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Awan-Legal
Awan-Legal, Solicitor
Category: UK Immigration Law
Satisfied Customers: 128
Experience:  Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
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I have emailed you recently in relation to a young lady who

Resolved Question:

I have emailed you recently in relation to a young lady who had applied for a prospective student visa from Panama City to come to study in England.. The British Embassy have today told her that her application has been declined, for a reason or reasons still to be explained to her. She is absolutely devastated and so am I, as her sponsor ( she is a talented musician, a Cuban national, who plays violin for the Panama Symphony Orchestra, and was to apply to join the Northern College of Music in September 2013 after taking English and A level courses in England). The so-called specialist immigration solicitors failed to note that the Panama City visa office reduced its hours to one day per month in January 2012, so she had to travel to the Bogota office of the British Embassy for the interview. The estimate of the time required for the decision was advised by the solicitors as 4-5 days, but the Embassy took much longer, so she had to stay in Bogota during which time her Colombian visa expired ( which she required as she only has a Cuban passport - no Colombian visa would have been required if she had had a Panama passport) and she incurred a fine. WorldBridge ( who operate the visa office for the British Embassy) are a shambolic organisation which had twice told me incorrectly that the Panama visa office was open during normal office hours - when they admitted that the information on their website was misleading - it was this misleading information which cause the problems- they refused to correct the website when I asked them to do so to ensure that other applicants were not simlilarly misled.


The rejection of the application has demoralised both of us, but I have assured the young lady that I shall strain every sinew to appeal the decision - so my question to you is - is there a right of appeal ? - and , if so, what are the chances of success and how long of a process is it ? . Any other related advice would be appreciated.

Thank you.
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Awan-Legal replied 2 years ago.

Awan-Legal : Hi
Awan-Legal : I am sorry to hear about the problems you faced.
Awan-Legal : Sorry your friend faced.
Awan-Legal : There is no right of appeal for student visas from abroad I am afraid, however, she can apply for an administrative review within 28 days of receiving the decision. The form usually accompanies the refusal.
Awan-Legal : Further information can be found here.
Awan-Legal : http://www.ukba.homeoffice.gov.uk/visas-immigration/studying/adult-students/applying-inside-uk/if-we-refuse-your-application/#
Awan-Legal : The chances of success will depend on the reasons it was refused.
Awan-Legal : You should also put in a complaint against worldbridge.
Awan-Legal : http://www.ukba.homeoffice.gov.uk/aboutus/contact/makingacomplaint/how-to-complain
Awan-Legal : https://www.visainfoservices.com/Pages/SuggestionsAndComplaints.aspx?
Awan-Legal : The decision will take up to 28 days on an administrative review.
Awan-Legal : Good luck and please let me know if you need any further help.
Customer:

Thank you for the advice. Whilst you say there is no right of appeal, you refer to an "administrative review", which itself appears to be a form of appeal from your remarks. In what respect therefore do you regard the "administrative review" as NOT being an "appeal" ? "

Customer:

Is it possible to submit ANOTHER application immediately, as an alternative to a request for an administrative review ( whether by may of another prospective student visa application , or perhaps by way of what I recall is a student visitor visa application) albeit the chance of success might presumably be slim ?

Customer:

Is there any "outside the box" advice which can think of ? - for example, if she were to come to England as a "visitor" would this help ?

Awan-Legal : The difference between an administrative review and an appeal is that the administrative review is reconsidered by the embassy who made the initial decision, whereas the appeal goes to the court/tribunal in the uk before an independent judge for a decision.
Awan-Legal : Yes it is possible to submit a fresh application immediately - wait for the decision to tackle the issues raised.
Awan-Legal : She cannot come as a general visitor and then switch to study , however she can apply for a student visitor. It is better to wait for the decision and see why it is refused first.
Customer:

I am confused by one of your comments. You say that "the appeal goes to the court/tribunal", but your first response said that there was no right of appeal anyway ! Could you please clarify whether there is or is not a right of appeal inthese circumstances. Thanks.

