Reconsideration After Visa Refusal
Reconsideration is a review by the Home Office of a decision made in the UK on an application for one of the following:
- Further, limited or indefinite leave to remain
- Transfer of conditions (TOC)
- No time limit (NTL) It will usually be about a refusal decision but may also be about aspects of an approval, for example, the period of leave granted.
- Turkish European Community Association Agreement (ECAA)
The Home Office is not legally required to reconsider a decision made on an application for leave to remain in the UK. When an applicant has a right of appeal or administrative review, the correct method to challenge the decision is to lodge an appeal or administrative review. However, there are limited circumstances (set out below) where a reconsideration request can be submitted.
Applicants refused without a right of appeal or administrative review can:
- Seek a judicial review of the decision;
- Make a fresh application for limited or indefinite leave to remain, if they believe they can show they meet the requirements of Immigration Rules;
- In the case of refused TOC or NTL applications, submit a fresh application which addresses the reasons why the original application was refused
The Home Office will normally only reconsider applications, if:
- There is no right of appeal against the decision, unless the decision was made before 6April 2015 and meets the requirements set out in this policy;
- There is no right of administrative review against the decision;
- The reconsideration request was made on or after 13 November 2012, it relates to a granted application with no right of administrative review, and the applicant believes the type of leave granted or the expiry date of the leave is incorrect;
- The reconsideration request was made on or after 13 November 2012, relates to a refused application and the applicant has new evidence to prove the date of application;
- Providing new evidence to prove that documents submitted with the application are genuine;
- Identifying relevant material, which was not available to the caseworker but was received by the Home Office before the decision date (you will need to provide evidence of posting);
- The reconsideration is a legacy request submitted before 13 November 2012 and there are still reasons to reconsider the decision.
The reconsideration request must:
- Be submitted in writing
- Be sent to the Home Office by the original applicant or their legal representative
- Explain why the decision is incorrect or inconsistent with existing policy, stating how it did one or more of the following: - failed to take account of, or misinterpreted, relevant evidence submitted to the Home Office before the date of the decision was not in line with relevant law, policy or guidance.
The applicant can also make a reconsideration request to:
- Prove the date of application
- Prove the documents provided with the original application were genuine
- Identify relevant material, which was not available to the caseworker but was received by the Home Office before the decision date
Time limit for making a reconsideration request
The reconsideration request must be submitted within 14 working days of the deemed date of receiving the decision, for all decisions made on or after 6 April.
Applications submitted after this deadline has expired must normally be rejected, unless both the following apply:
- There are exceptional reasons which prevented the applicant from making a request within the time limit
- The request was made as soon as reasonably practicable. The applicant may need to provide evidence of the exceptional circumstances.
For decisions made before 6 April, the deadline is 3 months from the deemed date of receiving the decision.
The deemed date of receiving a decision sent by post to a UK address is 2 working days after the decision was posted, unless the migrant can prove they received the decision on a later date.
When a reconsideration request lapses
An applicant’s reconsideration request will lapse if they have:
- Been granted leave in another category
- Left the UK and their leave has expired or lapsed
- Been removed or deported from the UK
- Appealed the decision under reconsideration and exhausted all their appeal rights
- Sought judicial review of the decision and permission was refused or the decision was subsequently upheld at the substantive hearing
The effect of a fresh application
For decisions made on or after 9 July 2013, if an applicant makes a reconsideration request and then submits a fresh application for limited or indefinite leave to remain, this will have the effect of withdrawing the reconsideration request. If the migrant makes a reconsideration request about a decision made on or after 9 July 2013 after making a new application, you must reject the request. For more information on what can and cannot be treated as reconsideration.
Applicant’s status after submitting a reconsideration request
If an applicant makes a reconsideration request, it does not:
- Provide applicant 3C or 3D leave, whilst you are reconsidering the decision (although they may otherwise have leave under section 3C if there is an appeal pending in respect of the decision) the decision made on a reconsideration does not itself trigger a right of appeal although may be susceptible to judicial review;
- Necessarily stop the Home Office from taking any removal action while the reconsideration request is outstanding; section 78 of the Nationality, Immigration and Asylum Act 2002 prevents removal when an appeal is pending but a reconsideration request is not a pending appeal, so a migrant in this position is liable to removal.
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