In a recent post on the free movement blog, Darren Stevenson discusses the limitations of challenging Home Office decisions on the basis that they are unfair. He highlights the distinction drawn by the courts between procedural and substantive fairness. Something can be unfair without being unlawful. The consequences of immigration decision often seem very unfair, however sympathetic circumstances are, unfortunately, not enough. For a decision to be unlawful procedural unfairness or irrationality is required.
Due to the abolition of the right of appeal to an independent Tribunal for many types of immigration applications, the only way to challenge an adverse decision from the Home Office is through judicial review. However judicial review is a much more restrictive process than an appeal. In a judicial review the judge is not deciding whether a person should or should not be issued with a visa. They are deciding whether, when making the decision to refuse the application for the visa, the Home Office decision maker acted unlawfully. This is a very high threshold and one which, as demonstrated in Darren’s post, requires something more than an unfair outcome.
You can read the full post on the free movement site here.
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