Appeal Rights UK under Immigration Act 2014 | Right to Appeal

UK Visa Refusal Appeal Against Immigration DecisionThis relates to appeal rights immigration UK after the implementation of the Immigration Act 2014. Accordingly, the post covers right to appeal against refusal of human rights and protection claim, entry clearance and leave to remain applications, EEA Family permit and deprivation of British Citizenship.

Appeal Rights Immigration UK after the Immigration Act 2014

The Rights of appeal can be exercised against the following decisions:

  1. Refusal of a human rights/protection claim and also revocation of protection status as per Part 5 of Nationality, Immigration & Asylum Act 2002;
  2. Refusal of entry clearance and refusal to vary leave to remain, under a few circumstances, where the application was made before the enforcement of the Immigration Act 2014;
  3. Refusals relating to the issuance of an EEA family permit and also a few other EEA decisions – as per Regulation 26 of the Immigration (EEA) Regulations 2006;
  4. Deprivation of Citizenship – u/s 40A of British Nationality Act 1981.

Limited and No Appeal Rights UK Visa Refusal Letter

Where there is either a limited or no right of appeal mentioned in the Refusal Letter, it may be possible for an applicant to apply for either an Appeal, Administrative Review or a Judicial Review against a refusal decision if it is an eligible decision and if the applicant deems that there has been a mistake made in the assessment of an application.

S 82 of the Nationality Immigration and Asylum Act 2002

The appealable immigration decisions relating to either entering or remaining in the United Kingdom are set out in the subsection 2 of S 82 of the Nationality Immigration and Asylum Act 2002 and provides the Right of Appeal in relation to a UK visa and immigration refusal decision.

Appeal Against Refusal of Leave to Enter

The refusal of leave to enter is Appealable u/s 82(2)(a) of the Nationality, Immigration and Asylum Act 2002.

Leave to enter can be refused at the port if the applicant does not satisfy the requisite requirements so as to qualify for entry. Only a person refused leave to enter who holds a valid entry clearance for the purpose for which he/she seeks entry can appeal against such a refusal decision.

Appeal Against Refusal Entry Clearance UK

Such immigration refusal decisions are Appealable u/s 82(2)(b) of the 2002 ACT. Entry clearance (including visa) will be refused at visa issuing posts overseas if an applicant does not qualify. Not all refusals of entry clearance give a right of appeal (please refer section 88A of the 2002 ACT).

Refusal of a Certificate of Entitlement

Refusal of a Certificate of Entitlement under section 10 of the 2002 ACT is appealable u/s 82(2)(c) of the 2002 ACT.

A Person has No Leave to Enter or Remain in the UK

Refusal to vary a person’s leave to enter or remain in the UK if the result of refusal is that a person has no leave is appealable u/s 82(2)(d) of the 2002 ACT provided that:

  • the application was made whilst the applicant had a leave to enter or remain – (the application was in time); and
  • the applicant’s leave has expired by the time he/she is notified of a decision to refuse further leave;

Decisions relating to Curtailment or Revocation of Leave

A curtailment or revocation of leave decision is Appealable u/s 82(2)(e) of the 2002 ACT if a variation of a person’s leave to enter or remain in the UK when variation takes effect, a person has no leave to enter/remain (curtailment/revocation of leave).

Revocation of Indefinite Leave to Remain UK

The Revocation of indefinite leave to enter or remain under section 76 of the 2002 ACT are Appealable u/s 82(2)(f) of the 2002 ACT.

Removal Decision Appeal Rights UK u/s 82(2) of the 2002 Act

The appealable immigration decisions relating to removal from the United Kingdom are set out u/s 82(2) of the Nationality, Immigration & Asylum Act 2002 (the 2002 act), the details of which are as under:

Removal of a Person Unlawfully in the UK

A refusal decision is Appealable under section 82(2)(g) of the 2002 ACT if a person is going to be removed from the United Kingdom u/s 10(1) (a), (b), (b)(a) or (c) of Immigration & Asylum Act 1999 (removal of a person unlawfully in the UK).

Removal of an Illegal Person and Appeal Rights UK

An immigration decision is Appealable u/s 82(2)(h) of the 2002 ACT if an illegal entrant is about to be removed from the UK by way of directions under paragraphs 8 – 10 of Schedule-2 to the Immigration Act 1971 (control of entry: removal) (the 1971 ACT).

Persons with Statutorily Extended Leave

A refusal decision is Appealable u/s 82(2)(h)(a) of the 2002 act if a person is to be removed from the UK by way of directions u/s 47 of the Immigration, Asylum & Nationality Act 2006 (removal: persons with statutorily extended leave).