Awan-Legal : Sure - you stated that the admin review and appeal sound like the same thing. I was explaining that an admin review is undertaken by the embassy itself who review the decision. An appeal on the other hand (which is not available for student visas abroad) if it were available would go to a judge to assess (I am just explaining in terms of what an appeal is since you said that an admin review sounds the same). I hope that clarifies.
Awan-Legal : This link may help to explain the difference:
Awan-Legal : http://www.parliament.the-stationery-office.co.uk/pa/cm200809/cmselect/cmhaff/217/21711.htm
Customer:

Thanks again. Just one last point which I should have raised before ( sorry). Given that the "right to be heard" is a fundamental plank of the British legal system, in many spheres, it would seem logical that, especially if as you say overseas students are denied the right to appeal to an Independent Tribunal , then there should be a "right to be heard" when the Embassy reviews its own decision - does one have have the right to be heard at, and be represented at, the Embassy's own internal review ?

Customer:

In addition, is the review by the Embassy required to be carried out by a person other than the person who made the original decision ? ( if not, the chances of the official who refused the visa changing his mind appears to be minimal, given that human nature renders it unlikely that he/she would admit to making a wrong decision in the first instance).

Customer:

Thanks

Awan-Legal, Solicitor
Satisfied Customers: 128
Experience: Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
Awan-Legal and 2 other UK Immigration Law Specialists are ready to help you
Expert:  Awan-Legal replied 2 years ago.
Hi

Thank you for the accept.

The review is undertaken by somebody else at the embassy rather than the decision maker.

The system can be very unfair though as there is no way to be present there and the embassy only takes into account the grounds for review (reasons why you think the decision is wrong based on fact and law). There is a further route though if the decision is very unfair and that is to make a judicial review within a strict time limit of 3 months which allows the case to be considered by a high court judge but can be costly and time consuming. It may therefore be more straightforward to simply put in a fresh application after the review and tackle the refusal issues in the fresh application.

I hope that helps.
Customer: replied 2 years ago.

Hello, Sorry to raise the point again, but may I query the "administrative review" aspect. My reading of the "REFUSAL" paper again shows that there is no specific reference to any right to "administrative review", the only reference to appeal rights being the closing paragraph, which states that "Your right of appeal is limited to the grounds referred to in Section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002" . My then reading of that Section shows that it refers to Human Rights legislation. If they are

not "one and the same", then how does one word the response letter ? - should it read (eg) "In response to the " REFUSAL . . . . " document issued on 8 May 2012 I wish to request an administrative review of the decision under . . . . . ." ( what specific basis does one enter here

?)

A tiny further point also - the "REFUSAL" document shows an incorrect date of birth - shown as 17 June 1999 whereas should be 1993 - does this invalidate it?! ( I suspect a negative reply).

Expert:  Awan-Legal replied 2 years ago.
Hi

That is ok - the appeal rights are restricted to human rights grounds or discrimination but this is unlikely to apply with a points based system visa.

With regards, XXXXX XXXXX review - not "one and the same", then how does one word the response letter ? - should it read (eg) "In response to the " REFUSAL . . . . " document issued on 8 May 2012 I wish to request an administrative review of the decision under . . . . . ." ( what specific basis does one enter here:

You should write the reasons why you dispute the reasons for refusal and can do so on a point by point basis. What reasons were given for refusal?

The incorrect date of birth will not invalidate it but should be pointed out as an error.

Kind regards, XXXXX
Customer: replied 2 years ago.
(1) You appear to be saying that the refusal document gives no indication to the applicant that he/she can request an administratice review. That seems quite unacceptable as there must surely be a legal (and indeed ethical) obligation to advise the applicant of his/her rights if he/she is not satisfied. Commen please ?!

(2) The grounds were largely a purported lack of evidence. Essentially the ECO claimed that there was no evidence to support the applicant's next course of study after the initial 4-month English course ( a daft comment given that the next course would depend upon the results of the english course) and more importanty the contention that she had no social links with Panama City so he contended that she would seek to remain illegally in Britain if the visa expired - a crass contention ( as she told them in a phone call after the interview, her mother and sister still live in Panama City, so she would obviously return to live with them - she also plays violin for the Panama Symphony Orchestra based in Panama City, and is a staunch member of an evangelical church( further facts shown on the application form) - she moved to Panama City from Cuba in August 2010 to live with her mother and younger sister, a few years later than her mother due to legal difficulties only).
Overall, in my view a bizarre refusal.

