ILR Application Refused: Your Options, Administrative Review, Fresh Application or Judicial Review

Why ILR Applications Are Refused: Common Grounds

ILR applications are refused on one of three broad bases: failure to meet a substantive eligibility requirement (continuous residence, absences, salary, language, Life in the UK); a Good Character finding (criminal conviction, tax discrepancy, immigration breach); or a procedural ground (missing documents, incorrect application form, unpaid NHS surcharge).

The refusal letter will specify the ground or grounds of refusal. Reading the refusal letter carefully and understanding whether the refusal is based on a caseworker error, a disputed factual issue, or a clear evidential gap is the essential first step in determining the appropriate response.

Option 1: Administrative Review

Administrative Review (AR) is available where the refusal was made by the Home Office and the applicant believes the decision contained a case working error. It is not an appeal on the merits, it is a review of whether the caseworker made a mistake in applying the rules to the facts.

The 14-Day Deadline

Where the applicant is in the UK, an AR application must be submitted within 14 calendar days of service of the refusal decision. This deadline is strict and cannot ordinarily be extended. Immediate action is therefore required upon receipt of a refusal decision.

What Can Be Challenged on AR

AR can be used to challenge: an incorrect assessment of the evidence (for example, where the caseworker miscalculated absences); an incorrect application of the Immigration Rules to the facts; a failure to take into account evidence that was submitted; or a procedural error in the decision-making process. AR cannot be used to submit new evidence or to correct a genuine gap in the original application.

AR Success Rates

The Home Office publishes data showing that a significant proportion of AR applications result in the original decision being withdrawn, either because a caseworker error is identified or because the Home Office elects not to defend a borderline decision. Where the refusal was genuinely based on a caseworker mistake, AR is the fastest and most cost-effective remedy. 

Option 2: Fresh Application

Where the ILR refusal was not based on a caseworker error but on a genuine gap in the evidence or a failure to meet a requirement at the date of the original application, the appropriate response is usually a fresh application once the deficiency has been remedied.

Immigration Status During a Fresh Application

If the original ILR application was made before the applicant's existing leave expired, Section 3C of the Immigration Act 1971 extends that leave automatically while the application (and any AR) is pending. However, Section 3C leave is not extended to a fresh application made after the AR is determined, if the fresh application is not made before the Section 3C leave ends, the applicant may become unlawfully present. Careful management of Section 3C leave is essential.

Fixing the Deficiency Before Reapplying

A fresh application should only be submitted once the reason for the original refusal has been definitively resolved. Reapplying with the same evidence pack and hoping for a different outcome from a different caseworker is not a sound strategy and may result in a refusal with adverse findings that complicate future applications.

Option 3: Judicial Review

Judicial Review (JR) is available where neither AR nor a fresh application is appropriate, typically where the refusal was unlawful (for example, where it failed to take account of relevant human rights considerations, or where the Home Office acted outside its statutory powers). JR is not a merits-based appeal; the Administrative Court does not substitute its own view for that of the Home Office on factual questions. It assesses whether the decision was lawful, rational and procedurally fair.

Pre-Action Protocol and Timelines

Before issuing JR proceedings, the applicant's legal representative must send a Pre-Action Protocol letter to the Home Office setting out the grounds of challenge and inviting a response within a defined period (usually 14 days for immigration cases). JR proceedings must ordinarily be issued within three months of the date of the decision being challenged.

Interim Relief: Preventing Removal

Where there is an imminent risk of removal, the applicant may apply for an interim injunction (known as a 'rolled-up' hearing or a stay) to prevent removal while the JR application is considered. This application must be made urgently and requires legal representation.

Frequently Asked Questions

Is there a right of appeal to the First-tier Tribunal for ILR refusals?

Most ILR refusals do not carry a right of appeal to the Immigration Tribunal. The principal remedy for ILR refusals is Administrative Review. Where a human rights claim is also made, a right of appeal may arise, legal advice is essential to identify whether this applies in your case.

What is my status in the UK while the AR is pending?

If your ILR application was made before your existing leave expired, Section 3C leave applies. You remain in the UK lawfully while the AR is pending. Check whether your leave includes the right to work, as conditions vary.

How long does Administrative Review take?

The Home Office's target turnaround for AR decisions is 28 days, though in practice decisions can take longer. During this period, Section 3C leave continues.