The Home Office has recently changed its ‘Rights of Appeal caseworker guidance’. The Home Office no longer offers a right to appeal where a person already has leave to remain. The only exception to this is people with 3C leave.
Previously, the guidance provided a right of appeal if the person’s application was refused and considered as a human rights claim. Under the new rules, if a person already holds any form of leave to remain (except 3C leave) and their application is refused, the only remedy is judicial review, unless a right of administrative review is available.
How did the right of appeal work before?
For example, before the change, if one person’s long residence application was refused because they had excess absences, it used to be considered as a human rights claim and a right of appeal was given.
However, this is no longer the case. If it is refused, it will not be considered as a human rights claim unless the application has been varied and is considered under Appendix FM and Appendix Private Life (such as but not limited to having a partner, a child or having been in the UK for 20 years). As such, the person will not have a right of appeal and the only option is to do judicial review.
One point to note is that this change does not apply when one’s asylum claim is refused; namely, holding leave to remain will not prevent one from having a right of appeal should one’s protection claim is refused.
Our thoughts
This change is likely to be controversial since it has always been the case that a person will be given a right of appeal despite having extant leave. Lisa’s Law has been ranked for personal immigration law by the Legal 500 and can be trusted to handle your case.
Please feel free to contact us if you would like to know more or have any questions.
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