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.
The standard of proof in immigration cases is very low; lower than in the criminal courts. Immigration Judges work on the basis of a balance of probabilities i.e. are they more convinced than not of an appellant’s account. Is it more likely than not to be true? The question as to whether this standard is properly applied has been debated and it is suggested that some Immigration Judges spend decades hearing Asylum cases without allowing a single one.
The case of Walayat Begum v Visa Officer Islamabad illustrates the instances of contrary practice (rare, but worrying). In this case, a passport was submitted to the tribunal which belonged to the appellant’s first wife, whom he had claimed was dead. Despite the fact that the passport read ‘The holder of this passport has died. Passport has been cancelled and returned’ and the submission of further evidence to this effect, the Immigration Judge on this occasion determined that there was no ‘direct’ or ‘solid’ evidence of the death.
What can be appealed against in terms of an individual’s immigration history?
The statutory basis for immigration appeals has been simplified somewhat by the Nationality, Immigration and Asylum Act 2002. The procedures, on the other hand, have become more and more complex throughout the twenty-first century. The sections of this Act which outline the decisions against which appeals may be brought are sections 82 and 84. These sections also go into detail about the grounds upon which appeals can be made; for example in asylum cases the majority include a Human Rights convention reason for asylum such as a breach of Articles 2, 3 or 8.
An appealable decision is any major decision made by the Home Office or UK Border Agency in relation to a person’s stay in the UK Examples of appealable decisions include refusal of leave to enter, refusal of entry clearance, refusal to vary leave, a decision to remove and a decision to deport. What is not included in this list of appealable decision is the issue of removal directions. In other words, if the decision to remove or deport has not been appealed against in time then the appellant has no legal route to obstruct the practical implementation of this decision to remove or deport.