Appeals Against An Immigration Refusal Decision

Appeals Against An Immigration Refusal Decision

Entering and Remaining in the UK, Removals, Deportation

This post highlights appealable immigration decisions as set out in section 82(2) of the Nationality, Immigration & Asylum Act 2002 and also elsewhere and covers the following topics:

  • Entering or remaining in the UK u/s 82(2);
  • Removal from the UK u/s 82(2);
  • Deportation from the UK u/s 82(2);
  • Other appealable decisions NOT covered u/s 82(2);

Entering or Remaining in the UK | Appeals Against An Immigration Refusal Decision

UK Visa Blog Immigration, Settlement, Refusal, Appeal Solicitors

The appealable immigration decisions relating to entering/remaining in the United Kingdom set out in Section 82(2) of Nationality, Immigration, and Asylum Act 2002. The details of which are as under:

i) Immigration Decision | Refusal of a 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 or which he/she seeks entry can appeal against such a refusal decision.

ii) Immigration Decision | Refusal of Entry Clearance

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).

iii) Decision | Refusal of a Certificate of Entitlement u/s 10 of the 2002 ACT

Such refusal decisions are Appealable u/s 82(2)(c) of the 2002 ACT.

iv) Decision | 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.

These immigration refusal decision are 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;

v) Decision 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).

vi) Decision | Revocation of indefinite leave to enter or remain u/s 76 of the 2002 ACT

These refusal decisions are Appealable u/s 82(2)(f) of the 2002 ACT.

B) Removal from the UK | Appeals Against An Immigration Refusal Decision

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:

i) Removal Decision | 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), (ba) or (c) of Immigration & Asylum Act 1999 (removal of a person unlawfully in the UK).

ii) Removal Decision | Control of Entry

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).

iii) Removal Decision | Persons with Statutorily Extended Leave

A refusal decision is Appealable u/s 82(2)(ha) 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).

iv) Removal Decision | 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.

v) Removal Decision | Seamen and Air Crews

A refusal decision is Appealable u/s 82(2)(ia) 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 air crews).

vi) Removal Decision | 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).

C) Deportation from the UK | Appeals Against An Immigration Refusal Decision

This page tells you about appealable immigration decisions relating to deportation as set out in section 82(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 act).

i) Deportation Decision | Refusal Decision u/s 5(1)

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 does 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.

ii) Deportation Decision | 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.

D) Other appealable decisions | Appeals Against An Immigration Refusal Decision

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).

i) Immigration Refusal Decision | 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).

ii) Decision | Withdrawal of Refugee Status

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

iii) Refusal Decision | Deprivation of Citizenship u/s 40 of British Nationality Act 1981 (the 1981 ACT)

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.

iv) Immigration Refusal Decision | Automatic Deportation

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).

v) Refusal Decision relating to European Economic Area (EEA)

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.
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