Immigration Rules

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Immigration Rules Appendix AR: administrative review

Administrative Review

Introduction

Administrative review is available where an eligible decision has been made. Decisions eligible for administrative review are listed in paragraphs AR3.2, AR4.2 or AR5.2 of this Appendix.

Administrative review will consider whether an eligible decision is wrong because of a case working error and, if it is considered to be wrong, the decision will be withdrawn or amended as set out in paragraph AR2.2 of this Appendix.

Rules about how to make a valid application for administrative review are set out at paragraphs 34M to 34Y of these Rules.

Definitions

AR1.1 For the purpose of this Appendix the following definitions apply:

Applicant the individual applying for administrative review
Case working error an error in decision-making listed in paragraph AR2.11
Control Zone has the meaning given collectively by Schedule 1 to the (International Arrangements) Order 1993, Schedule 1 to the Channel Tunnel (Miscellaneous Provisions) Order 1994 and regulation 2 of the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003. In these Rules it also includes a “supplementary control zone” as defined by Schedule 1 to the Channel Tunnel (International Arrangements) Order 1993.
Valid application an application for administrative review made in accordance with paragraphs 34M to 34Y of these Rules
Pending as defined in paragraph AR2.9
Reviewer the Home Office case worker, Immigration Officer or Entry Clearance Manager conducting the administrative review.
Original decision maker the Home Office case worker, Immigration Officer or Entry Clearance Officer who made the eligible decision.

General Principles

What is administrative review?

  1. AR2.1 Administrative review is the review of an eligible decision to decide whether the decision is wrong due to a case working error.

Outcome of administrative review

  1. AR2.2 The outcome of an administrative review will be:
    1. (a) Administrative review succeeds and the eligible decision is withdrawn; or
    2. (b) Administrative review does not succeed and the eligible decision remains in force and all of the reasons given for the decision are maintained; or
    3. (c) Administrative review does not succeed and the eligible decision remains in force but one or more of the reasons given for the decision are withdrawn; or
    4. (d) Administrative review does not succeed and the eligible decision remains in force but with different or additional reasons to those specified in the decision under review.

What will be considered on administrative review?

  1. AR2.3 The eligible decision will be reviewed to establish whether there is a case working error, either as identified in the application for administrative review, or identified by the Reviewer in the course of conducting the administrative review.
  2. AR2.4 The Reviewer will not consider any evidence that was not before the original decision maker except where:
    1. (a) evidence that was not before the original decision maker is submitted to demonstrate that a case working error as defined in paragraph AR2.11 (a), (b) or (c) has been made; or
    2. (b) the evidence is submitted to demonstrate that the refusal of an application under paragraph 322(2) of these Rules was a case working error and the applicant has not previously been served with a decision to:
      1. (i) refuse an application for entry clearance, leave to enter or leave to remain;
      2. (ii) revoke entry clearance, leave to enter or leave to remain;
      3. (iii) cancel leave to enter or leave to remain;
      4. (iv) curtail leave to enter or leave to remain; or
      5. (v) remove a person from the UK, with the effect of invalidating leave to enter or leave to remain,
      6. which relied on the same findings of facts.
  3. AR2.5 If the applicant has identified a case working error as defined in paragraph AR2.11 (a), (b) or (c), the Reviewer may contact the applicant or his representative in writing, and request relevant evidence. The requested evidence must be received at the address specified in the request within 7 working days of the date of the request.
  4. AR2.6 The Reviewer will not consider whether the applicant is entitled to leave to remain on some other basis and nothing in these rules shall be taken to mean that the applicant may make an application for leave or vary an existing application for leave, or make a protection or human rights claim, by seeking administrative review.

Applying for administrative review

AR2.7 The rules setting out the process to be followed for making an application for administrative review are at 34M to 34Y of these Rules.

Effect of Pending administrative review on liability for removal

AR2.8 Where administrative review is pending the Home Office will not seek to remove the applicant from the United Kingdom.

When is administrative review pending?

  1. AR2.9 Administrative review is pending for the purposes of paragraph AR2.8 of this Appendix and sections 3C(2)(d) and 3D(2)(c) of the Immigration Act 1971:
    1. (a) While an application for administrative review can be made in accordance with 34M to 34Y of these Rules, ignoring any possibility of an administrative review out-of-time under paragraph 34R(3);
    2. (b) While a further application for administrative review can be made in accordance with paragraph 34M(2) of these Rules following a notice of outcome at AR2.2(d) served in accordance with Appendix SN of these Rules;
    3. (c) When an application for administrative review has been made until:
      1. (i) the application for administrative review is rejected as invalid because it does not meet the requirements of paragraph 34N to 34S of these Rules;
      2. (ii) the application for administrative review is withdrawn in accordance with paragraph 34X; or
      3. (iii) the notice of outcome at AR2.2(a), (b) or (c) is served in accordance with Appendix SN of these Rules.
  1. AR2.10 Administrative review is not pending when:
    1. (a) an administrative review waiver form has been signed by an individual in respect of whom an eligible decision has been made. An administrative review waiver form is a form where the person can declare that although they can make an application in accordance with paragraphs 34M to 34Y of these Rules, they will not do so;
    2. (b) administrative review has previously been pending and the individual in respect of whom the eligible decision has been made submits a fresh application for entry clearance, leave to enter or leave to remain. In this case the day prior to the day on which the fresh application is submitted is the last day on which administrative review is pending.