Would it prejudice her position if I were to arrange BOTH a request for an administrative review ( providing additional evidence - I assume this is permissible) AND a fresh application at the same time ( I would not wish to antagonise) ?

I am still not clear from you how I should complete the sentence of
(say) " I hereby request that you undertake an administrative review in accordance with . . . . . . . . " ( in accordance with WHAT exactly ?)

Thanks.
Customer: replied 2 years ago.
Keren ( the young lady) has just asked me whether it is a good idea to obtain a tourist visa and then pursue the student visa matter whilst she is here in England. Is this POSSIBLE ? - if so :-

(1) Is it really a good idea ?

(2) What restrictions would be placed on her activities here during the term of the tourist visa ?

Thanks.
Expert:  Awan-Legal replied 2 years ago.
Hi

Karen may come to the UK for a short course on a student visitor for up to 6 months. The UKBA states:

If you are an adult and you want to undertake a short course of study in the UK (such as a beginner's English Language course or a work-related training course), you might be able to come here as a student visitor.

http://www.ukba.homeoffice.gov.uk/visas-immigration/visiting/student/

She would not be allowed to work whilst here and cannot extend her visa to any other category in the UK. If she intends to apply for a student tier 4 visa after that, she would need to return abroad and apply again for this visa.

Given that she wishes to come and pursue her music course, the best option would be for her to make a fresh application for a tier 4 visa covering the objections of the embassy or pursue an administrative review first if she can show the decision was wrong.

I hope that helps.
Customer: replied 2 years ago.
With respect of course you have NOT answered the questions in EITHER of my last two messages. Please review my PREVIOUS messages to you. and now reply to those last 2 messages.
Thank you.
Expert:  Awan-Legal replied 2 years ago.
My apologies - I advised on a student visitor as this would at least allow her to do a short course in the UK. A tourist visa would not allow her to study, work or change into any other visa.

An administrative review is an automatic right and the ukba states as follows:

http://www.ukba.homeoffice.gov.uk/visas-immigration/studying/adult-students/applying-inside-uk/if-we-refuse-your-application/#

...in accordance with the right to an administrative review and the error of law made in respect of the decision.

You should then explain the reasons she will go back as above and that this was evidenced by her interview etc although no new evidence can be submitted in support of an administrative review.

Did the college letter provide any information to show that she would progress onto the next course?

You can submit both which may be the quickest route as the embassy can take a further 30 days for the review and if you are not successful, then you will have to submit a fresh application then anyway.
Customer: replied 2 years ago.
(1) To answer your question, the Berlitz Manchester letter did not specifically refer to the A-level course which would then follow, as that letter was enclosed purely to evidence the course itself. Elsewhere in the application there were references to the later intention to take A levels.
(2) The only point not dealt with by you is my advising you that it was surely a REQUIREMENT ( both LEGAL and ETHICAL) that the refusal letter must specify what action the applicant could then take to CHALLENGE THE DECISION. The inclusion thereof is surely necessary especially for the unrepresented applicant. I am a practicing accountant and in the world of tax law HMRC are required, in analogous circumstances, to notify the taxpayer of his/her rIght of appeal, and my knowledge of other non-taxation matters is similar, the essential point being the requirement to notify the private citizen of his legal rights.
Expert:  Awan-Legal replied 2 years ago.

Hi

Unfortunately, there is no requirement for the Embassy to specify the right to an administrative review in the refusal letter as follows:

Administrative Review is a non-statutory scheme; that is there is no legislation setting out what it covers or who is eligible to apply. The policy is contained in this guidance.

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/Tier4migrantguidance.pdf

It is unusual for the refusal letter not to specify the right to an administrative review but I am not sure that it is a breach of law to not mention it given that it is non-statutory and contained in the guidance. It is worth mentioning, however, that this information was not provided which is very unfair to a standard lay person who may not know about the procedure for an administrative review. You can even put a complaint in as follows:

http://ukinpanama.fco.gov.uk/en/help-for-british-nationals/comments

Please do bear in mind that the success rate is not great in terms of an administrative review but it is still worth putting both in.

When you submit the fresh application, cover as much of the issues raised as possible and with evidence so that it cannot be refused again.