Family Member of a Person who is to be Removed

A refusal decision is Appealable u/s 82(2)(i) of the 2002 ACT if a person is to be removed from the UK under paragraph 10A of Schedule 2 (family member of a person who is to be removed) to the 1971 ACT.

Seamen and Air Crews

A refusal decision is Appealable u/s 82(2)(i)(a) of the 2002 ACT if a person is to be removed from the UK by way of directions under paragraph 12(2) of Schedule 2 to the 1971 ACT (seamen and aircrews).

Deprivation of the Right of Abode

A refusal decision is Appealable u/s 82(2)(ib) of the 2002 ACT if an order has been made u/s 2A of the 1971 ACT (deprivation of the right of abode).

Appeal Rights UK Against a Deportation Order

The appealable immigration decisions relating to deportation are set out in section 82(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 act).

Deportation Order under Section 5(1) of the Immigration Act 1971

A decision to make a deportation order u/s 5(1) of the Immigration Act 1971 (the 1971 act). The deportation process applies if:

  • the Home Office decides deporting the person is conducive to the public good, or the person is related to someone to be deported {3(5)(a) & (b) of the 1971 ACT);
  • deporting a person has been recommended by a criminal court u/s 3(6) of the 1971 act;

These decisions are Appealable u/s 82(2)(j) of the 2002 ACT; however, these do not apply to ‘foreign criminal,’ as defined u/s 32(1) of the 2007 ACT. There is a separate right of appeal u/s 82 (3A) of the 2002 ACT for such cases.

Refusal to Revoke a Deportation Order u/s 5(2) of the 1971 ACT

Refusal to revoke a deportation order u/s 5(2) of the 1971 Act are appealable under section 82(2)(k) of the 2002 ACT.

A deportation order remains in force until it is revoked. A person can apply for a deportation order to be revoked and refusal to revoke carries a right of appeal.

Other Appealable Decisions | Appeal Rights Immigration UK

This page tells you about appealable Home Office decisions which are not ‘immigration decisions’ set out in section 82(2) of  Nationality, Immigration & Asylum Act 2002 (the 2002 act).

Appeals against Refusal of Asylum

A decision to refuse asylum is not in itself appealable but it is often accompanied by an appealable decision, such as a removal decision, and the asylum decision can be dealt with at that appeal.

However, u/s 83 of the Nationality, Immigration and Asylum Act 2002 a person refused asylum but has been granted leave to enter or remain for more than a year can appeal against the asylum refusal (on asylum or humanitarian grounds only).

Withdrawal of Refugee Status

Withdrawal of Refugee Status is Appealable u/s 83A of the Nationality, Immigration and Asylum Act 2002, provided the person is given limited leave on another basis.

Deprivation of Citizenship UK

In terms of Section 40 British Nationality Act 1981, any British citizen, British Overseas citizen, British overseas territories citizen, British protected person, British National (Overseas), or British subject may – by order – be deprived of their citizenship/status if:

  • the Home Office judges it would be conducive to the public good; or
  • citizenship was obtained by fraud, deception or concealment of a material fact.

Such refusal decisions are appealable u/s 40A(1) of the 1981 ACT.

Automatic Deportation UK

As of 1 August 2008 (subject to a few exceptions), all foreign national prisoners with a custodial sentence of twelve (12) months or more are subject to automatic deportation u/s 32 of UK Borders Act 2007 (the 2007 ACT). If such a sentence is imposed, Home Office is lawfully obliged to make a deportation order.

The automatic deportation orders are Appealable u/s 35 of the 2007 ACT (the appealable decision is Section 32(5) of the 2007 ACT).

EEA Appeals under Regulation 26 | Appeal Rights UK

EEA refusal decisions are appealable under regulation 26 of the Immigration (European Economic Area) Regulations 2006.

Regulation 26 (1) provides for appeal rights to arise in cases where an EEA decision has been made.

A European Economic Area (EEA) decision means a decision under these Regulations that concerns:

  • a person’s entitlement to be admitted to the United Kingdom;
  • a person’s entitlement to be dispensed with or have renewed, or not have revoked, registration certificate residence card, derivative residence card, permanent residence card or document certifying permanent residence;
  • a person’s removal from the United Kingdom;
  • the cancellation pursuant to Regulation 20A, of person’s right to reside in the United Kingdom;

Regulation 26(2) – (5) sets out the requirements an appellant must meet to exercise the right of appeal under Regulation 26(1) and specific restrictions that apply where such right can be exercised.

Regulation 27 sets out the circumstances in which an appeal may only be brought outside the UK.

