If you have received a negative decision from the UK Home Office, or have been notified that you are facing immigration enforcement action, you will need to act quickly to understand your options.
You may opt to accept the decision or you may be considering if you can appeal or challenge the Home Office.
Challenging a Home Office decision
There are only a limited number of ways you may be able to take on the Home Office. Depending on your circumstances and the nature of your case, your options could include:
- Making a new application – whether you have been refused a sponsor licence application for your organisation, or a visa application for you, and you opt to make a new application, you will need to ensure the new application addresses and recitifies the issues which resulted in the initial refusal.
- Appealing the decision – there is no general right to appeal an immigration decision in the UK. Immigration appeals are now limited to cases relating to human rights.
- Pre-Licence Error Correction Procedure – to request reconsideration of a refused sponsor licence application due to an error by the caseworker.
- Administrative review – this is where the Home Office reconsiders the original evidence and decision to determine if an error was made.
- Judicial review – this is where the case is taken to an immigration tribunal to decide if the Home Office made an error and if so, requiring the matter to be reconsidered.
Home Office Administrative Review
There are certain instances where an application for a Home Office Administrative Review can be submitted. This is a request for a different Home Office team, independent of the original decision makers, to reconsider the original application.
If the case is eligible for Administrative Review, you will be informed in your decision letter. Generally, Administrative Review is available to applications for visas in Tier 1, Tier 2 and Tier 5, Investors, Start-ups, Innovators and ILR on a points-based visa route, as well as applications for sponsorship licences.
Administrative Review is only available where there is no right of appeal, and can only be used to dispute the Home Office’s decision based on ‘unconsidered evidence’.
If the applicant is outside the UK, they can only apply for an administrative review if all of the following apply:
- The employee/worker is outside the UK
- They applied outside the UK
- Their application was refused on or after 6th April 2015
- They do not have a right of appeal against the refusal
- They did not apply for a short-term student or a visitor visa (except in S2 Healthcare Visitor visa applications). There is a separate way to request a Home Office Administrative Review for these applications.
Administrative Review should be applied for within 28 days of the decision letter. This application should be made as specified in the refusal letter, ie online, by post or in person. The fee for an Administrative Review is £80.
The response to the Home Office must detail the issues of concern and the reasons you believe were erroneous in being relied on to make the decision. Additional documents may not be required as the application is to reconsider the existing submission, but take advice on your circumstances to verify if additional documetns are needed and how these should be presented and submitted.
The Administrative Review can result in one of four outcomes:
- The review is successful and the initial Home Office decision is withdrawn.
- The review is not successful and the initial decision still stands along with the initial grounds for the decision.
- The review is not successful and the initial decision still stands with one or more of the initial reasons for the decision withdrawn.
- The review is not successful and the initial decision still stands remains but with different or additional reasons to those specified in the initial decision. In such circumstances, Administrative Review may be available under the new reasons for the decision.
Where the Administrative Review is not successful, take advice on your options, which may include escalting the matter to Judicial Review.
Home Office Judicial Review
Judicial Review may be available where there is no other option for challenge of a Home Office decision.
Judicial Review can be used to challenge an unlawful, unreasonable, or procedurally improper decisions made by public bodies. It is a legal measure groups or individuals can take that allow them to challenge in the court how Ministers, Governmental Departments, and other public bodies make decisions. This includes the Home Office.
Judicial Reviews are however limited in their scope, since they are restricted to the issue of ‘lawfulness’ of the Home Office decision. This also means new evidence can generally not be introduced as part of the review process.
The grounds for Judicial Review are narrow and must relate to at least one of the following:
- Illegality (e.g., where there was an error in law in the making of the decision)
- Unreasonableness or irrationality
- Unfairness or procedural impropriety
- The decision beached the Human Rights Act 1998 (usually involving an assessment of proportionality)
Judicial Review can be helpful to those migrants whose visa application has been refused or employers who are facing having their sponsor licence refused, suspended, or revoked. A refusal, suspension or revocation of a sponsor licence can have grave consequences. If you are subject to a licence suspension, you cannot sponsor new migrants, although existing sponsored workers will be allowed to continue working. In cases of revocation, any migrants you sponsor will have their leave to remain curtailed and will have 60 calendar days (or the date of their visa expiry if sooner) to find an alternative sponsor or leave the UK.
It may also be possible to challenge civil penalties using the Judicial Review process.
Before Judicial Review, you will be required to engage with the Home Office and send a letter before claim known as a Pre-Action Protocol letter.
A Pre-Action Protocol letter is a letter before action to the public body whose decision you wish the court to review, in this case, the Home Office. It has a specific format and is designed to avoid litigation and unnecessary costs. The set form of the letter is provided under the Court Practice Rules, and parties should follow the procedure as stipulated within the Protocol.
The letter should contain:
- The defendant and claimant’s names and addresses
- Details of any legal advisers
- The date and details of the decision, act or omission being challenged
- A summary of the facts and the legal basis for the claim
- Contain the details of any information you are seeking together with an explanation why you consider the information necessary and/or relevant
- If there is a third person who is an ‘interested party’, then their details should be included within the letter. The interested party should also be sent a copy of the letter
- Details of the documents that are considered relevant and necessary
- Proposed response date, ideally giving 14 days-notice to the other party
- You should send the letter in good time to enable the response to be considered before the time limit for issuing the claim expires, unless there is a good reason this is not possible.
If the decision is not a positive outcome, you will have to decide whether to escalate the matter further and issue a formal Judicial Review claim. Any claim must be brought within three months of the original decision being given.
