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Judicial Review Pre-Action Protocol – a long and complicated battle

September 8, 2020 76

We had an Iranian client who applied to the UK visa centre for a visitor visa so that she could visit her three daughters, who all live in the UK and all of whom hold refugee leave. She is a housewife and she lives in Iran with her husband.

Her visa application was refused by the Entry Clearance Officer but the refusal decision was not entirely logical. The ECO stated that they were not satisfied that she would return to Iran at the end of the visit because she did not have sufficient “substantial ties” in Iran. This seemed odd, bearing in mind that her husband (to whom she had been married for nearly 40 years) was to be staying in Iran for the period of the proposed visit, but a certain complexion was put on the matter when the ECO also stated that all of her daughters had claimed asylum when they came to the UK and this made them question whether she really intended to leave to the UK once she had got here as a visitor. (The clear but unspoken idea being of course that she might claim asylum in the UK as well.)

We did not think that this decision was very fair, not only because it was not very logical but also because her daughters’ asylum claims were based on political issues that were not at all relevant to their mother.

Our client instructed us to challenge the decision by way of Judicial Review Pre-Action Protocol (JRPAP) – which is a kind of threat of legal action in the Upper Immigration Tribunal on the grounds that a decision is flawed. It gives the decision-maker an opportunity to reconsider the decision and decide whether they want to maintain it or not.

We lodged the application and, to our delight, we eventually received an email from UK Visas & Immigration (UKVI) saying that they would re-consider the decision (which implied that they thought that there might be something inadequate about it).

Our client was also delighted, but our collective delight was shattered when we received the new decision. The new decision was also a refusal decision, but made on quite new and different grounds: that the amount of money that our client proposed to spend on the visit was excessive in relation to her husband’s income. This change of tactics seemed a rather mean trick but it is not unheard of.

Our client was very determined and she now instructed is to prepare a fresh JRPAP to challenge the new decision.

We had spotted that there was a significant mistake in the ECO’s maths, and the proposed expenditure on the visit was not as disproportionate as they had calculated.

And, furthermore, both decisions had contained the standard phrase: “I have recognised the importance of family visits…”. Family visitor visa refusal decisions always do seem to contain this phrase somewhere near the beginning, and it is a clear sign that the application is ultimately going to be refused.

But this, we thought, might give us another angle in addition to the faulty maths angle. The ECO said that they understood the importance of family visits; however, as our client’s daughters all held refugee leave on the basis that they would not be safe in Iran they would not, for obvious reasons, be able to visit their mother in Iran, so unless our client got the visa family visits were inevitably going to be difficult.

In our fresh JRPAP application we put both these arguments forward. If the ECO accepted that the maths was wrong then we hoped that the second argument would come strongly into play, especially as they were apparently no longer relying on the idea that our client might be intending to claim asylum in the UK.

Again we received an email from the UKVI saying that the decision would be reviewed. And what happened next was that our client was asked to submit some extra financial documents and she was interviewed over the telephone by the ECO.

And this time we were at last successful. The decision was overturned and our client was granted the visitor visa.

The moral of this story is if you have a strong case you should not give up too easily. Visitor visa decisions are often poorly-prepared and illogical (or “irrational”, to use a legal word) and JRPAP is often hard work and an uphill struggle but sometimes, even in this difficult landscape, it can succeed.

www.getukvisa.co.uk

If you have had a visitor visa application refused and you want to challenge it we may be able to help you.

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