Inadmissible evidence in points based applications

With the recent drive to cut down on the rate of Immigration to the UK, a new rule has come into force which will restrict new evidence that can be submitted in points based appeals thereby severely curtailing the number of successful applications that can be made. The announcement was made by  Damian Green, in which he stated:

“Section 19 of the UK Borders Act 2007 will come into force on 23 May 2011. Section 19 restricts the evidence an appellant can rely on at such an appeal to that which is submitted to and considered by the UK Border Agency in support of an application.

Reforming the immigration system and reducing the level of immigration to a sustainable number is one of the big tasks of this Government. Our goal is an improved system that commands the confidence of the public and serves our economic interests. We have made clear that we will take a robust approach, that we will tighten up our system, stop abuse and welcome only the most economically beneficial migrants. This Government has already delivered a new annual limit on non-EU economic migrants and has announced reforms to the student visa system to be implemented over the course of the next year. These measures are aimed at attracting the brightest and the best, whilst reducing the level of net migration and tackling abuse.

People wishing to remain in the UK under the Points Based System are required to submit all relevant evidence in support of their application at the time that application is made. This enables caseworkers to make the right decision in the first instance, often avoiding unnecessary and expensive publicly funded appeals. It also protects the integrity of the immigration system, ensuring all necessary checks can be made and any deception identified.

But this system has been subject to misuse at the expense of the taxpayer. Individuals already in the UK but unsuccessful in their application to extend their time here have been using the appeals system as a free second application process – putting in evidence at the appeals stage which should have formed part of their application. Our management information shows that around two-thirds of PBS appeals allowed by the Tribunal are due to submission of further evidence at appeal.

It is not right that the taxpayer should foot the administrative and appeals bill where this information should have been put forward as part of the original application or where a second application including all the necessary information (for which we will charge) is the most appropriate route to securing a grant of leave. Section 19 will restrict the type of new evidence that can be taken into account by the Tribunal. It will prevent circumvention of checks, helping restore public confidence in our immigration system and contribute to wider improvements to reduce the overall cost of the appeals system.”

The proposed change

Section 19 affects the jurisdiction conferred on the Upper Tribunal by amending section 85 of the Nationality, Immigration and Asylum Act 2002. Section 85 stipulates the kind of evidence the Asylum and Immigration Chamber of the First Tier Tribunal is and is not entitled to take into account when deciding appeals against immigration decisions.

The new section 85A will restricts the evidence which the Tribunal can consider to that which was originally submitted by the person appealing when he or she made the application to the UKBA, unless it is relevant to any point being pursued on the appeal which is different to whether the decision is in accordance with the Immigration Rules or is unlawful for some other reason. Evidence will also be allowed to be considered by the Tribunal to prove that a document already submitted is genuine or valid, or if it relates to the exercise by the Secretary of State of a discretionary power not related to the points based system. So where an application for leave to remain is refused under a general ground for refusal this new section wouldn’t operate to restrict evidence used to show that the refusal on that basis was incorrect.

The introduction of this provision will cause unnecessary hardship to people making points based applications. To make sure everything is in order an applicant will need to wade through the main body of the immigration rules, the various appendices, the policy guidance documents, and the application form. Sometimes there are contradictions, and the application forms certainly do not explain all of the relevant requirements. The documents provided in support of their applications will have to conform to the strict letter of these rules and there will be no room for discretion. Failure to provide the information requested in the correct format will lead to an unsuccessful application.  A failed application will lead to the additional expense of either having to reapply thereby having to pay another fee to the UKBA to have the application processed or to r pursue a claim for judicial review. Appeals will only be pursuable on limited grounds.

What you should do

With the above changes it is imperative that you seek specialist legal advice at the outset of making any type of application. At Immigration and Visa Solicitors we can assist your with your applications for any form of leave to remain (or for entry clearance) under the points based system at the outset and help you comply with the strict requirements of the UKBA requirements, thereby eliminating the stress caused in submitting such applications. Our team of experienced and professional solicitors will be able to guide you through the process step by step and eliminate the possibility of failure by complying with the strict letter of the law.

Our Immigration Experts are able to give specialist legal information and advice in this area of law. To contact one of our Solicitors or Barristers please click here or call 0845 8622 529.

Categories UK Immigration, UK Immigration Policy, UncategorizedTags
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