What evidence can an Immigration Judge at the Immigration & Asylum Chamber usually accept?
The whole case relating to the appellant is reheard at an appeal hearing at the Immigration & Asylum Chamber. This means that the Immigration Judge acting for the tribunal may ‘consider evidence about any matter which it thinks relevant to the substance of the decision’, according section 85(4) of the Nationality, Immigration and Asylum Act 2002.
This includes evidence relevant to both the appellant’s time in the United Kingdom (if any) and the time spent in their home country. It also, in most cases, includes evidence which was not originally submitted to the Home Office at the time of the initial application but that has been correctly served on both the Home Office and the Immigration & Asylum Chamber since this point.
According to section 85(5) however, in entry clearance and certificate of entitlement cases (i.e. those in which the appellant is outside the United Kingdom and trying to enter) then evidence is limited to matters arising before and on the date of decision. For instance, if it were found that a sponsor did not have enough funds to maintain a spouse, then only bank statements relating to the date of decision could be accepted as evidence – not bank statements relating to the time just prior to the hearing date, for example.
Can an Immigration Judge always accept fresh evidence?
The Immigration Rules are constantly changing on this issue – particularly with regards to in-country appeals, for instance by international students applying for or extending visas. Immigration Judges will soon not be allowed to accept any fresh evidence in these types of cases, i.e. any evidence that was not before the Visa Officer who made the initial Immigration Decision to refuse the application. This will mean that appellants will have to make a fresh application, pay the visa fee again and ensure that all the correct documentary evidence is supplied. International students should contact the International Office at their university as members of staff are becoming increasingly involved with applications and appeals to ensure that their students are not removed during their studies.
What is the law regarding the burden of proof and standard of proof in Immigration & Asylum Chamber hearings?
In immigration cases, the burden of proof is on the appellant which means that if the original Reasons for Refusal letter (a Notice of Immigration Decision) brought up concerns over a lack of evidence substantiating one area of their claim then the appellant themselves must provide such evidence (documentary or indeed oral, at the hearing) in order to convince the Immigration Judge to allow their appeal.
For more information on:
- What can be appealed against in terms of an individual’s immigration history?