APL07 - ECM Appeal Review
This is internal guidance for use by entry clearance staff on the handling of appeals lodged outside the United Kingdom (UK). It is a live document under constant review and is for information only.
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APL7.1 What is the purpose of an ECM Appeal Review
The ECM Appeal Review statement replaces the Annex D and ECO Explanatory Statement. The purpose of the ECM Appeal Review is to consider the grounds of appeal and supporting documents. An ECM Review is required for all decisions refused with a full right of appeal (FRA). The ECM must assess whether the appellant has satisfactorily addressed the reasons for refusal. If the appellant has successfully addressed all the points of refusal the decision should be overturned and a visa issued. If the ECM concludes the appellant has failed to address the reasons for refusal a written statement detailing why the decision is being upheld must be provided.
APL7.2 Who should conduct the ECM Appeal Review
All appealed decisions must be reviewed by an ECM and Proviso should be updated accordingly.
An ECO can draft an ECM Appeal Review statement but the ECM must quality assure and sign each draft indicating they are content for the decision to be maintained.
APL7.3 How should the ECM Appeal Review be conducted
On receipt of an appeal, the ECM must review the ECO decision taking into account the grounds of appeal and any additional supporting documentation. Documents supplied at the time of application should be available for consideration if required. The ECM must decide to maintain the ECO decision or concede in light of the grounds of appeal.
Where an appellant provides evidence which appears to discharge the burden of proof and satisfactorily addresses the reasons for refusal the decision should be overturned and a visa issued.
If a decision has been taken to overturn the refusal and issue the visa, Post should write to the appellant within 10 working days requesting submission of the passport. Proviso should be updated accordingly. This 10 day time-frame is intended to minimise delays for appellants who have satisfactorily addressed the reasons for refusal.
If a decision has been made to maintain the decision the ECM must provide clear reasons for this using the Appeal Review template. ECMs must not use standard paragraphs when explaining why the decision is to be maintained.
- Consideration should be given to whether the documents submitted are relevant to the decision. If the documents are not relevant and do not address the reasons for refusal this should be clearly stated. For example, maintenance and accommodation is not met and on appeal the appellant provides only a birth certificate; this should be recorded as irrelevant within the ECM Appeal Review statement.
- Consider whether evidence provided is relevant to the date of decision. If evidence does not relate to circumstances at the date of decision this should be made clear in the review statement.
- All documents submitted with the initial application and with the appeal are listed in the ECM Review statement and form part of the appeals bundle.
APL7.4 What is the standard of proof
The ECM should remember the standard of proof is the balance of probabilities. The balance of probabilities simply means on consideration of the evidence that there is more evidence in favour of one decision than the other. An ECM should assess whether it is more likely than not that an appellant has discharged the burden of proof.
For paragraph 320 decisions where the ECO has evidence that the applicant has used deception, made a false statement or given false information, the standard of proof is 'to a higher degree of probability'. In order to maintain a paragraph 320 decision, we need positive evidence that they have used deception or false representations, or that a document that they have submitted is false. Case-law has determined that the more serious the allegation the more convincing the evidence should be.
APL7.5 Post decision evidence
The relevant date in entry clearance cases is the date of refusal. This is established from case law and s. 85(5) of NIAA 2002. Any material change in circumstance or evidence not reasonably foreseeable after the date of refusal should not be taken into account. In practice this means when conducting the review the ECM should only look at circumstances leading up to and including the date of refusal. An ECM or Immigration Judge is entitled to look at circumstances / evidence after the date of decision only if they relate to circumstances before or at the time of decision.
There is a distinction to be made between new evidence and additional evidence.
New evidence:
New evidence which postdates the decision cannot be considered by the ECM. This evidence should be acknowledged in the Review and the ECM should indicate that this should be used to support a fresh application.
Examples of new evidence
These are common examples and are not an exhaustive list.
- Unexpected increase in funds postdating the decision.
- Sponsor obtains new employment that was not engaged in / expected at the date of decision.
- An offer of accommodation which was not available at date of decision.
- A new sponsor appears in the grounds of appeal. This is not reasonably foreseeable.
Additional evidence:
If evidence relating to the initial application is submitted with the appeal this should be taken into account by the ECM. The most common instances of additional evidence will be documents that the appellant omitted to include with the application.
Examples of additional evidence
These are common examples and are not an exhaustive list.
- A bank statement issued after the date of decision that shows a satisfactory balance on or leading up to the date of decision.
- Satisfactory evidence of accommodation submitted by the sponsor relevant to the decision.
- Evidence of employment at the date of decision which was omitted from the original application.
- A birth certificate evidencing the relationship of parties which was not produced at the time of decision.