This post collates the details relating to the legal framework for appealing against immigration and related decisions concerning:
- the Immigration & Asylum Chamber of the First Tier Tribunal & Upper Tribunal;
- onward appeal rights, with appeal arrangements in different jurisdictions;
- applicable statutory fees for appealing against a refusal decision;
First Tier Tribunal and the Upper Tribunal
For filing an appeal against an immigration refusal decision the legal framework consists of two tribunal tiers i.e.:
- the First Tier Tribunal; and
- the Upper Tribunal;
Both tiers are managed by HM’s Courts & Tribunals Service and have immigration and asylum chambers responsible for immigration appeals.
First Tier Tribunal
Appeals are initially made to First-tier Tribunal that can:
- either allow the appeal;
- or dismiss it;
The Upper Tribunal is the superior court of record. It is a separate body from First Tier Tribunal, and its decisions are made by the judges of Upper Tribunal only. The Upper Tribunal decides whether the First-tier Tribunal has made a mistake of law and, if it has, it can either:
- make any decision or directions the First Tier Tribunal could have made (having judged whether an error in law has been made);
- direct the first-tier tribunal to remake its decision;
Besides, the Tribunal Procedure Rules for each tribunal tier equip them to make findings on the timeliness (appropriate timing) and efficacy of appeals, either at or before the hearing.
Permission to Appeal to the Upper Tribunal
Decisions made by the First Tier Tribunal can be appealed to the Upper Tribunal by either party (i.e. either the appellant or respondent from the First Tier Tribunal).
Permission to appeal to Upper Tribunal must first be sought from the First Tier Tribunal. If permission is rejected, an application can be lodged directly with the Upper Tribunal.
B) Onward Appeal Rights in the United Kingdom | Appeals Against UK Visa and Immigration Refusal Decisions
Domestic onward rights of appeal are derived from where the most recent hearing has taken place – are made to the appropriate UK jurisdiction:
- Court of Appeal in England and Wales;
- Court of Session in Scotland;
- Court of Appeal in Northern Ireland;
Permission for An Onward Appeal
Initially, permission to appeal to these courts must be sought from Upper Tribunal (Immigration & Asylum Chamber). If permission is denied, applications may proceed directly to the appellate court of the applicable jurisdiction. Further onward rights of appeal are addressed to Supreme Court of the United Kingdom.
C) Fees | Appeals Against UK Visa and Immigration Refusal Decisions
Under the First Tier Tribunal (Immigration & Asylum Chamber) Fees Order 2011 (the 2011 Order) individuals must give a fee if they wish to appeal against an immigration decision, which can include a decision to refuse:
- an entry clearance; or
- to vary leave to enter or remain; or
- a certificate of entitlement; or
- European residence documentation;
Article 5 of the 2011 order grants exemptions from appeal fees and sets out that no fee is payable for an appeal against some decisions including:
- revoking indefinite leave to enter or indefinite leave to remain in the UK;
- depriving the right of abode or citizenship to an applicant;
- a decision for making a deportation order;
- removing certain people who are not lawfully in the UK;
Similarly, appellants need not pay a fee if they receive:
- asylum support;
- legal aid;
- local authority benefits u/s 17 of the Children Act 1989;
Appeal fees are the obligation of Her Majesty’s Courts & Tribunals Service (HMCTS).
If an appeal is allowed u/s 23A of the Asylum & Immigration Tribunal (Procedure) Rules 2005, a tribunal can order the Home Office as a respondent to meet costs up to the entire amount of the fee paid (depending on the particulars of the case).