Schedule 1(1) of the EEA regulations provides for an appeal against an EEA decision to be heard at the First-tier Tribunal as though it was an appeal against an immigration decision u/s 82(1) of the 2002 ACT. Schedule 1(1) also provides for most of the provisions of sections 82 to 106 of the 2002 ACT to apply to EEA appeals.

Fresh Evidence on Appeal UK

The whole case relating to the appellant is reheard at an appeal hearing at the First-tier Tribunal (Immigration and Asylum Chamber).

Fresh Evidence and Appeals u/s 85(4) of the 2002 Act

According to section 85(4) of the 2002 Act, an Immigration Judge may ‘consider evidence about any matter, including evidence which concerns a matter arising after the date of the decision. which it thinks relevant to the substance of the decision’. The evidence may relate to an appellant’s time in the UK (if any) and the time spent in his/her home country. Moreover, an appeal application may include fresh evidence which was not originally submitted to the Home Office at the time of the initial application but that has been correctly served on both the Home Office and the appeal’s tribunal since this point.

Fresh Evidence and Appeals u/s 85(5) of the 2002 Act

According to section 85(5), an appeal relating to an entry clearance refusal and certificate of entitlement cases by an appellant from outside the UK, the evidence is limited to matters arising before and on the date of the decision. However, section 85A (1) sets out the exceptions mentioned in section 85(5).

UK Spouse Visa Appeals and Fresh Evidence

For spouse visa refusal appeals under section 82(1) of the 2002 Act, subsection 85(5) is applicable, which constrains the provision of fresh evidence. For instance, if it was found that a sponsor did not have enough funds to maintain a spouse, then only bank statements relating to the date of the decision could be accepted as evidence – not bank statements relating to the time just prior to the hearing date. Therefore, before making a decision to appeal or reapply it is important to discuss with specialist UK spouse visa immigration solicitors to make the right decision for a successful outcome!

In Country Appeal UK and Fresh Evidence on Appeal UK

In recent years, the Immigration Rules have been evolving on the extent of including Fresh Evidence on Appeal UK – particularly with regards to in-country appeals before April 6, 2015, when Tier 1, 2, 4 or 5 migrants and then family members had the right to appeal if they had applied for leave to remain before 2 March 2015 (in case of Tier 4 migrants and family member before 20 October 2014) and the application was refused on or after 6 April 2015. And for other in-country appeals relating to changing (‘vary’) the length and conditions of stay in the UK and certificate of entitlement for applications made before April 6, 2015.

In quite a few instances, immigration judges stopped accepting any fresh evidence in these types of cases, i.e. any evidence that was not before the Visa Officer who made the initial Immigration Decision to refuse the application.

No Right of Appeal, Administrative and Judicial Review

If either a limited right of appeal or no right of appeal is mentioned in a refusal letter then keeping in view the merits of the case, one can file a Judicial Review against an immigration refusal decision. Depending on the circumstances of an applicant, either an appeal or an administrative review followed by a judicial review can be filed against refusal of an entry clearance standard visitor visa application, leave to remain and indefinite leave to remain application under points based system such as Tier 1 Entrepreneur, Tier 1 Investor, Tier 2 General Worker, Tier 4 Student.

No Right of Appeal for PBS Extension Applications

After April 6, 2015, in case of a refusal decision, Tier 1, 2, 4 or 5 migrants and their family members are not entitled to an in-country right of appeal. However, applicants may apply for an Administrative Review where they believe there is a fundamental case working error. Alternatively, an Applicant may have to resort to filing an Immigration Judicial Review claim.  The following Applications do not attract a Right of Appeal:

  1. Tier 1 Entrepreneur, Tier 1 Graduate Entrepreneur, Tier 1 Investor applications and Tier 1 Exceptional Talent visa applications;
  2. Tier 2 General, Tier 2 Intra Company Transfer, Tier Sportsperson and Tier 2 Minister of Religion visa applications;
  3. Tier 4 General Student and Tier 5 Youth Mobility Scheme visa applications;
  4. All dependent visas under the Points Based System.

If your Points Based System application has been refused and you wish to challenge the decision on the basis of a case working error then you must submit an Administrative Review within 14 days of receiving the original decision.  However, if your Point Based System application has been refused and the decision is unlawful you may wish to seek legal advice in regards to filing an Immigration Judicial Review claim.

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Related: File Immigration Appeal Against an In-Country DecisionRights of Appeal Immigration Act 2014UK Visa Appeal TribunalUK Visa Appeal Solicitors, UK Visa Refusals: How to Challenge Decisions? and Judicial Review Procedure Immigration Cases