Ankara Agreement business visa (the Ankara Agreement being an association agreement made long ago between Turkey and what is now called the EU).

This Agreement can only benefit Turkish nationals, and it has one very unusual feature: the parties to it (which include the UK, being – at the moment at any rate – a member of the EU) are not allowed to make any changes to the way the Agreement is operated to make things more difficult or more onerous for applicants. This part of the Agreement is called the “Standstill Clause”.

Mr Akturk’s visa application was refused and the Home Office told him – as is their current practice – that he no right of appeal, only the right to administrative review. Mr Akturk objected. He argued (or at any rate his lawyers did) that this violated the Standstill Clause because previously there had been a right of appeal for unsuccessful Ankara Agreement applicants but now there was not, because it had been removed.

The case reached the High Court and, no doubt to Mr Akturk’s huge satisfaction, Mr Justice Holman agreed with him. It was, he said, indeed a violation of the Standstill Clause.

Not only this, but he provided some cogent reasoning which was music to the ears of those of us who have been opining for years that the administrative review process is deeply inferior to a proper appeal process.

As he put it: “ In my view, it is clear that the position of the claimant [Mr Akturk], or of someone in his position, since the abolition of the right of appeal and its replacement by administrative review, is markedly less favourable than it was before. The appeal was to an independent judicial body with a further avenue of appeal. Administrative review is performed by an official within the Home Office. On an appeal, oral evidence for and on behalf [of] the applicant could be, and routinely was, heard. The tribunal could substitute its own decision for that of the Secretary of State, whereas administrative review is limited to considering whether the original decision was incorrect.”

Well said Mr Justice Holman. But will this case have any wider effect beyond Ankara Agreement cases, bearing in mind its unusual feature, the Standstill Clause? Probably not we suppose; but at least a senior member of the judiciary has articulated something that, since the administrative review scheme was introduced some years ago, has become blindingly obvious.

But, in any event, if you have received an Ankara Agreement business visa application refusal you might want to take expert legal advice about your situation.

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