What evidence can an immigration judge at the Immigration & Asylum Chamber usually accept?
At an appeal hearing at the Immigration & Asylum Chamber, the immigration judge may ‘consider evidence about any matter which he or she thinks is relevant to the substance of the decision’ (section 85(4) of the Nationality, Immigration and Asylum Act 2002).
The evidence that may be considered includes evidence relevant to both the appellant’s time in the UK (if any), and the time spent in their home country. It may also include evidence which was not originally submitted to the Home Office at the time of the initial application, but which has been correctly served on both the Home Office and the Immigration & Asylum Chamber since this point.
Note that under 85(5) of the 2002 Act, in entry clearance and certificate of entitlement cases, evidence is limited to matters arising before and on the date of decision. If, for instance, it was found that a sponsor did not have enough funds to maintain a spouse, only bank statements relating to the date of decision could be accepted as evidence.
Can an Immigration Judge accept fresh evidence?
Under the Immigration Act 2014, no new evidence can be put forward unless it demonstrates that previously submitted documentation is genuine and meets the rules.
This means that, in some cases, there are appellants who will in reality have to make a fresh application, pay a further visa fee, and ensure 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 on the burden and standard of proof in Immigration & Asylum Chamber hearings?
The burden of proof is on the appellant to prove their case. This means that if the original Reasons for Refusal letter (in the Notice of Immigration Decision) raised concerns over a lack of evidence substantiating one area of their claim, it is for the appellant to provide such evidence sufficient to persuade the Immigration Judge to allow their appeal.
The standard of proof in immigration cases is lower than in the criminal courts: the appellant must prove their case on the balance of probabilities – ie. it must be more likely than not that their case is made out. However, the question as to whether the standard of proof is properly applied in such cases has tested the courts in recent years, and it is not clear cut.
What can be appealed to the Immigration & Asylum Chamber?
The statutory basis for immigration appeals is set out in the Nationality, Immigration and Asylum Act 2002, amended by the Immigration Act 2014. Under the law as it currently stands, the right of appeal is limited to circumstances where:
- The appellant’s Protection Claim (ie. for asylum or humanitarian) is refused: a Protection Claim is were an individual claims that their removal from the UK breaches the Refugee Convention, or their rights to humanitarian protection
- The appellant’s Human Rights Claim is refused: a Human Rights Claim is a claim that a decision is in breach of the individual’s human rights under the Human Rights Act 1998, eg. their right to a private and family life in the UK under Article 8 of the European Convention on Human Rights
- The appellant’s protection status (asylum or humanitarian) is revoked
- The Home Office has made a decision under the European Economic Area (EEA) Regulations, for example, that it has decided to deport the appellant, or refused to issue a residence document
- The Home Office has decided to take away the appellant’s British citizenship
If your situation does not fall within any of these categories, you can ask the Home Office for an administrative review of the decision.