What is a case working error?

  1. AR2.11 For the purposes of these Rules, a case working error is:
    1. (a) Where the original decision maker’s decision to:
      1. (i) refuse an application on the basis of paragraph 320(7A), 320(7B), 322(1A) or 322(2) of these Rules; or
      2. (ii) cancel leave to enter or remain which is in force under paragraph 321A(2) of these Rules; or
      3. (iii) cancel leave to enter or remain which is in force under paragraph V9.4 of Appendix V of these Rules; or
      4. (iv) refuse an application of the type specified in paragraph AR3.2(d) of these Rules on grounds of deception,
      5. was incorrect;
    2. (b) Where the original decision maker’s decision to refuse an application on the basis that the date of application was beyond any time limit in these Rules was incorrect;
    3. (c) Where the original decision maker’s decision not to request specified documents under paragraph 245AA of these Rules was incorrect;
    4. (d) Where the original decision maker otherwise applied the Immigration Rules incorrectly; or
    5. (e) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.
  2. AR2.12 Additionally, where the eligible decision is one specified in paragraph AR3.2, a case working error is also where there has been an error in calculating the correct period or conditions of immigration leave either held or to be granted.

Administrative Review in the UK

Decisions eligible for administrative review in the United Kingdom

  1. AR3.1 Administrative review is only available where an eligible decision has been made.
  2. AR3.2 An eligible decision is:
    1. (a) A decision on an application where the application was made on or after 20th October 2014 for leave to remain as:
      1. (i) a Tier 4 Migrant under the Points Based System; or
      2. (ii) the partner of a Tier 4 Migrant under paragraph 319C of the Immigration Rules; or
      3. (iii) the child of a Tier 4 Migrant under paragraph 319H of the Immigration Rules.
    2. (b) A decision on an application where the application was made on or after 2nd March 2015 for leave to remain, as:
      1. (i) a Tier 1, 2 or 5 Migrant under the Points Based System; or
      2. (ii) the partner of a Tier 1, 2 or 5 Migrant under paragraphs 319C or 319E of the Immigration Rules; or
      3. (iii) the child of a Tier 1, 2 or 5 Migrant under paragraphs 319H or 319J of the Immigration Rules.
    3. (c) A decision made on or after 6th April 2015 on an application for leave to remain made under these Rules unless it is an application as a visitor, or where an application or human rights claim is made under:
      1. (i) Paragraph 276B (long residence);
      2. (ii) Paragraphs 276ADE(1) or 276DE (private life);
      3. (iii) Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
      4. (iv) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
      5. (v) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules, or under paragraph 284, 287, 295D or 295G where the sponsor was granted settlement as a Points Based System Migrant) or has refugee or humanitarian protection status in the UK;
      6. (vi) Part 11 of these Rules (asylum);
      7. (vii) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
      8. (viii) Appendix FM (family members), but not where an application is made under section BPILR (bereavement) or section DVILR (domestic violence),
    4. in which case the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.
    5. (d) A decision made on or after 6th April 2015 on an application for leave to remain made by a Turkish national or their family member pursuant to the UK’s obligations under Article 41 of the Additional Protocol to the European Community Association Agreement (ECAA) with Turkey, and under Article 6(1) of Decision 1/80 of the Association Council established by that agreement.
  3. AR3.3 An eligible decision in paragraph AR3.2 is either a decision to refuse an application for leave to remain or a decision to grant leave to remain where a review is requested of the period or conditions of leave granted.

Administrative Review on arrival in the UK

Decisions eligible for administrative review on arrival in the United Kingdom

  1. AR4.1 Administrative review is only available where an eligible decision has been made.
  2. AR4.2 An eligible decision is a decision made on or after 6th April 2015 to cancel leave to enter or remain with the result that the applicant has no leave to enter or remain, where the reason for cancellation is:
    1. (a) there has been such a change of circumstances in the applicant’s case since that leave was given that it should be cancelled;
    2. (b) the leave was obtained as a result of false information given by the applicant or the applicant’s failure to disclose material facts.
  3. AR4.3 Where the eligible decision is made in the Control Zone, administrative review may not be applied for and will not be considered until after the applicant has left or been removed from the Control Zone.

Administrative Review overseas

Decisions eligible for administrative review overseas

  1. AR5.1 Administrative review is only available where an eligible decision has been made.
  2. AR5.2 (a) An eligible decision is a refusal of an application for entry clearance made on or after 6th April 2015 under the Rules unless it is an application under Part 3 of these Rules (short-term students) or as a visitor, or where an application or human rights claim is made under:
    1. (i) Paragraphs 276R and 276X (partner or child of a member of HM Forces);
    2. (ii) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
    3. (iii) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules) or has refugee or humanitarian protection status in the UK;
    4. (iv) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
    5. (v) Appendix FM (family members), in which case the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.
  3. (b) An eligible decision is also a refusal of an application for entry clearance made on or after 6th April 2015 by a Turkish national or their family member pursuant to the UK’s obligations under Article 41 of the Additional Protocol to the European Community Association Agreement (ECAA) with Turkey.