On the case of the A level course, this is an error of law as the cas letter is for each individual course to be looked at separately - the cas letter for the A levels only needs to be provided when she applies to extend her visa.

As long as she meets the criteria for what is an acceptable course of study as follows, then she should not have been refused:

http://www.ukba.homeoffice.gov.uk/visas-immigration/studying/adult-students/can-you-apply/course/

Customer: replied 2 years ago.

Many thanks for your last reply.

(1) Your point re the "lay person" is of course precisely the point which I made to you myself - at the risk of apparent sanctimony, I do professionally often pursue such matters of principle in the hope that the relevant "authority" ( in my case almost always H M Revenue and Customs) rectifies matters so that other persons ( invariably taxpayers) do not "suffer" from such breaches of law/practice/ethics by those authorities.

(2) Sorry, but "cas letter|" ( used twice in your message) is not an expression known to me. What does it mean please ?

(3).Finally, and most definitely your most brilliant comment thus far ( apologies for any apparent condescension !), I am "over the moon" at, but at the same time distressed at ( in terms of the improper handling of the case by the Embassy) your advising me of the ERROR OF LAW in the Embassy's using the using the purported "failure" to supply evidence of the next course on the application form.

Without your substantial legal knowledge, I had assumed that there had been an omission (from the application form) of the information regarding the next course ( ie the A level course), attributable to the barristers who prepared the application form ( they did in fact delete the reference to the second course from the "replies" which I sent to the questionnaire form which they sent to me). I would hope that you would agree that this breach of law should be drawn to the attention of the Embassy in the administrative review application. Most importantly, and as I shall require that key information in any event in any request for a judicial review at the High Court, could you please indicate to me the SPECIFIC LEGISLATION WHICH THE EMBASSY HAVE BREACHED.

With grateful thanks for this key information, I look forward to your early comments please.

Expert:  Awan-Legal replied 2 years ago.

Hi again

CAS is the Confirmation of Acceptance for studies (similar to the visa letter) provided by the institute to the Applicant to give to the Embassy.

The relevant law is Paragraph 245ZV of HC 395 (the Immigration Rules) and Appendix A specifically paragraphs as follows:

120. Points will only be awarded for a Confirmation of Acceptance for Studies (even if all the requirements in paragraphs 116 to 119 above are met) if the course in respect of which it is issued meets each of the following requirements:

(a) The course must meet the following minimum academic requirements:

i. for applicants applying to study in England, Wales or Northern Ireland, the course must be at National Qualifications Framework (NQF) / Qualifications and Credit Framework (QCF) Level 3 or above if the Sponsor is a Highly Trusted Sponsor; or

ii. for applicants applying to study in England, Wales or Northern Ireland, the course must be at National Qualifications Framework (NQF) / Qualifications and Credit Framework (QCF) Level 4 or above if the Sponsor is an A-Rated Sponsor or a B-Rated Sponsor; or

iii. for applicants applying to study in Scotland, the course must be accredited at Level 6 or above in the Scottish Credit and Qualifications Framework (SCQF) by the Scottish Qualifications Authority and the Sponsor must be a Highly Trusted Sponsor; or

iv. for applicants applying to study in Scotland, the course must be accredited at Level 7 or above in the Scottish Credit and Qualifications Framework (SCQF) by the Scottish Qualifications Authority if the Sponsor is an A-Rated Sponsor or B-Rated Sponsor; or

v. the course must be a short-term Study Abroad Programme in the United Kingdom as part of the applicant's qualification at an overseas higher education institution, and that qualification must be confirmed as the same as a United Kingdom degree level by the National Recognition Information Centre for the United Kingdom (UK NARIC); or

vi. the course must be an English language course at level B2 or above of the Common European Framework of Reference for Languages; or

vii. the course must be a recognised Foundation Programme for postgraduate doctors or dentists.

(b) The Confirmation of Acceptance for Studies must be for a single course of study except where the Confirmation of Acceptance for Studies is:

(i) issued by a Sponsor which is a Recognised Body or a body in receipt of funding as a higher education institution from the Department for Employment and Learning in Northern Ireland, the Higher Education Funding Council for England, the Higher Education Funding Council for Wales, or the Scottish Funding Council to cover both a pre-sessional course of no longer than three months' duration and a course of degree level study at that Sponsor; and

(ii) the applicant has an unconditional offer of a place on a course of degree level study at that Sponsor; and

(iii) the course of degree level study commences no later than one month after the end date of the pre-sessional course.