If you do not receive a favourable response to the Pre-Action Protocol letter or do not receive a response at all, then you can apply to the Upper Tribunal for permission to apply for Judicial Review. The application is document based and takes place without an oral hearing; the court will either refuse or allow permission based on the papers submitted. If the court refuses the paper application for permission, you may be able to apply within seven days for a renewal of permission for Judicial Review, which will be listed for a court hearing.
Where permission is granted for Judicial Review, the matter will be listed for a substantive hearing where the Upper Tribunal will decide whether the decision of the Home Office is in accordance with the relevant law.
When the court or tribunal rules on a case of Judicial Review, it is not concerned with the merits of the case, but how the decision was made. Therefore, it does not have the power to substitute its decision for UKVI and cannot overturn it. The remedies include:
- A mandatory order that requires the authority or body under review to take specific action e.g., looking again at the decision to refuse, revoke, or suspend a sponsorship licence, or impose a civil penalty
- A prohibiting order restraining the body under review from doing something (e.g., stopping a licence suspension)
- A quashing order setting aside a decision on the ground that it is unlawful
- Damages, restitution, or the recovery of a sum due
- A costs award
Although Judicial Review may lead to a negative decision being sent back to UKVI for reconsideration; it is the last remedy available. It is also a technical and complex area of law, and the process is typically lengthy and costly.
If an application for Judicial Review is unsuccessful, an appeal may be lodged with the Court of Appeal within 21 days of the decision.
Challenging a Civil Penalty for illegal working
If you are found to have employed a worker illegally and in breach of the Prevention of Illegal Working regime, you may be liable for a civil penalty. Each illegal worker will attract a separate penalty of up to £20,000 per illegal worker.
If you have been notified by the Home Office that your organisation is liability for a civil penalty, you may be able to object or challenge the decision where:
- Your organisation is not in fact liable for the penalty, e.g. because you are not the employer of the illegal worker.
- You have a statutory reason e.g.; you carried out the necessary due diligence and document checks.
- The amount of fine is too high e.g., the Home Office failed to apply mitigating circumstances.
The maximum penalty you can pay is £20,000 per illegal worker. And the amount you will have to pay depends on whether you have been found to have employed illegal workers previously, whether you reported the illegal worker to the Home Office (as soon as you became aware of their situation), whether you co-operated with the Home Office and your history of compliance with your employer duties to prevent illegal working. The amount payable also hinges on when the employee started working for you.
If you accept the fine, and pay quickly within the stated timeframe, you can pay a reduced penatly. You may also be able to arrange to pay the fine by instalments.
Failure to pay the penalty, make an objection or appeal by the due dates, will cause the Home Office to start court action against you. If the Home Office is successful, you will have a County Court Judgment made against you, which may impact your credit rating and ability to act as a company director.
It is important to understand the seriousness of employing an illegal worker. It is a criminal offence to knowingly employ an illegal worker where you had reasonable cause to believe the employee did not have the right to work in the UK. If you are found guilty, you could face up to five years’ imprisonment and/or an unlimited fine.
It is possible to avoid incurring a civil penalty by conducting appropriate Right to Work checks. If you carry out suitable document checks, you will be able to claim a ‘statutory excuse’ and will not be liable for a civil penalty. Document checks will not, in and of themselves, protect you against prosecution if you knew or suspected the employee did not have the appropriate permission to work, or could have reasonable known.
The Home Office publishes a list of all companies who have had a civil penalty imposed on them, which is freely available to the public on the Home Office website. The Home Office regularly issues press releases to local and national media, naming companies who have employed workers illegally. This is another reason it is important to know what you can do to help an employee if their visa has been refused.
DavidsonMorris are UK business immigration specialists. We are advisers to UK employers on all aspects of UK immigration compliance and applications. If you have received a negative Home Office decision, you will need to act quickly to determine your next steps. We can advise on options to appeal or challenge a Home Office decision – whether a refused visa application or enforcement action such as a civil penalty or sponsor licence suspension – and the process you will need to follow to engage with the Home Office and assert your rights. For expert guidance on your options, contact us.
Home Office Administrative or Judicial Review FAQs
What does Administrative Review mean?
An Administrative Review is a review of an employee’s immigration visa application, carried out by a different Home Office official than the original decision maker.
What happens if my Administrative Review is successful?
If the Administrative Review is successful, the original decision is withdrawn.
How do I get an Administrative Review for a UK visa?
An employee must apply for an administrative review within 28 days of receiving the original decision (if they are outside the UK) which can be done online at the gov.uk website. The employee has 14 days if they are applying from inside the UK.
How long does an Administrative Review take?
After submitting the online application together with any supporting documents, it is then assessed by the Home Office who usually send out decisions within 28 calendar days of the application.
What is Judicial Review in immigration?
Judicial Review is where someone can challenge the lawfulness of a government decision. This can be a decision of a central government department, another government body such as a regulator, a local authority, or other public bodies performing a public function.
How long does a judicial review take?
To take the Judicial Review process to a full hearing can take months, if not longer. Most cases are settled following negotiation arising from the Pre-Action Protocol letter. If a Judicial Review claim is successful, the decision is either quashed or nullified, meaning the decision has to be taken again.
What are the grounds for a Judicial Review?
The traditional legal grounds for Judicial Review are illegality, irrationality, and procedural impropriety. However, the grounds are flexible and may overlap.
Last updated: 1 December 2020