(c) The course must, except in the case of a pre-sessional course, lead to an approved qualification as defined in the Tier 4 (Sponsor) guidance published by the UK Border Agency on the UK Border Agency website.

(ca) A course leading to an approved qualification must be offered by a Sponsor that, if approval at a specified level is required from a relevant awarding organisation, has that approval at the specified level, as set out in the UK Border Agency sponsor guidance published on the UK Border Agency website.

(d) Other than when the applicant is on a course-related work placement or a pre-sessional course, all study that forms part of the course must take place on the premises of the sponsoring educational institution or an institution which is a partner institution of the migrant's Sponsor.

(e) The course must meet one of the following requirements:

i. be a full time course of degree level study that leads to an approved qualification as defined in UKBA guidance;

ii. be an overseas course of degree level study that is recognised as being equivalent to a UK Higher Education course and is being provided by an overseas Higher Education Institution; or

iii. be a full time course of study involving a minimum of 15 hours per week organised daytime study and, except in the case of a pre-sessional course, lead to an approved qualification, below bachelor degree level as defined in the Tier 4 (Sponsor) guidance published by the UK Border Agency on the UK Border Agency website.

(f) Where the student is following a course of below degree level study including course -related work placement, the course can only be offered by a Highly Trusted Sponsor. If the course contains a course-related work placement, any period that the applicant will be spending on that placement must not exceed one third of the total length of the course spent in the United Kingdom except :

(i) where it is a United Kingdom statutory requirement that the placement should exceed one third of the total length of the course; or
(ii) where the placement does not exceed one half of the total length of the course undertaken in the UK and the student is following a course of degree level study and is either:

(a) sponsored by a Sponsor that is a Recognised Body or a body in receipt of public funding as a higher education institution from the Department of Employment and Learning in Northern Ireland, the Higher Education Funding Council for England, the Higher Education Funding Council for Wales or the Scottish Funding Council; or

(b) sponsored by an overseas higher education institution to undertake a short-term Study Abroad Programme in the United Kingdom.

The course is of course a pre-sessional course and so the CAS is required for a single course of study as above.

Please also note that she could not use the same CAS number for a fresh application though and the institute would need to provide her with a new one.

http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part6a/

The relevant rules are contained in these links (she is a Tier 4 General Student):

http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part6a/

http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/appendixa/

Customer: replied 2 years ago.
Sorry to trouble you again, but a further point has arisen from my fully reviewing the refusal document over several hours today ( including drafting the request for an administrative review). My review establishes incidentally that there is not a vestige of truth in any of the contentions in the refusal document about purported failure to provide evidence.

The specific matter now revealed is the claim by the Embassy( which you have advised me is illicit) that evidence of the details of the NEXT course has been omitted from the application form. You have explained why this information is not required. The solicitors submittted the application online. I have now accessed the border agency website, followed the links for prospective student visas, and located the current application form. Question 8.16 STILL asks for DETAILS OF THE NEXT COURSE OF EDUCATION ! ! I suspect that the Embassy have based their contention on this PAPER version of the application form : the ONLINE version of the form, to reaffirm, does NOT include this question. From the comments in your last message, Q 8.16 is an illicit question. I have a theory here - that you are absolutley correct in your interpretation , and that the Embassy have realised this as well, and have deleted the question from the ONLINE application form, but forgotten to (1) delete the question from the paper application forms and to (2) tell their staff that the question was incorrectly shown on the paper application forms - their failure to do so has resulted in the illicit contention that evidence of the next course was omitted from the application submitted by my friend.
Any comments please ? Thanks in anticipation.
Expert:  Awan-Legal replied 2 years ago.

Hi

That is ok.

You can mention those points in the grounds for review.

If you have any further questions, kindly address for my attention and I can answer them directly. Good luck with the process.

Kind regards,

Awan Legal

Awan-Legal, Solicitor
Satisfied Customers: 128
Experience: Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
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